The Judicial Council Act 2019 in general terms, applies to judicial misconduct alleged to have occurred after its commencement. There a Judicial Conduct Committee which is independent in the performance of its function to promote and maintain high standards of judicial conduct. The Committee has a central role in considering complaints against judges and referring them either for resolution by informal means, or for formal investigation. It will also be responsible for drafting guidelines concerning judicial conduct and ethics.
The Judicial Conduct Committee which consists of eight judges and five lay members.
The Public Appointments Service recommends persons who are suitable to be appointed as lay members of the Judicial Conduct Committee. The duration of the term of membership of the Judicial Conduct Committee, in the case of elected judges and lay members, is four years, renewable once.
The Judicial Conduct Committee, has a quorum for a meeting (five members of whom not fewer than three shall be judges and not fewer than two shall be lay members) and the chairing and voting arrangements.
Registrar to Judicial Conduct Committee
There is a e Secretary, or another member of staff who is designated yo perform the functions of the Secretary, to act as Registrar to the Judicial Conduct Committee.
A complaint may be made by any person who is directly affected by, or who witnessed, alleged misconduct. There is a time limit of three months within which a complaint may be made to the Registrar concerning the conduct of a judge which is alleged to constitute judicial misconduct. Provision is made for the time limit to be extended in appropriate circumstances.
The Judicial Conduct Committee may specify procedures relating to the making and investigation of complaints, the making of determinations by it regarding complaints and the publication of its procedures.
A complaint must be made by the appropriate person and it must not be frivolous or vexatious. It must also be the case that the conduct alleged could, if substantiated, constitute judicial misconduct by the judge concerned. Complaints relating to the merits of a decision in proceedings before a judge are not admissible. Where a complaint is admissible it is referred to the Judicial Conduct Committee.
There is provision for r notification of the judge and of the complainant where a complaint is determined to be admissible or inadmissible. The Complaints Review Committee is to review determinations that complaints are inadmissible. The Committee comprises three members (two judges and one lay member) appointed by the Judicial Conduct Committee, all of whom will be members of that Committee.
There is a procedure where a review is undertaken by the Complaints Review Committee of a determination that a complaint is inadmissible. A complainant has thirty days from the date of receiving the initial notification of that determination within which to seek a review.
There are procedures where a complaint which is being considered by the Registrar, or by the Complaints Review Committee, is withdrawn. In such circumstances it may be that no further action is taken. It is also possible to refer the matter to the Judicial Conduct Committee for a decision as to whether or not to initiate an investigation in relation to the matter.
There are procedures if the judge who is the subject of the complaint consents to the issuing of a reprimand to him or her by the Judicial Conduct Committee before the complaint concerned is investigated. A reprimand in these circumstances may provide for the issuing of advice to the judge concerned, for the making of a recommendation that the judge concerned pursue a specified course of action, including attending a course or training of a specified type, and for the issuing of an admonishment to the judge concerned.
An investigation into judicial misconduct may take place in the absence of a complaint, or where the complaint concerned is withdrawn, provided that the conditions set out are satisfied.
The Judicial Conduct Committee may refer a complaint for resolution by informal means or for investigation by a panel of inquiry. The resolution of a complaint by informal means shall be undertaken by a designated judge or designated judges.
There is a report to the Judicial Conduct Committee from designated judge or designated judges both where the complaint is deemed not suitable for resolution by informal means (in which case it is referred to a panel of inquiry), and where the complaint has been resolved by informal means. A report is also to be made where the complaint was not so resolved.
Investigation of complaints
The Judicial Conduct Committee may appoint a panel of inquiry to investigate a complaint. Certain information is to be provided to the judge and to the complainant consequent upon that appointment.
The Public Appointments Service recommends persons who are suitable to be appointed as lay members of panels of inquiry. There are procedures for nominating lay members for appointment to panels of inquiry and the eligibility criteria for lay membership of such panels. It also provides for the Government to nominate not fewer than seven persons and not more than twelve persons to be lay members of panels of inquiry.
The Judicial Conduct Committee is to appoint three persons to be members of a panel of inquiry (two judges and one lay member). They have powers to conduct an inquiry including matters such as the obtaining of documents, the holding of hearings, etc.
The powers, rights and privileges of a panel of inquiry in relation to the examination of witnesses, compelling the production of records and the giving of evidence are set out. A person who does not cooperate with a panel of inquiry is guilty of an offence.
In the case of a refusal or failure on the part of a complainant to cooperate with a panel of inquiry, the Judicial Conduct Committee may direct that the investigation be discontinued, but it may also direct that it be proceeded with.
If the judge concerned does not cooperate with a panel of inquiry, there is the possibility that a reprimand may be issued to the judge concerned in respect of the refusal to cooperate. The possibility to make such other recommendations as are specified in the section is also provided for.
Matter before panel of inquiry concerning health of judge
If the conduct which is the subject of the complaint under investigation is related to the health of the judge concerned, the judge concerned may take remedial measures. It also allows for a recommendation to issue to the judge about the need to seek medical assistance.
If judge concerned consents to reprimand by Judicial Conduct Committee before conclusion of investigation
Section 73 concerns the consequences if the judge concerned consents to the issuing of a reprimand to him or her by the Judicial Conduct Committee before or during the investigation of a complaint by a panel of inquiry. In such circumstances the investigation may be adjourned and a report in relation to the complaint submitted to the Judicial Conduct Committee.
Where the complaint which is being investigated by a panel of inquiry is withdrawn, it may be that no further action will be taken, or that the investigation continues.
A panel of inquiry has the power to adjourn an investigation of a complaint if it appears to it appropriate to do so.
On completion of an investigation of a complaint by a panel of inquiry, it makes its written report to the Judicial Conduct Committee setting out its findings. It specifies the content of the report and the nature of recommendations which may be made. For example, a recommendation may be to the effect that the judge concerned pursue a specified course of action, including attending a course or training of a specified type, or it may involve the issuing of an admonishment to the judge concerned.
Any draft report of a panel of inquiry shall be sent to the complainant and the judge concerned prior to its submission to the Judicial Conduct Committee. There is provision for the making of submissions or requests to the panel of inquiry in relation to the non-observance of fair procedures.
The complainant or the judge concerned may submits a statement in writing requesting a panel of inquiry to review a draft report in the circumstances set out , the panel may amend the draft report to take account of the statement received, or decline to make any amendments to the draft report.
There is a procedure to be followed by the Judicial Conduct Committee on foot of the receipt by it of a report from a panel of inquiry. It allows for submissions to be made by the complainant or judge to the Committee in relation to the recommendations that are included in the report of the panel of inquiry.
Where necessary the Committee may hold a hearing in relation to the complaint which has been investigated by a panel of inquiry to assist it in arriving at a determination regarding the complaint. In this regard the Committee may accept, with or without modification, any recommendation contained in the report submitted by a panel of inquiry. It may also reject a recommendation. Where the Committee requires the judge concerned to take any action, for instance to attend a course or training, the Committee may require the judge concerned to report to it regarding his or her compliance with the requirement.
There are procedures to be followed in the event that a matter relating to the conduct or capacity of a judge requires the referral of the matter to the Minister for Justice and Equality for the proposal by the Minister of an Article 35.4.1° motion in respect of the judge concerned.
Evidence given to the Judicial Conduct Committee or a panel of inquiry is not admissible in criminal or other proceedings except in certain limited circumstances.
All proceedings relating to the investigation of complaints and related court proceedings shall be conducted otherwise than in public. There is provision concerning the disclosing of evidence.
The Judicial Conduct Committee is to provide an annual report to the Minister for Justice and Equality of its activities, which the Minister shall cause to be laid before each House of the Oireachtas. It also specifies some of the statistical data which are to be contained in that report.
There is provision for legal costs reasonably incurred by a judge where a complaint has been made and where the determination of the Judicial Conduct Committee is to the effect that the complaint has not been substantiated.
The application of the Freedom of Information Act 2014 is restricted in relation to certain records – essentially records held by the Judicial Conduct Committee, the Registrar, etc., in the context of investigating a complaint. Similarly the GDPR rights are restricted in relation to the investigation of complaint