Every controversy concerning a judge once again raises the issue of disciplinary procedures for the judiciary, writes Carol Coulter, Legal Affairs Correspondent
The remarks of Judge John Neilan about immigrants are a minor affair compared with the constitutional crisis that threatened to engulf the judiciary around the time of the Philip Sheedy affair.
Allegations were made then about the behaviour of a High Court judge, Mr Justice Cyril Kelly, and a Supreme Court judge, Mr Justice Hugh O'Flaherty, concerning the early release of a man convicted of drunk-driving. The Chief Justice, Mr Justice Hamilton, was asked to carry out an inquiry, in which he criticised the two judges, though his harshest criticism was reserved for Mr Justice Kelly. They resigned, thereby averting the issue of impeachment, which had been discussed and would have been unprecedented.
This was, and remains, the only way of removing a judge of one of the higher courts from office. District Court judges, however, can face an inquiry called by the Minister for Justice.
No one has suggested that Judge Neilan's remarks concern the administration of justice in a way that could conceivably have such grave consequences.
However, the widespread controversy they caused, and the insensitivity displayed, does raise issues both about the training and the disciplining of judges. Judge Neilan is reported as saying that the majority of shopping centres in Longford would ban "coloured" people from entering them, if an alleged spate of shop-lifting by members of the immigrant community did not stop.
He did not advocate such a ban, and his remarks are at least open to the interpretation that he was warning the two women from the Ivory Coast appearing before him that they were risking retaliatory behaviour against a whole community. But his use of the word "coloured" shows insensitivity, at best. Further, he neglected to point out that any such ban on entry to a premises based on skin colour would be contrary to the Equal Status Act, and therefore itself illegal.
The chief executive of the Equality Authority, Mr Niall Crowley, told The Irish Times the incident underlines the need for judicial training in this area. "This is not an isolated incident," he said. "It comes up regularly. Training would support judges in new social contexts and constantly changing contexts. We would welcome an involvement in such training."
Asked if the authority had ever been asked to assist in any judicial training on equality issues, he said it had not.
While there may be a gap in the training of judges, there is certainly a yawning hole in provisions for regulating their conduct if and when complaints arise.
This was first highlighted by the Sheedy affair, which coincidentally took place around the time of the publication of the sixth report of the Courts Commission, chaired by Ms Justice Susan Denham. This recommended a Judicial Conduct Committee, to be modelled on similar committees in other common law jurisdictions.
The Chief Justice set up a committee on judicial conduct and ethics, which produced a report in 2000. This proposed a Judicial Council, to be made up of all judges, with a Judicial Conduct and Ethics Committee which would investigate complaints against members of the judiciary. If found to have substance, the complaints would then go to a Panel of Inquiry, which would have a lay representative appointed by the Attorney General. The panel could recommend a series of sanctions, ranging from a reprimand to a recommendation for dismissal.
The Chief Justice, on behalf of the judiciary, expressed a wish for speedy legislation on this report, but it did not materialise.
The last Government brought forward its own proposals for regulating judicial conduct, which would have required a referendum because of the guarantee of judicial independence in the Constitution. However, it failed to find all-party support in the Dáil and withdrew its proposals rather than have such an issue a matter of political division.
This is where the matter rests, although the Programme for Government includes proposals for legislation on judicial ethics, and the Tánaiste said yesterday these would be brought forward in 2004.
Meanwhile, some provisions do exist for dealing with district judges whose behaviour is thought to reflect badly on the status of the judiciary.
In the first instance, the judge can be asked to explain his words or actions to the president of the court in question, here Judge Peter Smithwick. The presidents of the different courts are responsible for the conduct of business within their jurisdictions. Their power is a moral one, however, and there is no statutory obligation on any judge in their courts to respond to an invitation for such a discussion.
Where the matter gives rise to grave concern, the Minister can, under Section 21 of the 1946 Courts of Justice (District Court) Act, ask the Chief Justice to appoint a High Court judge to "inquire into the health or conduct of a judge".
This is what happened in 2000, when Mr Justice Murphy was asked to inquire into allegations from members of the Garda Síochána that Judge Donal Ó Buachalla had acted improperly in his handling of the licensing of Jack White's Inn. This was owned by Mr Tom and Mrs Catherine Nevin, who were friends of the judge. Catherine Nevin was at the time charged with the murder of her husband, and later convicted.
The gardaí in question eventually withdrew their allegations, and Murphy inquiry ended in the total exoneration of Judge Ó Buachalla.
Had that not happened, however, it could have resulted in a report going to the Minister which could have led to a process of impeachment in the Dáil.