In a curiously tidy way, recent news items have both illustrated a problem with our system of judicial government and also offered a sensible proposal as to how the difficulty might be resolved.
The problem, disclosed by the circumstances of the Sheedy case, is the way in which suspected judicial impropriety should be investigated and, if necessary, punished. The solution, proposed by a working group of the Courts Commission, chaired by Ms Justice Denham, was the brilliantly simple one that judges should take responsibility for doing this themselves. The particular difficulty of balance in designing a discipline system for judges stems from the need not to infringe the independence of the judiciary and the associated feature of security of judicial tenure. The easiest way to appreciate the tension between independence and an effective system of discipline is to recall a period of English history when the judiciary was not independent.
This period is the early 17th century, just before the English Civil War, when the first two Stuart kings were attempting to rule rather than just reign. They tried to govern without calling parliament by levying taxes based on a strained interpretation of the royal prerogative. This involved violating the citizens' common law rights. Some judges - among whom Coke C.J. was prominent - ruled against the king. At the end of the century, in the major constitutional settlement known as the Bill of Rights, one of the most important elements provided that judges could be removed from office only following the passage of the necessary resolutions in both houses of parliament. This safeguard has been followed in many constitutions, including our own, which stipulates that a judge may be removed only for stated misbehaviour or incapacity, upon the passage of resolutions in the Dail and Seanad. This only applies to High and Supreme Court judges; but a similar protection is given, by statute, to other judges. But the significant point, like the dog which failed to bark in the night, is that such provisions have been so little used: in the UK, the last judge to go following the passage of the necessary motions was the Irish judge, Sir Jonah Barrington (in 1830, for taking money belonging to litigants).
In independent Ireland, a motion has only once even been submitted to the Oireachtas. This was in 1941, when the necessary motion was put down calling for the removal of a Circuit Court judge due to physical incapacity. The judge then offered his resignation and it was accepted. If, as it plainly is, it is undesirable for the judges to be involved with or influenced by the political system, how can the political system provide the machinery by in which they are disciplined? That everyone implicitly accepts the correctness of this criticism is evident from the fumbling way in which the political system deals with erring judges, on the rare occasions when it does so at all.
See, for example, the exchanges in the Dail over the Sheedy case. The Opposition blames the Government, but the Government - and this is a basic point - is not responsible for the judges. It would be hard to think of a more unworkable scheme. Another deficiency in the present system is that there is very little gradation or flexibility. The only possible sanction is removal. It is all or, more usually, nothing. It is, for instance, only in respect of district judges that the courts of justice legislation provides for an investigation, by the Chief Justice or the President of the District Court, into a judge's performance and possibly an admonition. The present investigation into the Sheedy case is not based on any law, but depends upon the co-operation of the judges under investigation. This lack of a workable system and consequently the need for improvisation was illustrated two years ago in Britain. The Court of Appeal heard an appeal from a High Court decision based on a 20 month delay between the hearing of the case and the handing down of judgment.
Moreover, the trial judge confessed that he had mislaid his notes of the evidence of the trial so that his decision was glaringly unsafe. The Court of Appeal ruled that the case would have to be reheard. But the most significant element of its judgment was a condemnation of the High Court judge, in the most stringent terms. The judge duly resigned.
Similar ad hoc contrivances have served here, too. Thus, for example, when Mr Gerry Boland was minister for justice, he was crossing Stephen's Green when he encountered the circuit judge for the Western Circuit, at a time when the judge should have been presiding in Galway. Mr Boland threatened the judge with a motion for his removal unless he took the afternoon train for Galway, which he duly did. In 1957, on hearing a prosecution under the Offences Against the State Act, 1939, a district justice asked the prosecutor very caustically: "Why does this proclamation not end up with the words `God save the King'?" Eventually, government pressure led to the justice's resignation.
But all this is rather random. It depends upon such variables as: whether politicians and civil servants want to tangle with a judge; how leather-necked the particular judge is; or pressure from the rather fickle source of media or public. We really do need a more reliable and consistent system.
MOREOVER, it is rare outside the Supreme Court for a judge to sit with colleagues, and consequently she or he has no one to consult and must bear the responsibility, in a very public way, of personifying that elusive concept, justice according to the law.
It is small wonder that in a minority of cases the strain becomes too much and shows itself as absenteeism, arrogance or erratic decision-making. In such an important field, we need a reliable, sensitive and probably confidential method of dealing with misconduct. If the political system is not to be the disciplinary element, then who is to provide it?
Not, I think - despite Mr Jim Mitchell's suggestion - the President. That would, as with the present system, make it too high-profile and likely that it would be thought too heavy an axe to wield except in the most glaring cases. But now that we have the courts management service coming into force in the next few months, which will be largely under the control of the judges themselves, rather than the somewhat trembling Department of Justice, it makes sense that the disciplinary function should also be vested in judges.
This arrangement, which exists in some of the US states, has been proposed not only by the Denham committee but also by that monument of common sense, the constitutional review group (1996). There might be a fear that if this disciplinary body were made up exclusively of judges, it might be influenced by a feeling of loyalty to one of its own: judge doesn't eat judge, it might be said. Any such danger could be avoided by including a substantial lay element.
As well as considering the performance of individual judges, such a body would be well qualified to draw up a code of practice dealing with what is or is not a conflict of interest - something which came up in Britain, last month, in the context of judges owning shares.
It could also consider such questions as: judicial involvement in extra-curial activities such as chairing tribunals or commissions; and the extraordinary practice, followed by some district judges, of obliging the prosecution to withdraw the charge and bring in "the Probation Act", in a case in which the accused is plainly guilty.
The changes proposed here would require a constitutional amendment. Be it so (as judges like to say). We have had constitutional amendments on much slighter grounds.
David Gwynn Morgan is Professor of Law at UCC
