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Barristers’ Court Dress

By: Mark Tottenham BL

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(Originally published in Law Ireland in May 2020)

In 1995, quite a stir was made when the barristers’ wig, formerly considered obligatory, was made optional under section 49 of the Courts and Courts Officers Act of that year. Some traditional judges were unimpressed by counsel who appeared before them wigless. Comments concerning bareheaded barristers by a judge in the Central Criminal Court formed part of the grounds of appeal in D.P.P. v. Barnes [2006] IECCA 165. The comments were criticised by Hardiman J in the Court of Criminal Appeal, but the appeal was not successful.

Section 49 of the 1995 Act was amended, by section 213 of the Legal Services Regulation Act 2015, to read: “A legal practitioner when appearing in any court shall not be required to wear a wig or a robe of the kind heretofore worn or any other wig or robe of a ceremonial type.” The section was commenced on 7 October 2019, but it has not attracted much attention, and the overwhelming majority of barristers continue to wear gowns much as they did before.

Although the uniform of wig, gown, winged collar and starched bands or ‘tabs’ was considered mandatory until 1995, there seems not to have been any legislative basis for it. According to 'Wigs: A secret history' by Dan Stacey BL (Counsel, 2008), in England, wigs were a matter of fashion until the mid-18th century. They were abandoned by solicitors in the 1820s, around the time that one Mr Humphrey Ravenscroft patented a ‘powderless’ wig, which required less upkeep than those worn hitherto. 

By the 1840s, this court dress was considered mandatory, as illustrated by a short report in the case of R v. Whittaker (1844) 8 J P Jo 390. A barrister acting for the prosecution was in court, but not in wig and gown, when an application was made for bail in a case of forgery. The report continues:

“Coleridge J: I neither see nor hear Mr Bodkin.

Bodkin: I am afraid I am not at this moment in a condition to ask to be heard.

Bodkin then retired, and having attired himself in his wig and gown, returned into court.

The prisoner was then admitted to bail by consent.”

There did not seem to have been any move to abandon the traditional court dress when Ireland became independent. In family law cases, wigs and gowns were removed several years ago, although it is common for counsel to wear wing collars and tabs, or collarettes, in such hearings, probably to distinguish them from other court professionals.

While barristers’ court dress is often commented upon as an anachronism, many other professions and occupations have uniforms or ‘dress protocols’, the purpose of which is to distinguish them from other occupations, or to inspire confidence from customers. Staff in airlines and fast food restaurants are expected to wear a uniform. Medical professionals still wear white coats or ‘scrubs’ when appropriate.

In the Oireachtas, there used to be a ‘dress protocol’, requiring members to wear the professional attire considered appropriate. This was challenged in the early 1990s by Senator Pól Ó Foighil, who opted to wear a traditional woollen ‘báinín’ jacket. The jacket had been ruled unacceptable by the chief of protocol, but the challenge was successful.

In more recent times, members of the Dáil and Seanad have been seen wearing very casual clothes - even sleeveless t-shirts. In 2016, some controversy was raised when a number of TDs wore jumpers emblazoned with the slogan ‘Repeal’, in advance of the abortion referendum of that year.

On the bench, until 2012, judges wore the old uniform as worn in British and colonial courts, although wigs had been phased out earlier. Since then, they have been replaced by robes specially designed for them by designer Louise Kennedy.

Now that gowns as well as wigs have been ruled optional, it is possible that barristers will drift into wearing anything between a simple suit and tie, to wearing the full regalia of wig, gown, winged collar and tabs. Perhaps it is time for a new ‘dress protocol’.

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