Judicial council legislation sets stage for personal injuries guidelines

Legislation to create a judicial council has finally passed through the Dáil, following 20 years of tribulations, writes Colm Keena.

So what is the judicial council?

It’s a council that is to be made up of all our judges, from the Chief Justice to the latest person to be appointed as a District Court judge, and its job will be to promote a range of issues including standards of conduct, education for the judiciary, sentencing guidelines, public confidence in the judiciary, and other matters. It will have a board which will carry out many of the council’s functions, and a staff.

So it’s not just part of the Government’s plan for reducing insurance costs?

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Not at all. It started out, many years ago, mainly as a plan for disciplining judges guilty of misconduct. As matters stand the only way of disciplining a judge is for the Oireachtas to impeach him or her.

The council, once established, will set up a judicial conduct committee which will comprise eight judges and five “lay” people appointed by the Government (and selected by the Public Appointments Service).

The committee will oversee a new disciplinary system that will allow for complaints to be considered and for judges who are found guilty of misconduct that falls short of deserving impeachment, to be reprimanded.

Will judges be publicly reprimanded?

The Minister for Justice and Equality, Charlie Flanagan, in the Dáil on Thursday, explained that the council will publish each reprimand, including the judge's name, in its annual reports "unless there is good reason to do otherwise".

The hearings of panels of inquiry that will be established to investigate complaints “shall be conducted in public unless the judicial conduct committee directs that in order to safeguard the administration of justice the hearing should be conducted in whole or in part otherwise than in public.”

A number of judges who spoke to The Irish Times said they and their colleagues were worried that vexatious complaints might be made against them, including by some lay litigants who might be anxious to exploit the system, though they took comfort from the fact that the audio recordings that are made of all court hearings should weed out most such cases. Most judges accepted, they said, that there had to be some sort of disciplinary system.

So that’s got nothing to do with insurance?

No. Rising insurance premiums have prompted the Government to include in the Judicial Council Bill a stipulation that the council will hold its first meeting within three months of the Bill becoming law, and set a date at that meeting for the establishment of a personal injuries guidelines committee (PIGC).

On Thursday, Fianna Fáil’s Jim O’Callaghan said that as then drafted, the Bill could see it taking up to three years for the guidelines to be produced.

He successfully argued that the PIGC should be established within three months of the council first sitting (as against the six months originally proposed), but the Minister did not accept his proposal that the draft guidelines be produced by the PIGC within six months of it being established. The PIGC will have a year to produce its first draft for the council.

So what does all that mean?

On the face of it, if O’Callaghan is correct, it could be 2½ years or more before the personal injuries guidelines are produced. Remember the Judicial Council Bill still has to get through the Seanad, though it has broad party support and should be ready to become law shortly.

What about sentencing?

This aspect of the proposed council’s duties is a Sinn Féin product. According to Donnchadh O’Laoghaire of Sinn Féin, the Government is relying on its support for the Judicial Appointments Bill, and accepted its proposals for a sentencing committee as part of the Judicial Council Bill, in that context.

The Court of Appeal has set out guidelines for a number of criminal offences, says O’Laoghaire, but there are still large areas where there are no guidelines. In the District Courts there is “wild variation” in the sentences being imposed by different judges. Bad sentencing decisions affect the public’s faith in the system and “public confidence is vitally important”.

He wants to see the council producing data on sentencing for judges, as well as guidelines akin to those of the sentencing council for England and Wales, where the range of suggested sentences set out in their guidelines for a large number of crimes are largely adhered to by the courts.

Under the proposed council law, a judge, when imposing a sentence, must have regard to the relevant guidelines unless satisfied that “to do so would be contrary to the interests of justice”.

Mr Justice John Edwards of the Court of Appeal, in a paper on sentencing published earlier this year in the Irish Judicial Studies Journal, said that his court might be producing more guidelines for sentences, if they weren't so short of judges.

The proposed judicial council adds to the judiciary’s workload, it might be noted. On the other hand, a Bill to increase the number of judges in the Court of Appeal by six is close to becoming law.

Senator Ivana Bacik, of the Labour Party, said it would be a mistake to try to "bind" judges in their sentencing decisions and that what is being proposed in the Judicial Council Bill is a "middle way that is in line with many proposals that have been made in the past".

Privately judges are very aware that sentences that appear to be out of line with public sentiment, especially in cases of physical and sexual assault, can damage public confidence.

So the judicial council will be a good thing?

Eoin O'Dell, associate professor in the Law School in Trinity College Dublin, said the Bill was clever and a long time in the making. It had a capacity to reduce personal injuries awards, and provide for greater consistency in sentencing. It also, in providing a means for reprimanding judges guilty of misconduct, would finally put in place a structure that had been on the political agenda since the resignation of the Supreme Court judge Hugh O'Flaherty in April 1999, as part of what was known as the Sheedy affair.