Controversy highlights need for way of agreeing on judicial behaviour, writes Carol Coulter.Analysis
The Chief Justice outlined his objections, through the spokesman for the Courts Service, to the paper Mr Justice Carney was about to give to a law conference at the weekend. He is one of the longest-serving judges on the High Court bench and the presiding judge in the Central Criminal Court.
He was going to refer to matters in the recent past, or still current; they may still present themselves to another court in another form (in an appeal); and judges should not discuss publicly cases they presided over, according to Mr Justice Keane.
It must be said that Mr Justice Carney's paper, which has been seen by The Irish Times and other media, did not go into the merits of the cases referred to. The judge pointed out how the heavy security around one particular case may have contributed to the difficulties of empanelling a jury, stressed that other cases had gone ahead without any problems, and suggested that the experiment of the Central Criminal Court sitting in Limerick, which he initiated, had so far been a success.
No appeals are pending in relation to the cases referred to, but they could yet arise. However, it is the third point raised by the Chief Justice that is likely to strike the loudest chord with other members of the judiciary and, indeed, the wider legal profession.
Barristers, from which until recently all members of the senior judiciary were drawn, are prohibited from discussing cases in which they were, or are, involved. Most members of the judiciary would feel this practice extends to them.
Mr Justice Carney, more than any other judge, engages in public debate about the criminal justice system. He is also more familiar with the media than most of his colleagues. While this may be welcomed by the media, and does generate public discussion of the criminal justice system, it does not endear him to his colleagues.
They feel that, in general, judges should shun publicity, and when they do engage in public debate, deal with general principles rather than specific cases.
The problem is, there is no code of conduct for judges, and no mechanism for imposing a general standard for matters like commenting on the justice system. Proposals from a committee chaired by the Chief Justice to establish a judicial council, sent to the Government three years ago, have not yet been acted upon, though legislation has been promised this year.
That report from the Chief Justice recommended the setting up of a judicial council with three committees, a judicial conduct and ethics committee, a judicial studies and publications committee and a general committee, the latter to deal with matters of remuneration and conditions.
This is not to say that Mr Justice Carney has transgressed any ethical norm. His paper was an evaluation of an experiment in criminal justice that generated considerable public debate, and that is still ongoing. Information on that experiment is valuable.
What the controversy reveals is the lack of any forum where the judiciary can decide collectively what should and should not be commented on publicly, and the mechanisms for maintaining any agreement arrived at.