The resignation of a judge is a rare event in Ireland, but the resignation of a judge on his or her own terms is even rarer.
District Court judge Brian O’Shea, who resigned this week after eight years on the bench, falls into the latter category.
Mr O’Shea, who worked as a Garda and college lecturer before embarking on a legal career, is returning to his career at the Bar. He had practised for 12 years, mainly in criminal work, prior to his appointment in 2017 as a judge of the District Court.
“I’m really happy to be going back, I’ve been on the bench for eight years and I really missed my trial work,” he told The Irish Times.
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“It’s as simple as that.”
He warmly thanked the council of The Bar of Ireland, the Legal Services Regulatory Authority and the King’s Inns for the “straightforward” process involved in facilitating his return to practice. He plans to practise mainly on the southeastern circuit.
Another judge and barrister, senior counsel Barry White, had encountered greater difficulties when he sought to return to the criminal Bar following his compulsory retirement in 2014, because he had reached the age of 70, as a High Court judge.
Mr White, who won a legal challenge overturning the Minister for Justice’s decision to exclude him from a criminal legal aid panel, argued he needed to return to practice for financial reasons.
While the Minister had cited a Bar Council rule preventing a judge resuming practice in a court equal to, or lower than, the court where they presided, the High Court said that rule was not a rule of law. The court, having found the Bar is effectively a private club entitled to operate its own rules, declined to declare its rule unconstitutional.
A former chief justice, Frank Clarke, who retired in 2021 aged 70, is a member of the Bar of Ireland. While entitled to appear before European courts, he has focused on mediation and arbitration work here. In 2022, he was appointed President of the Law Reform Commission and chair of the Civil Legal Aid Review Group.
Security of income and pension may be a factor in the very low number of voluntary departures from the bench before the retirement age is reached.
While admitting to a degree of anxiety about leaving a pension and gratuity behind, Mr O’Shea said he took “very good” pension advice before making his decision to resign. Financial issues, he believes, may contribute to some judges staying on after they have “contributed to the fullest possible extent”.
There are also “restrictive” prospects for elevation from the District Court bench, with not one District Court judge among the last 38 appointees to the Circuit and High Courts, he added.
