Judicial misconduct complaints procedure needs to be ‘more transparent’

Authors of ICCL report welcome progress on issues but suggest Act requires further work

A new judicial misconduct complaints procedure due to come into operation later this year needs to be “more transparent”, the Irish Council for Civil Liberties has said.

There is a risk that an informal procedure under which some complaints may be dealt with would leave the relevant complainants “without transparency” and judges “under the shadow of a seeming cover-up”, the group said.

Its recommendations include that the names of judges who consent to a reprimand are published in the annual reports of the Judicial Council and that guidance is provided by the Judicial Conduct Committee as to what will be considered as misconduct.

The Oireachtas should also prepare a process for what to do when there is a recommendation for a judge's removal for misconduct, according to the civil liberties watchdog.

The report, just published, analysed the implementation of the long-awaited Judicial Council Act 2019 which required, among other things, the preparation and introduction of a judicial misconduct complaints process and of a formal judicial training regime.

Doireann Ansbro, head of Legal and Policy at ICCL, welcomed the advances brought in by the Act, with the procedure for making and dealing with complaints of misconduct against judges to be operable by June 28th next.

The judiciary unanimously adopted the procedure and accompanying guidelines on judicial conduct and ethics at a meeting last month.

Under the procedure, a complaint will be first dealt with by the council’s registrar, who decides if the matter complained of could constitute misconduct. If so, the complaint is then reviewed by a committee of the council which may refer it for resolution by informal means or to a panel inquiry which can investigate and conduct hearings.

Reprimand

The panel reports to the Judicial Conduct Committee which can make determinations including a reprimand, a course of action such as training, or an admonishment.

It can also refer the complaint to the Minister for Justice so that the Oireachtas can consider a motion for removal of the judge.

Ms Ansbro warned: “We need to be cautious that the practices which come in as a result are in line with international best practice. We would be concerned that the complaints process should be more transparent and provide real clarity for both the judiciary and complainants.”

The concerns outlined in the ICCL report about the procedure include that the informal resolution process is “procedurally vague”. It stresses the need for “clarity” on misconduct and the resulting sanctions and voices concerns of a risk that informal procedures would leave complainants without transparency and judges “under the shadow of a seeming cover-up”.

Dr Laura Cahillane, of the University of Limerick and a co-author of the report, said an opportunity to provide guidelines for the Oireachtas in dealing with a referral of alleged misconduct was missed when the Act was being prepared "but it can and should still be done now".

The ICCL report also notes Ireland has the lowest number of judges in the EU and says government underfunding of the judiciary is hampering access to justice here.

It also found the State does not provide sufficient resources for the education and training courses necessary for judges here to keep up with changes in the law, in Irish society, or best practice in ‘judgecraft’ internationally.

Dr Rónán Kennedy, of NUI Galway, another co-author of the report, said training of judges must be fully resourced. "If Ireland is to have a world-class judicial system, we must properly resource and embed training for our judiciary."

The report is published by the ICCL , the University of Limerick and NUI Galway, with funding from the Irish Research Council.