It is most reassuring that the informal investigation of the brief 2010 courtyard conversation between Judge Desmond Hogan and Mr Justice Henry Abbott should find that it did not result in any influence on the outcome of a family case the latter was ruling on. Reassuring, but hardly the end of the story. Important questions remain unanswered.
The presidents of the High and Circuit Courts, respectively Mr Justice Nicholas Kearns and Mr Justice Raymond Groarke, conducted a short inquiry and have made clear their disapproval of Judge Hogan's decision to raise the case with his colleague.
But in their joint statement they quote the judge, in their words, as insisting that “there had been absolutely no intention of interfering with the case or influencing its outcome in any way”. They record that Judge Hogan, whose recollection of the event was disappointingly vague, deeply regretted that his words should have been interpreted as doing so.
Clearly, however, although we are not told so explicitly, it appears that Mr Justice Abbott read the conversation in that light – there can be no other reasonable explanation for his lingering concern about the incident, or for the questions he raised later with the parties to the case. And whether Judge Hogan intended to interfere or not, like Caesar’s wife he must be above suspicion, and the onus must be on him convincingly to answer the charge.
Yet the court presidents decided not to pronounce on that central issue by critically probing Judge Hogan’s intentions, and have confined themselves instead to the important, but ultimately subsidiary, issue of exonerating Mr Justice Abbott for not being influenced.
Once again sensitive questions about the propriety of judicial behaviour are to be answered by an informal inquiry procedure with some moral authority but no legal standing. Its inevitably uncertain outcome must surely be as unsatisfactory to Judge Hogan, over whom a shadow will certainly remain, as it is to the whole judiciary and to the public's confidence.
For over 20 years the case has been made and clearly won for new judicial accountability and specifically the establishment of an independent judicial council to deal with judicial training, standards, appointments and discipline. It is long overdue – promised legislation, a Judicial Council Bill, due this year, has been delayed, according to the Department of Justice by competing demands from troika-mandated legislation, and will now not be published until next year.
The alternative, the status quo, means that every time the politics of new appointees to the bench are raised, every time judicial salaries hit the press, and every time an ambiguous encounter in a courtyard explodes into the limelight, once again authority-sapping questions are raised about judicial independence.