Change in law sought to deal with potential problem for new judicial complaints regime

Judges are seeking a change to the law to eliminate a legal obstacle that could prevent people who want to formally complain about a judge’s handling of a family law case from getting documents needed for their complaint.

The move follows a letter sent by the registrar of the Judicial Conduct Committee (JCC) of the Judicial Council to a number of people who have made formal complaints against judges concerning family law proceedings.

In it, the registrar declared they must first get that judge’s permission to release any of the in-camera material used in those proceedings. One complainant confirmed to The Irish Times that such had been received. It is believed similar letters have been sent to other complainants.

The letters were issued following a High Court judgment which addressed the legal position concerning the release to third parties of in-camera material from family law proceedings.

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The judgment was delivered by Mr Justice Max Barrett last October in a family law case.

It concerned the interpretation of section 40 of the Civil Liability and Courts Act 2004 which deals with the release of documents and materials in family law proceedings.

Mr Justice Barrett held there is “nothing” in section 40 “that varies or removes the traditional rule as regards obtaining the prior leave (permission) of the courts when it comes to the disclosure to third parties of documents, information or evidence generated in or garnered or gleaned from in-camera proceedings”.

An experienced family law solicitor told The Irish Times the judgment appears to mean there is “no alternative” but to have the same judge who heard the relevant family law case decide whether to grant an application to release, whether for the purpose of a complaint against a judge or any other purpose, the materials concerning that case.

“I would anticipate most applications for release of documents for the purpose of a complaint would be granted, but it’s not a good look for judges to be judges in their own cause,” he said.

The Judicial Council may be able to come up with a solution, he added.

In a written reply to queries from The Irish Times, Kevin O’Neill, secretary to the Judicial Council, said: “The detail of matters relating to particular family law proceedings and to judicial complaints are confidential and cannot be commented upon. It is the case that an issue has arisen in relation to the interpretation of a High Court judgment delivered in proceedings to which the Judicial Council was not a party.

“The registrar to the Judicial Conduct Committee has communicated with the relevant complainants and in doing so indicated a route by which it may be possible to progress a complaint in accordance with the judgment.

“In addition, the matter was discussed by the board of the Judicial Council, as a result of which a request for an appropriate statutory amendment has been made which, if implemented, would obviate the necessity for this step.”

Mr Justice Barrett’s judgment arose from divorce proceedings where a man who, in the belief he was a victim of deceit by his ex-wife’s solicitors in those proceedings, resulting in him incurring higher costs, asked a solicitor whether he had grounds for a criminal complaint.

When making that inquiry, the man, without getting prior court permission, disclosed certain materials from the divorce proceedings to the solicitor.

The man ultimately made a complaint to An Garda Síochána, who were also shown some of the in-camera material without permission of the court. Related complaints were made by the man to other entities, including the DPP, Legal Services Regulatory Authority and the Judicial Council.

Claims of deceit

Mr Justice Barrett said he was not required, in the High Court case, to decide the truth or otherwise of the man’s claims of deceit, which were strongly denied by his ex-wife’s side.

The ex-wife, the judge noted, was aggrieved the in-camera material was disclosed to third parties without prior permission of the court.

The judge rejected the man’s contention that section 40 effectively gave him a largely untrammelled right to disseminate material from in-camera proceedings without prior leave of the court and ruled that prior permission of the relevant judge is required for the release of such material.

The judicial misconduct complaints procedure became operational last October as part of a new judicial ethics and conduct regime provided for under the Judicial Council Act 2019. It provides for a range of sanctions, including the removal of a judge from office.

The first stage of the procedure involves the council’s secretary, Mr O’Neill, deciding if a complaint is admissible. A complainant can seek an internal review if it is deemed inadmissible.

Complaints that are upheld by the JCC may be addressed in various ways, including by advice, training, admonishment, or a combination of those or via an informal resolution process if the complainant consents to that.

Even if there is no complaint, the JCC can decide a matter relating to judicial misconduct or capacity is so serious it must be referred to the Minister for Justice under the Government’s constitutional power to remove a judge from office.