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

AuthorPatrick O'Brien
PositionSenior Lecturer, School of Law, Oxford Brookes University
[2022] Irish Judicial Studies Journal Vol 6(1)
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
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.
Contact: 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.

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