Disciplinary Proceedings into alleged judicial misconduct may be heard in public

April 30, 2019

Disciplinary proceedings into alleged judicial misconduct may be heard in public under new Government amendments to the Judicial Council Bill 2017 (the “Bill”).

Judicial Council Bill

The purpose of the Bill is to establish a Judicial Council which will be independent in the performance of its functions and will promote and maintain excellence and high standards of conduct by judges. It will also establish a Judicial Conduct Committee (the “Committee”) which will investigate allegations of judicial misconduct which fall below the level necessary to trigger impeachment. The Committee will have lay representation. The Committee will consider complaints against judges and will refer them either for informal resolution or for a formal investigation.

Initially, the Bill proposed that such inquiries into judges’ misconduct be held in private unless a public inquiry was needed to “safeguard the administration of justice”.

However, the latest amendments to the Bill have inverted this position and will allow for such inquiries to be held in public unless a private hearing is needed to “safeguard the administration of justice”.

Judicial Reaction

When asked about the new proposals, The Chief Justice, Mr Justice Clarke stated that legislation providing for a complete ban on any publicity about anything is probably untenable.

The Chief Justice said the judiciary had written to the Minister saying they were not suggesting that the previous position had to be maintained but that “some care” had to be exercised to prevent it becoming difficult for judges to sit on cases.

Justice Clarke continued, “if judges are taken off the pitch, it could have problems for the practical administration of justice, so we are suggesting further discussions on the precise basis on which it should be public and private”.

Speaking in 2018, Justice Clarke added that there was room for a debate on precisely at what point in the disciplinary process that publicity becomes permissible, and care needed to be exercised in this regard.

The judiciary, he pointed out, are different from those in other professions because they make adverse decisions against people. He warned it would be “very dangerous” if the mere fact of a complaint which might be frivolous or vexatious could gain publicity.

Providing for a public inquiry by default with specific provisions for privacy would bring the Judicial Council in line with other major regulators of the professions.

Status of Bill

The Bill is currently awaiting committee stage in Seanad Éireann, but Justice Minister, Mr Charlie Flanagan recently indicated that he envisaged that committee stage “will be taken before the end of the current session and the objective is to secure enactment of the Bill during the course of this year”.

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