The disciplinary regime for judges is set to become quicker and clearer but – unlike for solicitors and barristers – hearings will remain behind closed doors, under plans published yesterday.
Among the proposals put forward by Lord Chancellor Dominic Raab and the Lord Chief Justice, Lord Burnett, are an expedited procedure for less serious cases, a lay majority on disciplinary tribunals and the publication, for longer periods, of more detailed statements about judicial misconduct.
The consultation paper followed a year-long review of the judicial disciplinary system chaired by the former Lady Justice Rafferty, who retired in July last year, and was replaced by Lady Justice Carr.
They were joined by officials from the Judicial Conduct Investigations Office (JCIO), Judicial Office, Ministry of Justice and HM Courts and Tribunals Service, and a lay judicial disciplinary panel member.
The expedited procedure would affect around 30% of cases, where there was agreement about the facts and the sanction was “very unlikely” to exceed a warning.
“This would be similar in some respects to procedures used by regulatory bodies such as the Bar Standards Board and many employers, including the Ministry of Justice.”
The JCIO would agree a statement of facts with the office-holder and then refer the case to the Lord Chancellor and LCJ for a decision.
Rather than being made up of two judges and two lay members, disciplinary panels should be composed of two lay members and one judge, who would act as chair.
The consultation said: “Legal knowledge or experience is not required to consider cases of misconduct as this relates to the personal behaviour of an office-holder, not how they have interpreted the law in dealing with a case.
“We believe that an office-holder who is senior to the subject of the complaint alongside two independent lay members will provide a good balance of judicial and lay input.
“A lay majority is in line with modern practice and should help to demonstrate to the public that the process is independent and fair.”
A new right to an oral hearing would be introduced, as required by natural justice.
Suspensions, which can currently only be imposed in limited cases, could be applied to “any case of misconduct which falls just short of warranting removal from office”.
The consultation said this could be particularly useful in cases of gross misconduct that “would ordinarily result in removal from office, but in which there is exceptional mitigation”.
Recognising that the bodies which regulate solicitors, barristers, doctors and the police allow the public access to “certain parts of their disciplinary processes” the working group considered disciplinary panel hearings on the basis that, unless there were good reasons not to recommend public hearings, it would do so.
However, it concluded that the arguments against holding them in public outweighed any potential benefits.
Reasons included that a hearing did not culminate in the panel deciding the outcome of a case. The panels make recommendations to the Lord Chancellor and Lord Chief Justice in a later written report which was not published.
“This sets the panels apart from other regulatory or disciplinary panels and, we believe, means that public hearings would have less value in terms of insight into the decision-making process.
“The personal involvement of the Lord Chancellor and Lord Chief Justice, whose joint decisions are published, provides validation of the process, which we believe carries considerable weight, lessening the need to open the process to the public.”
The working group also worried about the impact of public knowledge of an office-holder’s involvement in disciplinary proceedings, which could result in “undue damage” to their reputation and could make it difficult to function effectively during a disciplinary case.
“This could lead to an increase in complaints about the individual, requests for recusal and challenges to their decisions.”
But the group said more details should be given in published statements about the circumstances in which misconduct occurred, the misconduct itself, the office-holder’s response and any aggravating or mitigating factors.
The existing publication periods should be extended. For those judges removed from office, statements should be published for an indefinite period, rather than the existing limit of five years. For other sanctions, the period should be increased from one year to a longer period of between two to eight years.
Mr Raab and Lord Burnett said in a joint foreword to the consultation that the JCIO had dealt with over 10,000 complaints since its creation in 2013, and the fact that only around 50 complaints were upheld every year showed that misconduct by judges was rare.
However, in “a small proportion of cases”, investigations took “too long” and although it would be wrong to describe the system as closed, “more could be done to aid public understanding of disciplinary decisions”.