Comments by judge highlight need for clear mechanism of complaint

ANALYSIS : We need to equip the interim Judicial Council with more potency and permanence

ANALYSIS: We need to equip the interim Judicial Council with more potency and permanence. Once made statutory, it could target poor conduct with a disciplinary remit

THE REMARKS made by Judge Mary Devins concerning Poles and social welfare, and her subsequent apology, highlight once more the need for a body that can deal with complaints about judicial conduct. Such a body is a judicial council, which has been under discussion for more than a decade.

Judge Devins’s unequivocal second apology demonstrates her understanding that a judge should not make any remark that could be construed as holding a less than impartial attitude towards any person who might come before him or her. A judge makes a solemn declaration to administer justice “without fear or favour, affection or ill-will towards any man”, and any expression of prejudice on the basis of race, religion or anything else is clearly a breach of the judicial declaration.

Unfortunately Judge Devins is not the first judge to express from the bench an opinion that was seen as critical of a specific group of people. In 2003, Judge Harvey Kenny in Castlebar Circuit Court warned a Nigerian woman she would be jailed, to send a message to the Nigerian community “that if you must drive, you must have insurance”. He apologised at a later sitting of the court and acknowledged the comment was improper.

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In a later case in Longford District Court before Judge John Neilan, two African women were charged with shoplifting. Adjourning the case, Judge Neilan said the majority of shopping centres in the area would be putting a ban on access “to coloured people if this type of behaviour does not stop. We give them their dignity and respect and the first thing they do is engage in criminal activity.”

He also apologised and withdrew his remarks later.

However, in none of these instances was there any vehicle for the people concerned, or any organisation on their behalf, to lodge a complaint had no apology been forthcoming.

Each level, or jurisdiction, of the judiciary is presided over by a president who is responsible for the conduct of business within his or her jurisdiction. A judge can be asked to explain his or her words or action to the president of the jurisdiction in question. The president of the District Court, appointed only last month, is Judge Rosemary Horgan.

However, the presidents have no power other than moral authority, and there is no statutory obligation on any judge to respond to an invitation to such a discussion.

Where the matter gives rise to grave concern, the Minister can, under section 21 of the 1946 Courts of Justice (District Court) Act, ask the Chief Justice to appoint a High Court judge to “inquire into the health or conduct of a judge”. This can result in a report going to the Minister which can lead to a process of impeachment in the Dáil, but this is extremely rare.

It is also very drastic. There is nothing between an inquiry, possibly leading to impeachment, and voluntary attendance at a discussion with the president of one of the courts, to deal with a situation where a judge speaks or behaves inappropriately.

This has been recognised for years, and more than a decade ago the then chief justice, Mr Justice Ronan Keane, put forward comprehensive proposals for a judicial council to deal with this issue, among others, including the education and representation of judges. A disciplinary committee, with a range of sanctions, was proposed.

For years nothing happened, but some progress has been made. The previous minister for justice, Dermot Ahern, published the heads of a Judicial Council Bill, and the current programme for government contains a commitment to legislate to set one up.

Meanwhile, the present Chief Justice, in anticipation of legislation, has established an interim Judicial Council. Because it has no statutory basis as yet it has no disciplinary remit, but the architecture is there and there now seems to be little doubt that a fully fledged judicial council will soon come into existence.