Analysis: from training judges to guidelines for sentencing and personal injuries awards, the new Bill contains many welcome innovations
The Judicial Council Bill finally passed all stages of the Oireachtas before the summer recess. Although overdue, it is a positive development for the Irish justice system because it will establish for the first time a Judicial Council, a body to represent the Irish judiciary and to formalise many of its operations.
The Judicial Council will have several functions. It will facilitate education and training for judges, it will provide a mechanism for investigating complaints against judges and it will establish sentencing guidelines and guidelines for awarding damages in personal injuries claims.
The passage of the Bill is the culmination of many false starts, and lobbying both within and beyond the judiciary. On her retirement in 2017, departing Chief Justice Susan Denham lamented successive governments' inaction to introduce a Judicial Council. An All-Party Oireachtas Committee had recommended introducing a Judicial Council as far back as 1999. The European Council’s Group of States against Corruption (GRECO) had criticised the ongoing failure to introduce a judicial council, contrary to the norm in other jurisdictions, as a possible threat to the Irish judiciary’s independence. As such, the Bill is an important, long sought after development.
From RTÉ Radio 1's Drivetime, a July 2017 report on the appointment of Judge Frank Clarke to succeed Susan Denham as Chief Justice
Education and training for judges
The delivery of education and training for judges in Ireland has been relatively informal, although the level and degree of education and training has improved in recent years. Through the Judicial Council, education and training of judges will now be a statutory requirement, to be organised by a Judicial Studies Committee. This has the potential to be the Bill’s most significant long-term impact on how justice is done in Ireland.
Judicial education and training is particularly important for newly appointed Irish judges. Unlike in some jurisdictions - such as Germany where university graduates train to be judges from the start of their careers - in Ireland, experienced lawyers are appointed to the bench. These lawyers turned judges experience a dramatic professional transformation. From fighting ardently for clients, often in highly specialist areas of law, they are expected to immediately transform into neutral, impartial decision-makers in all areas of law. Although there is overlap in the skillsets of lawyers and judges - knowing about law and court procedure, for instance - their roles are very different. Training and education must reflect that, to support them in their new role.
Brian Barry's TedX talk on how judges judge
Alongside keeping abreast of legal developments, wider and more formalised judicial education and training can help judges to develop skills to become expert legal decision-makers. Training on implicit biases, the psychology of decision-making (both as individual judges, and as members of a group on a judicial panel), the appropriate management of emotion in a judicial setting, and workload management are just some of the areas of education and training that are essential to improving a judge's skillset.
Many academic researchers in other jurisdictions collaborate directly with judges to deliver research-led education and training. In the United States, for instance, judges participate in mock trial experiments to identify their errors when deciding cases. Embracing education and training is a hallmark of any excellent judiciary and the Bill's emphasis on this affords an opportunity for the Irish judiciary to lead in this regard.
No Irish judge has ever been formally removed from office, although there have been occasions where initial steps were taken. The criteria for removing a judge from office are set by the Constitution, namely "stated misbehaviour or incapacity." Both Houses of the Oireachtas must agree to remove a judge on this basis. Because these roles are set out in the Constitution, the Judicial Council cannot serve to remove judges.
If a judge is reprimanded, he or she will be named publicly
But lower down the disciplinary ladder, the Judicial Council will have powers to investigate complaints against judges. A Judicial Conduct Committee comprising judges and lay members will be established to set out guidelines for judicial conduct and ethics, and it will have powers to investigate complaints against judges.
Informal resolution of complaints will be the first resort, escalating to a panel inquiry for formal investigation if needed. If a complaint is upheld, the judge can be reprimanded, issued with advice, recommended to pursue certain courses or training, or issued an admonishment. Notably, if a judge is reprimanded, he or she will be named publicly.
Guidelines for sentencing and personal injuries awards
The Bill establishes a Sentencing Guidelines and Information Committee and a Personal Injuries Guidelines Committee. Both committees will draft guidelines for the Judicial Council to adopt on sentencing and personal injuries awards respectively.
From RTÉ Radio 1's Morning Ireland, a discussion on the personal injuries guidelines in the Judicial Council Bill with Peter Boland from the Alliance for Insurance Reform and Rob Smyth, head of fraud and investigations at Aviva Ireland
These were late additions to the Bill and are, to some degree, a political reaction to perceived trends of inconsistent sentencing and inappropriate awards in personal injuries cases. Introducing guidelines gives rise to the thorny issue of how much a judge's discretion should be curtailed in an individual case. However, the goal of achieving more consistent, appropriate sentencing and awards of damages in personal injuries cases is undoubtedly worthwhile. There is ample evidence from researchers elsewhere that judges can have difficulty when deciding on quantitative amounts (months in prison, for instance) based on qualitative judgments (for example, the heinousness of a particular crime).
Again - like training and continuing professional education - bespoke, research-informed collaboration with judges is paramount to the success and workability of guidelines in sentencing and personal injuries awards. The Bill seems to provide for collaboration: judges from all levels of the court system sit on both committees that will draft guidelines. Importantly, the Bill prescribes timeframes at which guidelines must be reviewed. At this stage, it is perhaps too early to say whether the guidelines will benefit litigants and judges alike. In theory at least, it is a positive development.
These guidelines are a political reaction to perceived trends of inconsistent sentencing and inappropriate awards in personal injuries case
Overall, the establishment of the Judicial Council is a welcome, much-needed innovation for the Irish judiciary. Better, fairer justice - particularly through the improved provision of education and training for judges - should be the result.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ