The Irish Council for Civil Liberties (ICCL) has given only a "cautious welcome" to the announcement by the Minister for Justice that a Judicial Council and a Judicial Conduct Committee are to be set up. The council will promote "high standards among judges" and allow for "continued public confidence in judicial integrity".
There will be new guidelines for judicial ethics and conduct. Procedures will be created to investigate complaints against judges. There will be provision for carrying out investigations into the mental or physical health of judges, and sanctions will be introduced -- including a reprimand, or a recommendation that the judge follow a specific course of action.
So what's to be cautious about? It sounds like considerable progress, even for organisations like the Irish Council for Civil Liberties, programmed and required to be chronically sceptical and suspicious. It may have to do with a certain amount of chagrin. The ICCL published its own report, Justice Matters, in 2003 under the direction of Dr Tanya Ward, its Senior Research and Policy Officer, and the report, carried out in conjunction with the legal profession, called for the setting up of just such a Judicial Council.
But the ICCL was coat-trailing. As far back as 2001, the legal profession itself, in a report prepared by the then Chief Justice, Mr Ronan Keane, had called for a proper complaints procedure to be established for litigants; and it went by the board because there was a failure to gain all-party agreement in the Oireachtas as to how procedures could be put in place for the ultimate sanction: the removal of a judge from office.
So the legal profession was prepared to bite the bullet: it was the politicians who were running scared. And when the minister published the scheme of the new bill during the week, the Director General of the Law Society, Ken Murphy, said that measures to review allegations of judicial misconduct were "long overdue". Judges were human, and occasionally their conduct was not what it should be, he pointed out. If a judge got a decision wrong in law, he added, there was always the appeal court; there's currently no forum for appeal if a judge's conduct is called into question.
As things stand, it is the politicians who must take responsibility for the removal of judges: the only means is by a vote for impeachment by a straight majority in both houses of the Oireachtas. And since a former taoiseach was quoted in Dr Ward's ICCL report as admitting that "all other things being equal" the political affiliations of "a person nominated for judicial office will be taken into account" ... even though there are "no promises of judgeships for party service", effectively, in impeaching a judge, the politicians of the government party(ies) will be dismissing one of their own nominees. In any case, the new committee will not deal with complaints serious enough to have a judge removed from office.
In modern times (and possibly since the setting up of the State), we have lost only three judges in what could be termed controversial circumstances, although some may have resigned for health or other private reasons.
In 1999, Supreme Court Judge Hugh O'Flaherty and then recently appointed High Court Judge Cyril Kelly both resigned in a scandal over the court case known as the "Sheedy affair". Judge O'Flaherty asked the Court Registrar about the speeding up of the listing of the appeal for a man sentenced a year previously to four years in prison for causing death while driving in a drunken state. The appeal was listed shortly afterwards before Judge Kelly, who then sat in the Criminal Court. He suspended three years of Sheedy's sentence.
The legal profession was in turmoil; an inquiry was instigated by the Chief Justice, Mr Liam Hamilton, who issued a report in damning terms. Judge O'Flaherty, while acting "from humanitarian motives", had been "inappropriate and unwise". Judge Kelly's conduct was "ill-befitting a judge", and "compromised the administration of justice". The outcome was the reluctant resignation of both men, forced by the strength of legal opinion against them ... their own colleagues, not the politicians.
The other resignation was that of Circuit Court Judge Brian Curtin, charged in 2004 with possession of images on his computer of child pornography. The case against Curtin was dismissed when the arrest warrant was discovered to have been out of date. Curtin refused doggedly to resign, and it was known that his colleagues were lobbying strongly for his impeachment. But a vote for this (under Article 35.4.1 of the Constitution which says a judge can be "removed for stated misbehaviour or incapacity") never got to the Dail, when the force of legal opinion finally prevailed, and Curtin resigned in 2006 "on health grounds". (It would seem that the former judge is still unrepentant, since he has recently lodged a claim for nearly €2m against the houses of the Oireachtas for costs incurred while he battled against their right to impeach him.)
There are other cases, possibly less obvious, where the legal profession is prepared to police itself very closely, and not always in line with public opinion. High Court judge Paul Carney has apologised to victims of truly dreadful crimes of violence for the sentences he is imposing because, he says, if he imposes the life sentence that is technically permitted, it is his experience that it will be overturned on appeal. Just over a year ago, indeed, his imposition of a life sentence on a man who had repeatedly anally raped two little boys, and had already served two shorter sentences for homosexual rape, was reduced on appeal, the grounds offered in the Appeal Court being that although he was a continuing danger to society, he had pleaded guilty.
The public may well feel that the Complaints Committee would have a function in such cases, not against Mr Justice Paul Carney, but against the three judges sitting in the Appeal Court. But the learned judges at least are determined to uphold the most finely tuned tenets of law: it's not their fault if the law is at fault. (It's also not the fault of Judge Carney.)
As the minister plans the Complaints Committee it will have three lay members and eight members of the judiciary. The ICCL is bothered by that, because the lay members will be appointed by the Government, and be outnumbered by judges. More "robust appointment and operating procedures" will be required, they say.
Personally speaking, I'd say that the legal profession has shown consistent willingness to police itself and to investigate and condemn improper behaviour by judges. And even judges are entitled to have complaints against them judged on the basis of law as well as natural justice.