Judiciary sought ‘legal aid’ for judges under investigation

Members of the judiciary unsuccessfully lobbied the government to pay the legal costs of judges who are investigated for misconduct.

The request, which was contained in a 2015 memo from then chief justice Susan Denham to then minister for justice Frances Fitzgerald, stated that judges who are before the proposed judicial conduct committee should be entitled to legal representation and should be able to recoup legal costs from the Minister for Justice.

The memo, which has been seen by The Irish Times, was in response to a request by Ms Fitzgerald for the judiciary's thoughts on a draft of the Judicial Council Bill.

Such a Bill was first proposed more than 17 years ago to, among other things, provide for a mechanism for complaints about judicial misconduct.

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Last June, the government published the heads of the latest version of the Bill which would establish a judicial conduct committee which could investigate complaints against judges and issue sanctions. It is expected to pass the Dáil later this year.

The chief justice’s memo contained many suggested changes to various parts of a draft Bill, most of which appear to have been accepted by the minister and incorporated into the 2017 Bill.

However the minister did not accept the judges’ suggestion that legal costs be met by the State.

Ms Denham said she and her colleagues felt it was important that a judge be given access to legal representation in answering a complaint, “so as to ensure that the judge’s legitimate rights are vindicated”.

A source in the Department of Justice said if there were a “reluctance to grant legal aid for judges” due to the fact that, unlike a court, the proposed committee would have limited powers of punishment.

Admonish

The committee would be able to admonish judges or order them to undergo training but would not be able to remove a judge from office as the Constitution states this can only be done by the Oireachtas.

The Bill’s drafters were also conscious that members of other professions, such as doctors and solicitors, must pay their own legal expenses when before a misconduct inquiry.

The memo also indicates that members of the judiciary were concerned that the 2015 draft of the Bill would allow inquires of judges to take place in public.

Ms Denham noted a previous version of the Bill stated the default position was that inquires would be held in private.

She said this was needed to ensure the investigation of a complaint would “not undermine the position of the judge concerned in carrying out his or her functions”.

Closed doors

The memo noted that Oireachtas inquiries involving the impeachment of a judge were held in private and therefore committee inquiries should also be held behind closed doors.

She requested that the privacy provision in the draft be amended so that inquiries were held in private “unless otherwise requested by the judicial conduct committee on a request by the judge concerned”. This suggestion was accepted by the minister and appears in the final Bill.

The final Bill also states that the decisions of the committee would also be private even if a complaint against a judge is upheld.

Anyone who discloses evidences from an inquiry could be prosecuted and face up to a year in prison or a €5,000 fine. Judges identities will also be excluded from the council’s annual report.