By David Gwynn Morgan, Professor of Law, University College Cork

Recently, the President of the High Court (Kearns P) announced that the long-awaited judicial council for standards and conduct might be set up this year (Irish Times, April 12). Surprisingly, the present system is still the one which grew up in reaction to the absolute monarchs of the Seventeenth Century. In those times, judges held office at “the will and pleasure of the King”. Thus, if the King attempted to take away what we would call the human rights of a citizen and the judges leapt to their defence, the King’s reaction was to dismiss the judges.

So, when Parliament got the upper hand, its reaction was to establish the judges’ independence. They did this in the way which seemed best at the time, namely by providing, in 1688, that judges held office ‘during good behaviour’ and could be removed only by a resolution of both Houses of Parliament.

This arrangement was brought over, unchanged, into the modern Irish Constitution. This was unfortunate. For, by now, Parliaments are subject to the party whip and, as President Ford of the USA put it, reflecting on the somewhat similar situation of the impeachment of President Nixon by Congress: ‘You don’t need evidence: you only need a majority.’

The lame ducks thus released came home to roost in the Sheedy episode in 1999. Philip Sheedy who had been sentenced to four years for causing death by reckless driving was released early, in circumstances which mounted to improper conduct by two judges and a registrar.

Hanging over everything was the fact that, although, in this instance, the opposition parties supported the Government, it was accepted that the Oireachtas was not the appropriate forum because the danger of political interference with the judges – or the appearance of this – was plain for all to see. In the end, the three persons involved were given some additional years on their pension and resigned.

To go back to the fundamental point of judicial independence: it was accepted by politicians that a new system for disciplining judges could not be introduced without the effective consent of the judges. By the early 2000s, a Bill, which had been approved by a consensus among judges, had reached a fairly advanced stage of consultation.

The proposed Bill was, sensibly, based on the following features. First, the most important would be a gradation of sanctions to deal with offences of varying levels of seriousness. Thus, sanctions would start with a private reprimand by the Chief Justice and then move up through public reprimand to dismissal. Secondly, both lay persons, as well as judicial colleagues, would have been involved in adjudicating on allegations of misconduct. Next, there would have to be some indication of what constitutes judicial misconduct: if, for instance, a judge is impatient or sarcastic with a party who is economical with the truth, or a long-winded Counsel, that is not a ground for discipline. Finally, there would obviously have to be fair procedure for the accused judge, including a sieve for weeding out insubstantial cases at an early stage. This last is especially important, given that there are plenty of disgruntled litigants out there.

Then, in 2004, another episode occurred, when a Circuit Court judge (who has consistently denied the offence) was accused of downloading child pornography.  Attempts to remove the judge were hampered by court proceedings; and also by the fear that an election would be called before the dismissal proceedings had been completed.

In short, these two episodes show that here is an accident waiting to happen. No one can say that we have not been warned: nor that, over the past ten or so years, other satisfactory models for dealing with judicial misconduct have not been developed in similar, common law, countries, such as Australia and Canada, whose experience would be useful to us. Even in Britain, the strange contraption of the Lord Chancellor has been relegated to the attic of history. Yet, in Ireland, what followed Sheedy and Curtin was a long silence.

Unfortunately, there was a qualification in the speech made by the President of the High Court, namely that, before the new scheme becomes operational, “… it will require the provision of suitable digital audio recording facilities in all courts so that complaints can be referenced to an accurate record …” (my italics). Given the parlous state of the public finances, this may not occur for many a long year. (One thinks, by analogy, of the way in which arrangements to record the taking of the statements of suspects in Garda Stations was delayed for more than ten years, simply because sufficient Garda Stations were not equipped with the necessary technology.) One can, of course, see the need for an accurate record; but there seems no reason for a complete ban until all courts (at every level, in every locality?) have been thus equipped. Surely at least the new scheme could proceed on a court by court basis?