Council for dealing with judicial misconduct is long sought

The proposal to set up a judicial council comes following pressure from the Council of Europe, which has long called for an independent body with a code of conduct and a system to deal with misconduct by judges in the State.

This year, the Council of Europe returned to the issue and was told that Ireland would be fully in compliance by the time investigators from the body's Greco anti-corruption body next visit in March of next year.

Judges in Ireland have been calling for such a body for more than 20 years and legislation has been in the works since 2001. The proposed body would be entitled to investigate and reprimand, but the publication of decisions would be forbidden.

So how does the proposal compare with practice internationally? Under the Bill, a committee comprised of eight judges and five lay persons would examine allegations and set up a panel of inquiry if necessary.

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Exceptional circumstances

Every inquiry would be held in private, bar exceptional circumstances. It will be an offence, attracting a fine of up to €5,000 or a jail-term of up to 12 months, to publish any document or evidence provided to the inquiry.

Though the committee will issue an annual report, judges’ names will not be published, except if they fail to co-operate with the inquiry or fail to complete a sanction imposed on them.

The confidentiality provisions differ from the practice elsewhere, where the public is told of the names of judges disciplined, while the hearings are more routinely held in public.

The Judicial Council of Canada holds hearings in public when there is a risk a judge could be removed from office, and judges are named, even when complaints are dismissed.

In New Zealand, inquiries can be held in public after a preliminary investigation. Each state in the US has its own judicial conduct commission, hearings may be in public and the names of judges investigated are published. In New South Wales in Australia, the Judicial Officers Act 1986 allows for public hearings in some circumstances.

In England and Wales, the Judicial Conduct Investigations Office (JCIO) examines cases and makes recommendations to the lord chancellor, Conservative MP David Lidington, and the lord chief justice, Lord Thomas of Cwmgiedd. Hearings are not held in public, but the names of judges reprimanded and details of their conduct are routinely published. There can be exceptions to this, but publication is the norm.

Rejected as invalid

So far this year, disciplinary statements about 31 judges and magistrates have been published. Approximately half of all complaints are rejected as invalid without investigation because they deal with judges’ decisions rather than their conduct. Only a small number of complaints - just 2.5 per cent of them - are upheld.

Disciplinary decisions are removed from the website after one year, except for serious cases where a judge is suspended, or removed from office. Such cases stay on the site for five years.

There is no appeals process for the office’s decisions, though unhappy parties, including judges, may complain to the Judicial Appointments and Conduct Ombudsman.

Publication of judges' names is now considered "quite de rigueur", says Prof Fiona de Londras, deputy head of Birmingham Law School at Birmingham University.

The most important thing, in her view, is an avenue to raise complaints which are handled “effectively, efficiently and fairly” and where a resolution is reached that is appropriate. “That is important for the judges, for people using the courts, but also for the administration of justice, to ensure that people can continue to have faith in the judicial system,” she says.

Judges are different from other professionals, she accepts: “But it’s not clear to me that the judicial role is so different from other roles that it would necessarily be damaging to publish names.”

Effective, fair and proportionate

Grainne Mellon, a barrister practising in London, says the legal profession regards the JCIO as effective, fair and proportionate, and quite important for transparency and accountability rules surrounding the judiciary.

“It applies to barristers and solicitors here as well as to nurses and doctors, and it is difficult to see in principle why the judiciary are different,” she says.

However, Penelope Gibbs, a former magistrate and director of British charity Transform Justice, is not so confident about the work of the JCIO. She says part-time judges and magistrates are being publicly named and shamed, sometimes for very minor misdemeanours, while full-time, paid judges "get away with murder".

“Disciplinary procedures are opaque and can seem unjust,” she says.

She quotes the case of magistrate Colin Speight, who was subject to an investigation after he entered the magistrates' assembly room at Bedlington Magistrates' Court when he was not sitting as a magistrate. He was told his behaviour fell below the standards expected of a magistrate, was issued with formal advice and his name was published on the JCIO website.

“I can’t believe a paid judge would be formally, publicly reprimanded for being in the wrong room,” Ms Gibbs says.

So far, no High Court judges in England or Wales and very few circuit judges have received reprimands or worse, Ms Gibbs says. The vast majority of complaints, more than 75 per cent, were against magistrates.

“It is hard not to conclude that senior judges get away with mistakes virtually scot-free, while lowly magistrates and part-time judges are punished severely for minor misdemeanours, via an unjust process,” she says.

“It is likely that senior judges transgress less, but their total absence from the JCIO list of the named and shamed is a little odd.”

Case studies

1) The Judicial Conduct Investigations Office issued recorder (part-time judge) Donald Peter Herbert OBE with formal advice after he made a public speech criticising a decision by an election commissioner to declare void a candidate's election for mayor of Towers Hamlet. A disciplinary panel found his comments were inappropriate and put the reputation of the judiciary at risk, which amounted to misconduct. The lord chief justice and lord chancellor agreed and wrote to Mr Herbert with formal advice regarding his future conduct.

2) Judge Philip Shorrock was subject to a conduct investigation following complaints about a letter he wrote to a national newspaper. In the letter, he commented on the Crown Prosecution Service's approach to rape cases and cited his status as a judicial office holder. The lord chief justice and lord chancellor found he had commented publicly on a politically sensitive issue without seeking guidance from the relevant leadership judge and that his behaviour amounted to misconduct. He was issued with a reprimand.

3) Judge Simon Newell, a circuit judge based in Preston, was subject to an investigation into his conduct following an article published on The Sun newspaper's website. The article set out a dispute the judge had had with a bar owner who would not allow him to take his dog inside. The lord chancellor and lord chief justice considered the judge "displayed serious errors of judgment and had failed to fully acknowledge the implications of his actions or any wrong doing". They concluded that this behaviour amounted to serious misconduct and issued a reprimand.

4) Part-time judge Jason Dunn-Shaw, a recorder in Canterbury, was removed from the bench after posts on a newspaper website in which, using a pseudonym, he called his critics "donkeys". The JCIO said it conducted an investigation and found the judge had also used social media sites to post material in his own name or had not removed material, posted when he was a barrister, which was "not compatible with the dignity of judicial office or suggested a lack of impartiality on matters of public controversy". He was removed from judicial office.

5) District judge Christopher Falvey was investigated following a complaint of a serious delay in producing a judgment. The lord chancellor and lord chief justice found the delay was unacceptable and concluded his behaviour amounted to misconduct, having fallen below the standards expected of a member of the judiciary. He was issued with formal advice.