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19 October 2010
Judicial Conduct Committee
Judicial Studies Institute
After a long gestation period, the general scheme of the Judicial Council Bill 2010 has finally been published. Among other things, the proposed bill envisages the establishment of a Judicial Conduct Committee, which will be responsible for the investigation of complaints relating to judicial misconduct. Under the existing regime, a judge can be removed from office only for "stated misbehaviour or incapacity", and then only if a joint resolution is adopted by both houses of the Oireachtas (Parliament). This constitutes a very high threshold. The proposed new regime addresses less serious misconduct and represents a significant change to the level of review to which judges are subject.
A mechanism by which judicial misconduct might be subject to review has been under consideration since the Philip Sheedy Affair of 1999, which resulted in the resignation of both a Supreme Court judge and a High Court judge. At that time, the Working Group on a Courts Commission recommended the establishment of a Judicial Council to (i) promote excellence and efficiency in the performance by judges of their judicial functions and (ii) provide a process for investigating complaints of alleged breaches of judicial ethics. The then chief justice established a committee to examine the issue. In December 2000 the committee reported that the existing mechanisms for addressing concerns regarding judicial misconduct were inadequate. Ultimately, for various reasons, the recommendations were not acted upon until the recent publication of the scheme of the Judicial Council Bill, following consultation with the chief justice.
Judicial Conduct Committee
The scheme's principal recommendation is the creation of the Judicial Conduct Committee which will be responsible for the consideration and investigation of judicial misconduct. It is proposed that the committee be comprised of eight judges and three lay persons. The committee will be responsible for:
The general scheme of the bill envisages that those directly affected by the alleged judicial misconduct or those who witnessed it may make a complaint. However, representative bodies such as the Law Society or the Bar Council may also make a complaint. Any complaint must be made within six months of the date of the alleged misconduct. However, any such complaints will not be admissible if they relate to the merits of a decision or if they relate to proceedings where a remedy is otherwise available by way of appeal, judicial review or other proceedings. The proposed bill also envisages that the committee may, on its own initiative, determine whether an investigation should be undertaken.
The scheme defines 'breach of judicial conduct' as:
"misconduct by a judge whether in the execution of his or her office or otherwise, and whether generally or on a particular occasion, which constitutes a departure from acknowledged standards of judicial conduct and brings the administration of justice into disrepute and for this purpose 'misconduct' includes any act or omission."
As currently conceived, investigations as to judicial misconduct will be confidential and will be conducted in private. Moreover, the scheme states that the Freedom of Information Acts and the Data Protection Acts do not apply to any document or data received, retained or used by the committee, panel of inquiry committee-appointed or investigating judge.
In the event that an investigation determines that there has been judicial misconduct, the disciplinary process can recommend one of a range of penalties, depending on the nature of the breach. For example, advice or a reprimand may be issued to the judge concerned, or it may be recommended that the judge follow a specific course of action, such as attending a specified course of training or education. Presumably, for more serious instances of misconduct, a recommendation may be issued to the relevant president of the court, or a recommendation issued for procedural or organisational change. If there are doubts as to a judge's capacity to act due to his or her physical or mental condition, the judge's capacity may be investigated and the minister for justice can request the relevant judge to undergo relevant medical examinations.
The scheme also envisages the establishment of a Judicial Council, which will consist of all serving members of the judiciary. The council is to be independent in its functions and will promote:
It is proposed that an overseeing board of nine members, comprising representatives of each court (ie, the Supreme Court, the High Court, the Circuit Court and the District Court), will support and manage the policy of the council under the overall authority of the council. The board shall, among other things:
Judicial Studies Institute
The proposed bill also provides for the establishment of a Judicial Studies Institute, which will be responsible for facilitating the continuing education of judges. Among other things, the institute will be responsible for:
The institute is to be established as a committee of the council and its membership is to be determined as appropriate, although it need not be composed of members of the council. This puts the institute on a statutory footing; the existing manifestation of the institute was developed to assist in meeting the needs of judges in training or education pursuant to Section 19 of the Courts and Court Officers Act 1995.
Broadly speaking, the regime envisaged by the general scheme for the bill has been well received, with the chief justice commenting favourably on behalf of the judiciary. The Law Society has also responded positively. While the specifics of much of the scheme remain to be fleshed out, it is clear that the establishment of the Judicial Conduct Committee will represent a significant change in the way that judicial misconduct is reviewed. In that context, once in force, the legislation will facilitate increased openness and accountability for the judiciary. However, if the parameters of the enacted regime reflect those outlined in the scheme, given the high judicial standards which already prevail, instances of misconduct are likely to be infrequent.
For further information please contact Gearoid Carey at Matheson Ormsby Prentice by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (email@example.com).
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