The Medical Council holds inquiries into complaints against doctors, most often in public, and those found guilty of misconduct are named. Nurses, social workers and pharmacists are subject to similar actions.
The Legal Services Regulatory Authority, once fully functioning, will hold inquiries into the conduct of barristers and solicitors in public.
As Dr Laura Cahillane, of University of Limerick has said, accountability has become critical for almost all sectors and institutions. But for some reason, we do not apply the same standards to judges, who remain, in the eyes of many members of the public, untouchable.
The Judicial Council Bill 2017 goes a long way toward addressing accountability, as well as encouraging training and support for judges.
It allows for the setting up of a judicial council and a series of committees, including a judicial conduct committee (JCC). Comprised of eight judges and five laypersons, it is this committee that will accept complaints about judges’ misconduct. If a complaint cannot be resolved informally, it will be investigated by a panel of inquiry.
Inquiries will be held in private, unless the JCC directs that “to safeguard the administration of justice” an inquiry should be held in public. The panel of inquiry, made up of two judges and one layperson, will make findings and recommendations to the JCC.
Sanctions
The committee will then decide on any sanction required, which could include issuing advice to a judge, a recommendation that the judge undergo training, or that the judge be admonished. Admonishment is not defined in the legislation.
When misconduct is deemed serious enough to warrant it, the case must be referred to the Minister for Justice and the Minister must propose a motion for the removal of the judge under article 35 of the Constitution.
Witnesses can be compelled to attend an inquiry, will be guilty of an offence if they do not, and may be fined up to €5,000. Where a judge fails to co-operate, he or she may be reprimanded and other steps may be taken to “safeguard the administration of justice”.
Inquiries will be in private and 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.
And although the committee will issue an annual report outlining statistics on the investigations, judges’ names will not be published, unless they fail to co-operate or to complete a sanction imposed on them.
So far this year, in England and Wales, disciplinary reports on 31 judges and magistrates have been published by the Judicial Conduct Investigations Office, naming judges and the action taken against them. Similar steps are taken in Canada, New Zealand and the United States.
While there is no doubt the calibre of judges in Ireland is high, like all humans, they behave improperly sometimes.
Research carried out by Dr Cahillane includes a case in which a judge described the social welfare system as “a charity for Polish people”, another in which a judge referred to Travellers as “Neanderthal men” and a third in which a judge appeared before himself on an NCT charge.
If the Judicial Council Bill becomes law, cases such as these could be investigated for possible misconduct. Such inquiries would be a great step forward, but the public will not know who the judges involved are.
Public confidence in the judiciary requires not only accountability for misconduct but transparency and that is not achieved under the legislation. Judges who behave improperly should be named.