Informal Responses to Judicial Misconduct: Assessing chapter 4 of the Judicial Council Act

• Author: Patrick O'Brien
• Position: Senior Lecturer, School of Law, Oxford Brookes University
• Pages: 89-102

IRISH JUDICIAL STUDIES JOURNAL

89

[2022] Irish Judicial Studies Journal Vol 6(1)

89

INFORMAL RESPONSES TO JUDICIAL

MISCONDUCT:

ASSESSING CHAPTER 4 OF THE JUDICIAL

COUNCIL ACT

Abstract: The Judicial Council Act 2019 contains a process for statutory informal resolution of complaints

against judges. This article surveys a number of disciplinary systems in common law countries and draws

comparison with the 2019 Act. The Act introduces an informal disciplinary process that effectively operates

as a form of ‘mediation’, as it depends on the consent of the complainant and judge involved. Comparative

evidence from other jurisdictions suggests that this mediation approach leads to less use of informal discipline

than occurs in systems which offer more discretion, so it is possible that the informal process in the 2019 Act

will not be used significantly. Aspects of the detailed process contained in Chapter 4 are also ambiguous and

may result in minor complaints being forced through the formal disciplinary process.

Author: Patrick O’Brien, Senior Lecturer, School of Law, Oxford Brookes University

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Introduction

The introduction of a disciplinary system for judges under the Judicial Council Act 2019

offers a long-overdue process that is capable of both holding Irish judges to account and

reinforcing their credibility and quality to the general public. However, exposing allegations

of misbehaviour to the public is a double-edged sword. This is complicated when, as is

common in workplace disciplinary matters, the balance between the welfare needs of a judge

who has misbehaved and the importance of holding them accountable is not clear-cut. Judges

are in a special position, and it is reasonable to expect high standards of conduct from them;

yet the inexorable move towards a more collegiate and managerial judicial structure also

entails something more like traditional industrial relations approaches.

In this article I argue that informal disciplinary processes are valuable and should be

encouraged within the confines of the new system. Evidence from other jurisdictions

suggests that statutory informal processes are used more when investigating judges are

allowed more discretion. The evidence further suggests that using informal processes to

respond to judicial misconduct can produce better outcomes than recourse to formal

investigation and sanction. To the extent that the Act adopts a ‘mediation’ approach to

informal resolution, I argue that this is likely to constrain informal resolution. Finally, I raise

some issues with the detailed provisions of the 2019 Act and the ambiguity of the process it

envisages. The emphasis of the Act is on formal processes, and on the complaints system as

something more akin to mediation than to an informal disciplinary system. Yet, the vast

majority of misconduct issues will be minor and will not be escalated to this formal process.

This is a missed opportunity, and to the extent that it may be remedied by the anticipated

guidance from the Judicial Council, the guidance should attempt to carve out a meaningful

role for informal approaches to judicial conduct issues.

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Contact: patrick.obrien@brookes.ac.uk. I am grateful to the organisers and contributors at the Irish

Research Council seminar on Judicial Conduct in Ireland in October 2021 for comments and feedback.