No Judge is Above the Law???

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Courts Service cannot investigate 41 complaints against judges received in the last three years

 19th December 2021


THERE HAVE BEEN 41 complaints against judges in the last three years but no action will be taken as judges cannot be investigated, the Courts Service has admitted. 

Documents obtained by The Journal have shown, predictably that Dublin has the most complaints with nine over the period of 2019, 2020 and until 4 November, 2021. 

The county-by-county breakdown shows that the most complaints received by the Customer Comments Co-ordination Unit are marked as from “unknown” locations. 

In 2019 there were 16 complaints, in 2020 there were nine and so far this year there were 16 complaints.

The Journal, in a Freedom of Information Act application, had requested details on the nature of the individual complaints, however the Courts Service had refused this citing privacy concerns. 

The information issued to this website by the Courts Service are also incomplete as complaints registered locally were not included – only complaints registered by complainants online were recorded as part of the overall stats for the period covered. 

When asked how the complaints were dealt with the Courts Service said that nothing would be done with the complaints as judges cannot be disciplined. 

In their response an information officer for the service explained: “Under the Constitution, judges are independent in the exercise of their judicial functions.

“The conduct of a court case or decision made is a matter entirely for the judge and it is not open to the Courts Service to comment or intervene in any way in such matters.

“Any decision, finding, judgement or ruling of the courts can only be addressed through the courts.

“Quasi-judicial decisions made by officers of the court can only be appealed to the court. These would include decisions of County Registrars including their role as Under-Sheriffs, the Master of the High Court, the Legal Cost Adjudicators and other officers of the High Court exercising quasi-judicial functions. These officers are independent in the exercise of their quasi-judicial functions.

“Complaints about legal professionals or other bodies must be addressed to the appropriate organisation.© Laura Hutton

Independent

The information officer said that the nature and detail of each complaint was not released as the Courts Service is not in a position to examine the complaints.

“Please be advised that the Courts Service is responsible for the management and administration of the Courts. The Service is not involved in the administration of justice which is a matter for the courts and the judiciary, who are, subject only to the Constitution and the law, independent in the exercise of their judicial functions.

“The conduct of and decisions made in any court case is a matter entirely for the presiding judge and it is not open to the Courts Service to comment or intervene in any such matters.

“Therefore, as the Service is not in a position to investigate or resolve complaints made against members of the judiciary, the type or nature of a complaint made against a judge is not tracked by the Customer Comments Coordination Unit,” the officer added. 

A judicial source said that the Judicial Conduct Committee had been something campaigned for by judges for a number of decades. 

“The judiciary have been campaigning for this for more than 20 years. There are a small number of complaints but the solution is in sight with the Judicial Council which will come into effect next summer.

“Most complaints received regarding judges are about people who are not happy with how the judge ruled on their case – and that is not about misconduct.

“There is accountability for when judges get it wrong and it is the appeals system – that is the ultimate complaints mechanism and it is done in public,” the source explained.

The Judicial Council Act 2019 established the body and it deals directly with a number of areas around the work of the Irish judiciary. The Council’s membership is made up of the country’s judges.

The Judicial Conduct Committee will be made up of 13 people which includes members who are described in legislation as being from a “lay” background. 

The Department of Justice refused to comment on complaints made to the Courts Service and also cited judicial independence.  It said that conduct of judges was for the Judicial Council to consider. 

“One of the main pillars of the Judicial Council’s remit is to promote high standards of conduct and the Judicial Conduct Committee was formally established with effect from 30 June 2020. 

“It was required under the Act to submit to the Judicial Council Board draft guidelines concerning judicial conduct and ethics, within 12 months of its establishment.

“The guidelines will deal with admissibility of judicial complaints, informal resolution of complaints and codes for conduct and ethics,” a Department spokesperson said. 

The Justice spokesman said that the committee was yet to deal with complaints – a year after its formation – it is unlikely to deal with any complaints until next summer. 

“The Department understands that the Committee submitted those draft guidelines to the Board on 28 June 2021, within the statutory timeframe.

“The Act further states that the Council must then adopt those guidelines within a further 12 month period from that date (i.e. by 28 June 2022 at the latest).

“Once the guidelines are in place, the Minister will then make orders bringing into operation those relevant provisions of the Act which have not yet been commenced.

“Panels of Inquiry (including lay membership) will be able to conduct investigations of any complaints referred by the Judicial Conduct Committee,” he added. 

Judicial misconduct

Deputy Jim O’Callaghan, who is Fianna Fáil spokesperson on Justice has called for action to bring the watchdog into operation.  

“It is important Judicial Conduct Committee gets up and running as soon as possible.

“People who wish to make a complaint about judicial misconduct, must have a clear and defined method of doing so.

“Although there are a small number of complaints, these complaints need to be taken seriously and determined in order to ensure the protection of the administration of justice,” he said.

At present, under the Constitution, only the Oireachtas can discipline a judge, however that process of examining a judge’s conduct only allows removal for “stated misbehaviour”.Dublin's Criminal Courts of Justice complex.© Alamy Stock Photo Dublin’s Criminal Courts of Justice complex.

The 2021 European Commission Rule of Law report was critical of the complaints process and also raised concerns around the political nature of judicial governance. 

“Work is ongoing on establishing a disciplinary regime for judges, while Parliament remains in charge of removing judges,” the report said. 

“The Judicial Conduct Committee of the Judicial Council, which was established in 2020 to consider complaints in relation to judicial misconduct, is drafting the Judicial Conduct Guidelines, the procedures for informal resolution of complaints and on admissibility and operation of the complaints regime.

“Despite the progress in this regard, the current lack of formal disciplinary procedures for judges was raised as concern, including by civil society.

“Therefore, the forthcoming guidelines and procedures could lead to improve the accountability of judges; it is important that they preserve judicial independence in line with EU law and taking into account Council of Europe recommendations.

“Parliament remains in charge of deciding on the removal from office of judges and retains its margin of discretion in that regard, which could raise concerns about the politicisation of the process, even if this process has never been engaged,” the report said. 

An interview request with a spokesperson for the Judicial Council has not been responded to. The membership of the body are all sitting judges. 

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