The wearing of wigs.
There is, unfortunately, no doubt that in the course of the trial (but in the absence of the jury) the learned trial judge twice made somewhat arch and oblique comments about the fact that neither senior nor junior counsel for the defence was wearing a wig. They contended and, very creditably, counsel for the prosecution agreed, that the learned trial judge’s remarks were open only to the construction that he was displeased that Mr. [Jeremy] Maher [S.C.] and his junior Mr. Michael Delaney were not wearing wigs.

Section 49 of the Courts and Courts Officers Act, 1995, provides as follows:

“A barrister or a solicitor when appearing in any court shall not be required to wear a wig of the kind heretofore worn or any other wig of a ceremonial type�.

It will be seen from this that, no doubt wisely and perhaps necessarily, the Oireachtas refrained from any attempt to specify the garb to be worn by professionals in court. But it did lay down that an advocate shall not be required to wear a wig and this law must be presumed to be consistent with the Constitution and valid. It must be said immediately that the learned trial judge did not attempt to require either counsel to wear a wig. But he commented in such a way as to make it quite clear to the barristers in question that he was displeased at their not wearing wigs and would be pleased if they did. To further this point he went out of his way to praise an apparently recently called barrister, who entered court wearing a wig, for his respect of the traditions of his profession.

We were invited to consider this point as a component of a more general allegation of cumulative prejudice.

In our view it is inconsistent with respect for the proposition that counsel may not be required to wear wigs to make arch (or any) remark about whether they are so equipped or not. A judge is in a powerful position; some of his powers are discretionary; advocates less doughty and experienced than Mr. Maher and Mr. Delaney might feel constrained in the interests of their client to conform with the judge’s obvious preferences in this regard. Needless to say there is no question in the conduct of this case of the slightest bias, or even appearance of bias in the conduct of the trial, but that is not the point.

Mr. Maher submitted that, though the remarks were made in the absence of the jury, they can only have had a discouraging effect on his client who, before the case had begun properly saw his counsel in some form of conflict with the judge. We do not think that this is a real apprehension. The remarks, though plain as a pikestaff to any lawyer, were obliquely couched and cannot have meant anything to the defendant. Moreover, the record of the trial makes it perfectly clear that Mr. Barnes, a person in a position of very great difficulty which he brought on himself by his decision to burgle a dwellinghouse, was defended not merely competently but doughtily, ingeniously, and eloquently. Both on reading the transcript and on hearing the arguments addressed at this appeal, the Court was moved to admiration of the defence afforded to Mr. Barnes. Some criminal cases start and develop in a way which favours the defence: this one developed in the opposite way but the defence team never flinched. Mr. Maher’s response to the first remark about wig wearing by the learned trial judge was, we venture to say, an entirely appropriate one.

Hardiman J doesn’t name the High Court judge in question at any stage during the course of his judgment, but both Captain Moonlight (linking here) and Tom Young say it was Carney J. Thanks, guys, for bringing this episode to my attention.