Extra-judicial comment by judges

• Author: Ronan Kennedy
• Position: B.Comm., Dip. Sys. Anal., LL.B., B.L.; Candidate for the LL.M. in General Studies at New York University School of Law
• Pages: 199-212

EXTRA-JUDICIAL COMMENT BY JUDGES

RONAN KENNEDY*

I. INTRODUCTION

The issue of what judges may say (or write) when they are

not on the bench is an important one, but one that is rarely

considered in Ireland. This is probably for a number of reasons.

Firstly, there are no rules governing such conduct, which makes it

difficult to begin dealing with it. Also, the lack of judgments and

academic writings on the topic means that there is little clarity in the

area. Finally, judges have traditionally been very reticent off the

bench, something which is slowly changing.

Perhaps this reticence means that the limit to extra-judicial

speech or comment is not of great moment in Ireland. Nonetheless,

there have been some significant controversies involving remarks by

judges hereand in neighbouring jurisdictions in recent times. Given

the possible establishment of a Judicial Council, with responsibility

for regulating judicial conduct and ethics,1it is perhaps time that we

looked at the topic in the Irish context.

This article looks at recent occasions where extrajudicial

speech has been the subject of public comment in Ireland. It then

examines case law from other jurisdictions, focusing on examples

from common law countries and looking in some detail at the

American experience, whereformal rules have been drawn up and

applied to a large number of cases. It attempts to distil these into a

theory of how extra-judicial comment should be limited and to

provide practical guidance.

II. WHY SHOULD JUDGES SPEAK OFF THE BENCH?

By speaking publicly, judges leave themselves liable to

accusations of bias and perhaps to having their decisions overturned

on appeal. The boundaries of what they should and should not say

2005] Extra-Judicial Comment by Judges 199

*B.Comm., Dip. Sys. Anal., LL.B., B.L.; Candidate for the LL.M. in General Studies at New

York University School of Law.

1The Report of the Committee on Judicial Conduct and Ethics, published on 25 January 2001,

called for the establishment of a Judicial Council which would deal with judicial salaries and

working conditions, education and discipline. Coulter, “Report wants council to discipline

judges,” Irish Times,26 January 2001. The Government proposed to create it by amending the

Constitution but abandoned this due to opposition protests. O’Halloran and Newman,

“Ahern postpones referendum on removal of judges,” Irish Times, 4May 2001. According to

the Minister of Justice, a bill dealing with the topic will be tabled in 2004. O’Regan, “Judicial

conduct Bill to be tabled this year,” Irish Times. 6May 2004.