Extra-judicial comment by judges

AuthorRonan Kennedy
PositionB.Comm., Dip. Sys. Anal., LL.B., B.L.; Candidate for the LL.M. in General Studies at New York University School of Law
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.
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.

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