Disciplinary panels hearing cases of judicial misconduct will have lay majorities, the Ministry of Justice (MoJ) and the judiciary have decided, as part of a major overhaul of the system.
They confirmed that, unlike solicitors and barristers, disciplinary hearings for judges will be held in private.
They launched a joint consultation on the judicial disciplinary system in last November, following a year-long review chaired by Lady Justice Rafferty and, after her retirement, by Lady Justice Carr.
Instead of the current panels made up of two judges and two lay members, future panels will be made up of only one judge and two lay members, with the judge in the chair.
In their response to the consultation, the MoJ and Courts and Tribunals Judiciary said a lay majority would help demonstrate to the public that the process was “independent and fair”, while a reduction in members from four to three would help them be formed quickly.
“While we acknowledge the concerns of those respondents who referred to issues such as constitutional propriety, we do not believe that this proposal is unconstitutional.”
They said that, even though allowing public access to judicial disciplinary hearings did not feature in the consultation, “a small number of respondents” argued for it.
“Our position remains that, following the working group’s careful consideration of this issue, we are not convinced that public hearings would benefit the system.”
The reforms would replace the very limited circumstances in which judges can be suspended, such as for a criminal conviction, and introduce suspensions without pay as a general sanction for misconduct.
“The intention behind the introduction of suspension as a sanction for misconduct is that it would effectively sit between reprimand (the second most serious sanction currently available) and the ultimate sanction of removal from office.
“Its use would be considered only in the most serious cases which fall just short of warranting removal from office.” For example, it could be used where, “due to exceptional mitigation”, removal would be “too harsh”.
Judges accused of misconduct would have a new right to an oral hearing, after anecdotal evidence suggested there were problems with cases being decided on the papers alone where judges wanted to address panels in person.
They would also have the right to be accompanied at disciplinary hearings, so long as they were accompanied by another judge, who would not be permitted to take part or act as an advocate.
In an extension to its remit, the Judicial Conduct Investigations Office (JCIO) would be responsible for investigating complaints about tribunal members, rather than chamber presidents as now.
The MoJ and judiciary decided not to go ahead with a proposal which would have allowed the JCIO to launch an investigation in the absence of a complaint about a judge.
Under the new rules, the JCIO’s role will not be to “fish for information” but to refer information to a nominated judge, who will make the decision, where it has been brought to the JCIO’s attention, for example by a press report.
An expedited procedure will be introduced for low-level disciplinary cases where the facts are agreed and the Lord Chancellor and Lord Chief Justice would be “very likely to agree that misconduct had occurred” and “very unlikely to impose a sanction above a formal warning”.
Disciplinary statements will contain more detail about the circumstances of the misconduct, the details of the offence and the office-holder’s response.
Publication periods on the JCIO’s website will be extended to an indefinite period for removals from office, instead of five years.
For other sanctions, the period will be increased from one year to a longer period of between two to eight years, depending on the seriousness of the offence.
In a joint statement, Dominic Raab, the Lord Chancellor and justice secretary, and the Lord Chief Justice, Lord Burnett, said: “We regard it as vital to public confidence in the judiciary that action is taken on those rare occasions when judicial office-holders do not behave as they should. A fair and effective disciplinary system is vital to achieving that aim.
“We believe that the changes set out in this report will help to create an improved disciplinary system that, while preserving what already works well, will enable complaints about misconduct by judicial office-holders to be dealt with in a more timely, proportionate and transparent way.”