Opinion

Maintaining public confidence in the judicial system is crucial

The work of the Judicial Council can enhance consistency and transparency

Calibrating the way in which we convert injuries to sums of money or offences to terms of imprisonment is crucial to broad acceptance of what happens in our courts. Photograph: Collins Courts

Frank Clarke
Tue Jul 27 2021 - 01:31

Predictions are risky. If they come true, they are rarely remembered unless they were quite radical. If they are within your own field and turn out to be wrong, questions will be asked. However, I am prepared to take the risk and predict that, in time, the establishment and work of the Judicial Council will be seen as one of the most significant steps in maintaining public confidence in the Irish judicial system.

I say maintaining because all international surveys place Ireland towards the top of the table so far as confidence in the judiciary is concerned. Ireland ranks 12th (of 140) for judicial independence in the Global Competitiveness Report. The Group of States Against Corruption (GRECO) speaks of “a high degree of independence and integrity” and a “very high degree of trust from the public”. The EU Commission Rule of Law Report says perceived independence of judges remains high.

However, that position cannot be taken for granted. Changing times demand changing methods. The systems that built that confidence may not be able to sustain it. That is where the Judicial Council comes in.

Calibrating the way in which we convert injuries to sums of money or offences to terms of imprisonment is crucial to broad acceptance of what happens in our courts

The council consists of all of the judges of Ireland. It is managed by a board consisting of court presidents and elected judges. However, much of its day-to-day business has been and will be conducted by committees. It is to the work of those committees that provides the mechanisms which I hope will fulfil my prediction.

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While each committee deals with a different area, I see them as being complementary. Injury awards may seem very different from sentencing for crime. However, they have one important thing in common. There may be relatively broad agreement about whether one injury is a lot more serious than another. While there may be a little more room for debate, there is a relatively broad consensus about the relative seriousness of criminal offences. Turning that broad agreement into euros for damages or years for sentences may not bring the same consensus.

Calibrating the way in which we convert injuries to sums of money or offences to terms of imprisonment is crucial to broad acceptance of what happens in our courts. Enhancing consistency can only enhance confidence in the system. Allowing a proper public debate about the calibration itself is also very valuable.

The Personal Injuries Guidelines Committee has completed the first phase of its work, with its draft guidelines now adopted by the full Judicial Council. As one commentator suggested, the fact that some felt the guidelines went too far and some not far enough perhaps suggests that they were not too far off the mark. However, as there are now a number of challenges to the guidelines before the courts, I should say no more on this.

If there is an enhanced level of consistency and transparency it can reasonably be hoped that the public will understand more fully how these things operate

While the injuries committee consists entirely of judges, the sentencing committee has a number of lay members appointed through the Public Appointments Service. Its work is more medium term but it has already embarked on an ambitious programme. Given the limited data and research on sentencing in Ireland, the committee has appointed the University of Strathclyde to carry out detailed research which will set the direction of the committee’s work. It is also envisaged that there will be significant public engagement.

Both the Sentencing and Personal Injuries Guidelines Committees will be ongoing projects for many years which will be fine-tuned to reflect the experience gained. Both systems will also retain a sufficient degree of flexibility to ensure that all relevant factors can be taken into account in a particular case. Not everyone will agree with every award or every sentence. But if there is an enhanced level of consistency and transparency it can reasonably be hoped that the public will understand more fully how these things operate. That only can maintain and build confidence.

I also see the training and conduct functions of the council as being complementary. Training, whether in judicial ethics or skills or in relation to evolving areas of the law, can only reduce the number of legitimate complaints which can be made. But where there are still significant shortcomings, it is important that the public are able to see that something can and is being done about it.

It is unfortunately true that, in the past, there was little or no induction or training for judges. I sat on the Court of Criminal Appeal on my first day working as a judge. It should be emphasised that things have already changed, some of it before the establishment of the Judicial Council.

The pace of that change has radically altered since the appointment of Judge Mary Rose Gearty as a part-time judicial director of training. It is no longer true to say that judges are left to their own devices to develop skills and knowledge. There are ambitious plans in place to greatly expand the training function of the Judicial Council. A process to select a non-judicial associate director of judicial studies will commence shortly as will moves to recruit additional staff to support the training function. Building on what has been done to date, I am confident that, within a year, we will have made great strides towards putting in place a modern training scheme up to the best international standards.

We have been remiss in not having in place structures to help judges deal with what can often be a stressful job

The conduct committee has recently adopted procedures to be followed in respect of complaints made by the public about judges.

Importantly, the conduct committee has sent forward draft ethical guidelines to the board. Those guidelines will be finalised by the board after a period of consultation and sent to the full Judicial Council for adoption.

In parallel with this process, staff and IT will be put in place to manage the complaints system. It is hoped that all of these elements will come together in the latter part of this year so that the complaints process can go live in the earlier part of next year.

We have been remiss in not having in place structures to help judges deal with what can often be a stressful job. We need to give judges help in better managing their own workload.

In addition, the council has established structures designed to help judges who suffer stress. That is important in itself but it also can assist in ensuring that court cases are properly conducted and that fewer valid complaints can arise.

Whether enhancing consistency and transparency, or improving standards through training, welfare and a conduct regime, I predict that these strands will combine to build on the already high level of public confidence.

Mr Justice Frank Clarke is the Chief Justice

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