The Definition of Judicial Misconduct in the Judicial Council Act 2019

• Author: Eunice Collins
• Position: LL.B (Dub), BCL (Oxon)
• Pages: 69-88

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THE DEFINITION OF JUDICIAL MISCONDUCT

IN THE JUDICIAL COUNCIL ACT 2019

Abstract: This article examines the statutory definition of judicial misconduct in the Judicial Council Act

2019 in detail. It draws on examples of judicial misconduct in other jurisdictions, such as Australia and

England & Wales, to shed light on the meaning of acknowledged standards of judicial conduct in an Irish

context. It then explores what is meant by bringing the administration of justice into disrepute.

Author: Eunice Collins, LL.B (Dub), BCL (Oxon).

Introduction

The Constitution of Ireland provides for the removal of judges of the higher courts for

‘stated misbehaviour or incapacity’ if the Dáil and Seanad pass resolutions to this effect.

1

If

such resolutions were passed, the President would then remove the judge from office.

2

While

there is no definition of misbehaviour in the Constitution, there is a statutory definition of

‘judicial misconduct’ in the Judicial Council Act 2019 (the Act). This article will examine the

statutory definition of judicial misconduct in detail and draw on examples from common law

countries to flesh out the meaning of acknowledged standards of judicial conduct.

Traditionally, Irish judges have been subject to informal discipline (short of removal) on

an ad hoc basis by the President of the court in which they operate. Recently, a somewhat

similar process called ‘informal resolution’ has been placed on a statutory footing by the Act.

The Judicial Conduct Committee (JCC) will investigate allegations of judicial misconduct,

3

and may arrange for the informal resolution of admissible complaints, with the consent of

the judge in question.

4

The JCC may refer a matter to the Minister of Justice and suggest

that the Houses of the Oireachtas examine whether the judge should be removed from office

for stated misbehaviour or incapacity.

5

This is similar to the process in England & Wales

where the Judicial Conduct Investigations Office (JCIO) may investigate complaints.

6

JCIO

decisions may be reviewed by the Judicial Appointment and Complaints Ombudsman,

7

and

the Lord Chancellor and Lord Chief Justice retain disciplinary (but not removal) powers.

8

The key issue that this article seeks to address is how to define ‘judicial misconduct’. Two

preliminary points should be noted before turning to the statutory definition. First, while the

definition of judicial incapacity is beyond the scope of this article, incapacity and

misbehaviour may arise on the same facts. For example, Mr Justice Jeff Shaw of the New

South Wales Supreme Court resigned after he was found driving under the influence of

1

Article 35(4) 1° of the Constitution of Ireland.

2

Article 35(4) 3° of the Constitution of Ireland.

3

Chapter 4 of Par t 5 of the Judicial Council Act 2019 (not yet commenced). Pursuant to s 43 of the Act, the

Judicial Council nominated 30 June 2020 as the establishment date for the JCC. The JCC is appointed by the

government and consists of eight judges and five lay people without legal qualifications.

4

ibid ss 61 and 62.

5

ibid s 80.

6

Judicial Discipline (Prescribed Procedures) Regulations 2014, reg 4(2).

7

Constitutional Reform Act 2005 ss 110-114, schedule 13.

8

ibid part 4.

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alcohol and sought treatment for alcoholism.

9

This illustrates that incapacity and stated

misbehaviour are not mutually exclusive. Secondly, the relationship between the terms

‘misbehaviour’ (as per the Constitution) and ‘misconduct’ (as per the Act) is somewhat

unclear. On the one hand, the plain ordinary use of these words is to treat them as synonyms.

On the other hand, the constitutional standard is only engaged in the context of actions by

judges which could justify their removal from office, whereas the statutory standard may be

engaged in a broader range of contexts.

10

The JCC may refer a matter to the Minister for

Justice who shall then propose the motion that a judge be removed from office under Article

35.4.1 of the Constitution (the misbehaviour standard) following an investigation into judicial

misconduct.

11

This indicates that misbehaviour is a subset of misconduct, that judicial

misconduct includes misconduct which falls far below what is required to remove a judge

and that the JCC may consider both misconduct and misbehaviour.

The meaning of both ‘stated misbehaviour’ and ‘misconduct’ will be influenced by our

conception of the separation of powers and judicial independence under Article 6 of the

Constitution as well as a historical sense of when the legislature should be entitled to remove

a judge from office. The question has been raised as to whether the Houses of the Oireachtas

could define ‘stated misbehaviour’ in any manner or as any particular conduct that the

majority agree upon,

12

or whether stated misbehaviour involves ‘an objective standard of

misbehaviour […][which] could be reviewed by the High Court’.

13

In order for judges to be

able to meet the standards to which they are held, judges must be able to know of and comply

with those standards in advance of a misconduct allegation. Therefore, stated misbehaviour

ought to capable of at least some definitional parameters without waiting for an ad hoc

Oireachtas decision (although whether a factual pattern falls within such definitional

parameters is a different question). It seems possible that the courts could review an

Oireachtas characterisation of misbehaviour if it were necessary to do so in order to protect

judicial independence and to prevent abuse that could flow from a mere majoritarian dislike

of a judge or of any of their judicial decisions.

14

Such judicial review would require some

9

Gabrielle Appleby and Susan Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional

Integrity’ (2014) 38 Melbourne University Law Review 1, 13; James Thomas, Judicial Ethics in Australia (3rd edn,

LexisNexis Butterworths 2009) 170-1 [10.11].

10

The Constitutional Review Group sought to bring more precision to the concept of ‘stated misbehaviour’ by

suggesting the addition of the words ‘prejudice to the office of judge’ but this suggestion has not been adopted.

See Report of the Constitution Review Group (1996) 184-185.

11

The Act s 80.

12

This view was expressed by C ongressman (later President) Gerald Ford in the United States in 1970. When

Ford demanded an investigation and, if warranted, a vote on the impeachment of U.S. Supreme Court Justice

William O. Douglas, Ford declared that ‘an impeachable offense is whatever a majority of the House of

Representatives considers it to be at a given moment in history’ and that a ‘conviction results from whatever ...

two-thirds of the [Senate] considers to be sufficiently serious to require removal of the accused from office.’

See Brian C Kalt, ‘Presidential Impeachment and Removal: From the Two-Party System to the Two-Reality

System’ (2019) 27 Geo. Mason L. Rev. 1.

13

Gerald Hogan, Gerry Whyte, David Kenny and Rachael Walsh, Kelly: The Irish Constitution (5th ed n,

Bloomsbury Professional 2018) para 6.4.51.

14

This seems likely in light of Curtin v Dáil Eireann [2006] IESC 14 (refe renced below) which notes that ‘the

Appellant’s complaint is necessarily narrowed down to an issue of whether he can show t hat the procedure

before each House, following receipt of the Committee report, will necessarily be in clear d isregard of [the

constitutional principles of basic fairness of procedures and the requirements of natural and constitutional

justice].’ Similar ly, Cahillane and Kenny are of the opinion that the courts might ‘prevent abuse’ such as a

decision ‘in bad faith or with reckless disregard for the independence of the judiciary’ but would give the