First formal judicial misconduct complaints procedure expected to be in operation within weeks

The first formal judicial misconduct complaints procedure here is expected to be in operation within weeks, according to the Department of Justice.

The procedure will provide for a range of sanctions, including the removal of a judge from office.

Chief Justice Donal O’Donnell, in his foreword to the recently published Judicial Council report for 2021, described the provision of a fit for purpose judicial conduct regime here as “a welcome development”.

The report outlines steps taken by judges, as required under the Judicial Council Act 2019, for introduction of the judicial conduct and complaints regime, including the adoption of new ethics and conduct guidelines for judges.

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In enabling commencement of the complaints function, the council’s staff has been increased from two to four and an IT system put in place.

The report notes the relevant law has to be commenced by the Minister for Justice before the complaints regime can come into effect.

In response to queries from The Irish Times, a spokesman for the Department of Justice noted the council had adopted guidelines on judicial conduct and ethics on February 4th last.

“Once the necessary structures have been put in place to facilitate the new process, the Minister for Justice will make an order bringing into operation those relevant provisions of the Judicial Council Act which have not yet been commenced,” he said.

“While a date has not yet been set, it’s envisaged that this order will be made in the coming weeks.”

Because the new complaints regime is not retrospective, it cannot deal with allegations against judges made prior to its coming into effect.

The absence of a formal complaints regime was highlighted during the “Golfgate” controversy that erupted in August 2020 following the attendance of then newly appointed Supreme Court judge, Mr Justice Séamus Woulfe, at an Oireachtas golf society dinner during the Covid-19 pandemic.

Former chief justice Susan Denham, asked by the Supreme Court to prepare a report on the matter, said her opinion was that Mr Justice Woulfe should not have attended the dinner but it was not a resigning matter.

After her report and transcripts of interviews between Ms Denham and Mr Justice Woulfe were published, there was further controversy that ultimately led to then chief justice Frank Clarke expressing a personal view that Mr Justice Woulfe should resign. The latter declined to do so.

The Judicial Council Act 2019 required judges to prepare and adopt new conduct and ethics guidelines to promote the highest standards of judicial behaviour and form the framework for the complaints procedure.

The guidelines were prepared by the Judicial Conduct Committee (JCC), comprising the Chief Justice, presidents of the other four court divisions, three judges elected by the judiciary and five lay members.

The Act defines judicial misconduct as conduct, whether an act or omission, by a judge amounting to a departure from acknowledged standards of judicial conduct, bringing the administration of justice into disrepute.

The first stage of the complaints procedure involves the council’s secretary, Kevin O’Neill, deciding if a complaint is admissible. A complainant can seek an internal review if it is deemed inadmissible.

Complaints that are upheld may be addressed in various ways, including by advice, training, admonishment, or a combination of those. They may also be addressed via an informal resolution process subject to the complainant consenting to that.

The JCC may seek to hear from a complainant and judge before it finally decides a complaint. Such hearings will normally be in public unless the JCC decides a private hearing is required.

Even if there is no complaint, the JCC can decide a matter relating to judicial misconduct or capacity is so serious it must be referred to the Minister for Justice under the Government’s constitutional power to remove a judge from office.

Workshops and courses concerning ethics and conduct continue to be provided for judges under a formal training regime in place since 2020.