Statement raises key questions about that ‘casual conversation’ in Four Courts yard

The statement from the presidents of the High Court and Circuit Court – issued just eight hours after an inquiry was announced – answers some of the questions raised by reports of an improper approach by one judge to another over a family law case.

However it also raises some new ones.

Mr Justice Nicholas Kearns and Mr Justice Raymond Groarke, who investigated the claims "as a matter of urgency" yesterday, confirmed that the Circuit Court judge in question was Desmond Hogan, a former midlands-based solicitor who was appointed to the bench in 1989.

According to an account from Mr Justice Henry Abbott of the High Court, he bumped into Judge Hogan in the yard of the Four Courts a few days after July 21st, 2010 – the day on which he had delivered a ruling in a family law case.

In the course of a “casual conversation”, Judge Hogan asked was it true that he had made a particular order in the case. The High Court judge “took exception” and dealt with it by saying the reasons for his decision would be detailed in a written judgment in due course. This was eventually delivered on July 26th, 2011.

“The making of this inquiry to Judge Abbott was the subject of certain questions put by Judge Abbott of one of the parties during a later hearing on 15 February, 2013, and was subsequently referred to by Judge Abbott in his ruling on 12 July, 2013,” according to last night’s statement.

When this account was put to Judge Hogan, he said that at this remove he was unable to recall the conversation or how he came by the information that a particular ruling had been made in July 2010.

He would not dispute that he may have asked Mr Justice Abbott “in a casual way” about the case, but he was satisfied that he had “no solicitation or request to that end from any politician or from any party involved in or connected with the case in any way”.

Judge Hogan said there had been “absolutely no intention” of interfering with the case or influencing its outcome in any way and he “deeply regrets” that his query may have given rise to any such apprehension.

All of this invites an obvious question: why did Judge Hogan raise the matter in the first place? He is “satisfied” that he was not asked to raise it by any politician or anyone connected to the case, but cannot recall why he would have inquired about it.

Were the circumstances of the case so unusual that it was the talk of the Law Library? We don’t know, because the judgment itself hasn’t been published four months after it was delivered.

Publication of the ruling may shed light on a further point.

According to the Sunday Times, the ruling states that the Circuit Court judge raised the case with Mr Justice Abbott following a representation from a former TD. Former Fianna Fáil TD Mary O'Rourke said yesterday she was contacted by the mother in the case through her constituency clinic but categorically denied making an approach to any judge about the matter.

The controversy also raises a more general – but no less important – point.

In most European countries, a claim about a judge making an improper approach to a colleague on the bench would be referred to a judicial council – a statutory body designed to deal with training, standards, conduct and efficiency in the judiciary.

Despite it having been talked about for about 20 years, Ireland doesn't have such a body. This week's allegations are another reminder of why it should.

The bottom line is that there is no formal procedure in place for investigations such as the one carried out yesterday.

The presidents of each court have no power other than moral authority and there is no statutory obligation on any judge even to respond to their requests.

At one end of the disciplinary spectrum, the Oireachtas has the power to impeach a judge in exceptional circumstances, a process that has rarely been invoked.

But between that drastic measure and a voluntary discussion with the president of one of the courts, there is no procedure to deal with a situation where a judge speaks or behaves inappropriately.

Senior judges have been calling for a judicial council since the mid-1990s and have even gone as far as setting one up on an interim footing.

In 2010, then minister for justice Dermot Ahern published the heads of a Judicial Council Bill, which included provision for a judicial conduct committee, with lay representation, which would examine allegations against judges in relation to their conduct both on and off the bench. It fell by the wayside.

A judicial council Bill has been promised by the current Government as well.

It was due to be published this year, but the Department of Justice said yesterday it was now “more likely” to appear in 2014. And so a 20-year saga rumbles on.