This year, the Council of Europe returned to the issue and was told that Ireland would be fully in compliance by the time investigators from the body’s Greco anti-corruption body next visit in March of next year.
Judges in Ireland have been calling for such a body for more than 20 years and legislation has been in the works since 2001. The proposed body would be entitled to investigate and reprimand, but the publication of decisions would be forbidden.
So how does the proposal compare with practice internationally? Under the Bill, a committee comprised of eight judges and five lay persons would examine allegations and set up a panel of inquiry if necessary.
Every inquiry would be held in private, bar exceptional circumstances. 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.
Though the committee will issue an annual report, judges’ names will not be published, except if they fail to co-operate with the inquiry or fail to complete a sanction imposed on them.
The confidentiality provisions differ from the practice elsewhere, where the public is told of the names of judges disciplined, while the hearings are more routinely held in public.
The Judicial Council of Canada holds hearings in public when there is a risk a judge could be removed from office, and judges are named, even when complaints are dismissed.
In New Zealand, inquiries can be held in public after a preliminary investigation. Each state in the US has its own judicial conduct commission, hearings may be in public and the names of judges investigated are published. In New South Wales in Australia, the Judicial Officers Act 1986 allows for public hearings in some circumstances.
In England and Wales, the Judicial Conduct Investigations Office (JCIO) examines cases and makes recommendations to the lord chancellor, Conservative MP David Lidington, and the lord chief justice, Lord Thomas of Cwmgiedd. Hearings are not held in public, but the names of judges reprimanded and details of their conduct are routinely published. There can be exceptions to this, but publication is the norm.
So far this year, disciplinary statements about 31 judges and magistrates have been published. Approximately half of all complaints are rejected as invalid without investigation because they deal with judges’ decisions rather than their conduct. Only a small number of complaints – just 2.5 per cent of them – are upheld.
Disciplinary decisions are removed from the website after one year, except for serious cases where a judge is suspended, or removed from office. Such cases stay on the site for five years.
There is no appeals process for the office’s decisions, though unhappy parties, including judges, may complain to the Judicial Appointments and Conduct Ombudsman.
Publication of judges’ names is now considered “quite de rigueur”, says Prof Fiona de Londras, deputy head of Birmingham law school at Birmingham University.
The most important thing, in her view, is an avenue to raise complaints which are handled “effectively, efficiently and fairly” and where a resolution is reached that is appropriate. “That is important for the judges, for people using the courts, but also for the administration of justice, to ensure that people can continue to have faith in the judicial system,” she says.
Judges are different from other professionals, she accepts: “But it’s not clear to me that the judicial role is so different from other roles that it would necessarily be damaging to publish names.”
Grainne Mellon, a barrister practising in London, says the legal profession regards the JCIO as effective, fair and proportionate, and quite important for transparency and accountability rules surrounding the judiciary.
“It applies to barristers and solicitors here as well as to nurses and doctors, and it is difficult to see in principle why the judiciary are different,” she says.
However, Penelope Gibbs, a former magistrate and director of British charity Transform Justice, is not so confident about the work of the JCIO. She says part-time judges and magistrates are being publicly named and shamed, sometimes for very minor misdemeanours, while full-time, paid judges “get away with murder”.
“Disciplinary procedures are opaque and can seem unjust,” she says.
She quotes the case of magistrate Colin Speight, who was subjected to an investigation after he entered the magistrates’ assembly room at Bedlington magistrates’ court when he was not sitting as a magistrate. He was told his behaviour fell below the standards expected of a magistrate, was issued with formal advice and his name was published on the JCIO website.
“I can’t believe a paid judge would be formally, publicly reprimanded for being in the wrong room,” Gibbs says.
So far, no High Court judges in England or Wales and very few circuit judges have received reprimands or worse, Gibbs says.
The vast majority of complaints, more than 75 per cent, were against magistrates.
“It is hard not to conclude that senior judges get away with mistakes virtually scot-free, while lowly magistrates and part-time judges are punished severely for minor misdemeanours, via an unjust process,” she says.
“It is likely that senior judges transgress less, but their total absence from the JCIO list of the named and shamed is a little odd.”
Judicial Council (Opinion from Irish Times 5th. September 2017)
Judges’ decisions can have profound, life-altering effects on the State they serve and the individuals who come before them. Yet the importance of the judicial office has never been reflected in the structures by which we select, train, scrutinise and regulate those who sit on the bench. Judges are chosen through an opaque, ad hoc and indefensible system. When they take office, they receive no instruction on how to be a judge. When they behave badly, nothing – or at least nothing short of the nuclear option of impeachment – can be done to censure or punish them.
A flawed selection system was tweaked in the 1990s, and is in the process of further change. But for almost 20 years, successive governments have promised a regime for the disciplining, education and training of judges, and each administration has failed to deliver. The proposal for a judicial council first emerged in 1999. Every governing party since then has supported the idea, and the judiciary – despite initial resistance within its ranks – has long been calling for it, but still nothing has materialised.
Now, with the Fine Gael-led Coalition finally about to put that right, it emerges that its draft legislation – the Judicial Council Bill – contains provisions that, if enacted, will undermine some of the very principles behind the reform. Under the Bill, the identity of judges reprimanded for behaving improperly will be protected. Only in exceptional circumstances will inquiries into alleged misconduct by judges be held in public, and any court action related to an investigation will take place behind closed doors. What’s more, anyone who discloses information used in such an inquiry will face a fine of up to €5,000 or a year in jail.
With this entirely wrong-headed emphasis on secrecy, a measure designed to instil confidence in the judicial system will have the opposite effect, reinforcing the impression that judges are a cosseted elite held to different standards of transparency from other public-office holders. It also appears to fit a pattern. A system that purports to care about open justice does not, in general, allow access to court documents and other basic information routinely available in other jurisdictions.
It’s a pious mantra in the legal profession to say we are blessed with our judiciary. As anyone who has ever sat in court knows, the truth is that judging is a profoundly human business that naturally reflects the best and the worst of the legal profession and, more broadly, of Irish society itself. Good judges have nothing to fear from a transparent disciplinary regime of the kind that operates in other common law countries, including England, Wales and Canada. On the contrary, such a system will help strengthen the high public esteem in which, according to opinion polls, judges continue to be held. The Government should amend its Bill.