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33 2019

JUDICIAL COUNCIL ACT 2019

Chapter 3

Complaints

Complaints

50. (1) A complaint concerning the conduct of a judge (in this Act referred to as the “judge concerned”) that is alleged to constitute judicial misconduct may be made to the Registrar in accordance with the procedures specified by the Judicial Conduct Committee under section 52 by a person who is directly affected by, or who witnessed, the conduct.

(2) A complaint may be made under subsection (1) on behalf of—

(a) a child, by a parent or guardian of the child, or

(b) a person who is unable to make the complaint himself or herself by reason of a mental or physical incapacity, by a person duly authorised by law to act on behalf of the first-mentioned person.

(3) A complaint may be made under subsection (1) on behalf of a solicitor who is a member of the Law Society of Ireland by a duly authorised officer of the Law Society of Ireland.

(4) A complaint may be made under subsection (1) on behalf of a barrister who is a member of the General Council of the Bar of Ireland by a duly authorised officer of the General Council of the Bar of Ireland.

(5) The Registrar shall, as soon as practicable after the receipt of a complaint, notify the judge concerned of the complaint and provide him or her with—

(a) the name of the complainant, and

(b) particulars of the complaint.

(6) Where a complaint is made in accordance with subsection (2), (3) or (4) on behalf of a complainant referred to in each of those subsections by another person, any requirement in this Part to notify the complainant of any matter relating to the complaint or to send a draft report or notice to the complainant shall be construed as a requirement to notify that other person or to send the draft report or notice to that other person, as may be appropriate.

Time limit for making complaints

51. (1) Subject to subsections (2) and (3), a complaint shall be made not later than 3 months after the date of the occurrence or alleged occurrence of the conduct alleged to constitute judicial misconduct that occasioned the complaint.

(2) Where a complaint relates to more than one incident of the occurrence or alleged occurrence of the conduct of the judge concerned that is alleged to constitute judicial misconduct, the complaint in relation to such conduct shall be made not later than 3 months after the date of the last occurrence or alleged occurrence of that conduct.

(3) The Judicial Conduct Committee may, on referral of a complaint or a part of a complaint, by the Registrar under section 53 (5) or by the Complaints Review Committee under section 56 (4), determine that it is just and equitable, having regard to the nature of the conduct or alleged conduct to which the complaint, or the part of the complaint so referred, relates and any other relevant circumstances, for the period referred to in subsection (1) or (2), as may be appropriate, for the making of the complaint to be extended so that the complaint, or the part of the complaint so referred, as the case may be, is admissible.

Procedures of Judicial Conduct Committee relating to complaints or matters relating to judicial conduct

52. (1) The Judicial Conduct Committee shall, subject to this Part, specify procedures relating to—

(a) the making and investigation of complaints under this Part,

(b) investigations under section 59 , and

(c) the making of determinations by it under this Part.

(2) In specifying procedures under subsection (1), the Judicial Conduct Committee shall have regard to the need for it to perform its functions in an effective manner and in accordance with fair procedures.

(3) Without prejudice to the generality of subsection (1), procedures specified under this section may make provision in relation to the following:

(a) the making of a complaint;

(b) the determination of the admissibility of a complaint;

(c) the resolution of a complaint by informal means;

(d) the investigation of a complaint by a panel of inquiry;

(e) the making of a determination by the Judicial Conduct Committee under section 79 ;

(f) the steps and processes to be followed by the Judicial Conduct Committee and a panel of inquiry for the purposes of an investigation under section 59 ;

(g) a referral by the Judicial Conduct Committee under section 80 within the meaning of that section to the Minister and the steps and processes to be followed by the Judicial Conduct Committee and a panel of inquiry with regard to such a referral;

(h) the period within which anything is required to be done under this Part.

(4) The Judicial Conduct Committee shall publish procedures specified by it under this section in such manner as it considers appropriate.

Admissibility of complaints

53. (1) On receiving a complaint, the Registrar shall determine whether or not the complaint is admissible.

(2) Subject to subsection (3), a complaint is admissible if—

(a) the complaint is made by a person authorised under section 50 to make a complaint,

(b) the conduct alleged could, if substantiated, constitute judicial misconduct by the judge concerned,

(c) the complaint is made within the period specified in subsection (1) or (2), as may be appropriate, of section 51 or any extension of that period under subsection (3) of that section,

(d) the complaint is not frivolous or vexatious, and

(e) the complaint is made in compliance with procedures for that purpose specified by the Judicial Conduct Committee under section 52 .

(3) A complaint that relates solely to—

(a) conduct by the judge concerned in proceedings before him or her in respect of which a remedy has already been provided or may be provided if pursued by the complainant—

(i) in those proceedings,

(ii) on appeal from a decision of the judge concerned in those proceedings or on any further appeal from such an appeal until those proceedings are finally determined,

(iii) in proceedings by way of judicial review of any decision of the judge concerned in the proceedings before that judge, or

(iv) in any other proceedings,

or

(b) the merits of a decision in proceedings before the judge concerned,

is not admissible.

(4) Where the Registrar determines that a complaint is admissible in whole or in part, he or she shall refer—

(a) the complaint, or

(b) in the case of a complaint that is admissible in part only, the part of the complaint that he or she determines to be admissible (which, following that determination but subject to section 56 (8), is deemed to constitute the complaint for the purposes of this Act),

to the Judicial Conduct Committee to be dealt with in accordance with section 60 .

(5) Where the Registrar is satisfied that a complaint, or a part of a complaint, would be admissible but for its having been made after the expiration of the period specified in subsection (1) or (2), as may be appropriate, of section 51 , he or she shall refer the complaint, or that part of the complaint, to the Judicial Conduct Committee for its determination under subsection (3) of that section as to whether that period should be extended and, in the event of such an extension, the complaint, or that part of the complaint, shall be dealt with in accordance with section 60 .

Notification following determination of whether or not complaint is admissible

54. (1) Where the Registrar makes a determination under section 53 that a complaint, or a part of a complaint, is inadmissible and does not refer the complaint, or that part of the complaint, to the Judicial Conduct Committee under subsection (5) of that section, he or she shall—

(a) notify the complainant and the judge concerned in writing of—

(i) his or her determination, and

(ii) the complainant’s entitlement under section 56 to seek a review of the determination,

(b) include in the notification the reasons for the determination, and

(c) subject to section 56 , take no further action in relation to the complaint.

(2) Where the Registrar makes a determination under section 53 that a complaint, or a part of a complaint, is admissible or refers a complaint, or a part of the complaint, to the Judicial Conduct Committee under subsection (5) of that section, the Registrar shall, as soon as practicable thereafter, notify the complainant and the judge concerned in writing of the determination or referral, as the case may be.

(3) Following a determination by the Judicial Conduct Committee under section 51 (3) as to whether the time for the making of a complaint, or a part of a complaint, as the case may be, shall be extended, the Registrar shall, as soon as practicable thereafter, notify the complainant and the judge concerned in writing of the determination and the reason therefor and whether or not the complaint, or the part of the complaint, concerned is thereby admissible.

Complaints Review Committee

55. (1) The Judicial Conduct Committee shall establish a committee to be known as the Complaints Review Committee to review, in accordance with section 56 , the admissibility of complaints, or parts of complaints, that have been determined by the Registrar to be inadmissible.

(2) The Complaints Review Committee shall comprise 3 members appointed by the Judicial Conduct Committee, of whom 2 shall be ex officio members of the Judicial Conduct Committee or elected members of the Judicial Conduct Committee and one shall be a lay member of the Judicial Conduct Committee.

(3) Every person appointed under subsection (2) to be a member of the Complaints Review Committee shall serve as a member of the Committee for a term, to be specified in writing at the time of his or her appointment, of not less than one year and not more than 2 years from the date of his or her appointment.

(4) Subject to subsection (5), a member of the Complaints Review Committee whose term of membership expires with the passage of time shall be eligible for re-appointment to the Committee for a further term, to be specified in writing at the time of his or her re-appointment, of not less than one year and not more than 2 years from the date of his or her re-appointment.

(5) A member of the Complaints Review Committee who has served 2 terms of membership shall not be eligible to serve a further term as a member of the Committee other than in accordance with subsection (6).

(6) A member of the Complaints Review Committee who has served 2 terms of membership shall be eligible for re-appointment to the Committee after a period of 2 years has elapsed immediately following the expiration of his or her most recent term of membership of the Committee.

(7) A member of the Complaints Review Committee may resign from his or her membership of the Committee by notice in writing given or sent to the chairperson of the Judicial Conduct Committee.

(8) The Judicial Conduct Committee may appoint another ex officio member of the Judicial Conduct Committee, elected member of the Judicial Conduct Committee or lay member of the Judicial Conduct Committee, as may be appropriate, to fill a casual vacancy arising in the Complaints Review Committee under subsection (7) and subsection (3) shall apply in relation to the filling of any such vacancy.

(9) Where a member of the Complaints Review Committee ceases to be a member of the Judicial Conduct Committee, he or she shall thereupon cease to be a member of the Complaints Review Committee.

(10) Where a matter is required to be determined by the Complaints Review Committee, each member of the Committee shall have one vote and the matter shall be determined by a majority of the votes of the members of the Committee.

(11) Subject to this Act, the Complaints Review Committee may regulate its own procedures, including procedures relating to the conduct of meetings of the Committee.

Review of determination that complaint, or part of complaint, is inadmissible

56. (1) Where the Registrar determines under section 53 that a complaint is inadmissible, the complainant may seek a review of the determination by request in writing in that behalf to the Registrar not later than 30 days after the date of receiving notification of that determination.

(2) Where the Registrar receives a request for a review of a determination that a complaint is inadmissible, the Registrar shall refer the complaint to the Complaints Review Committee and he or she shall notify the complainant and the judge concerned in writing that the complaint has been so referred.

(3) The Complaints Review Committee shall consider a complaint referred to it under subsection (2) and shall determine in accordance with subsections (2) and (3) of section 53 whether or not the complaint is admissible in whole or in part and, if that Committee determines that the complaint is admissible in part only, identify the part of the complaint that is admissible (which, following that determination, is deemed to constitute the complaint for the purposes of this Act).

(4) Where the Complaints Review Committee is satisfied that a complaint, or a part of a complaint, would be admissible but for its having been made after the expiration of the period specified in subsection (1) or (2), as may be appropriate, of section 51 , that Committee shall refer the complaint, or that part of the complaint, to the Judicial Conduct Committee for its determination under subsection (3) of that section as to whether that period should be extended and, in the event of such an extension, the complaint, or that part of the complaint, shall be dealt with in accordance with section 60 .

(5) The Complaints Review Committee shall notify the Registrar in writing of its determination under subsection (3), or a referral of a complaint, or a part of a complaint, as the case may be, under subsection (4), and the reasons therefor.

(6) On receiving a notification under subsection (5) from the Complaints Review Committee that a complaint, or a part of a complaint, is admissible or of a referral of a complaint, or a part of a complaint, as the case may be, under subsection (4), the Registrar shall, as soon as practicable thereafter, notify the complainant, the judge concerned and the Judicial Conduct Committee in writing of the determination or referral, as the case may be, and the reasons therefor.

(7) On receiving a notification under subsection (5) from the Complaints Review Committee that a complaint is inadmissible, the Registrar shall—

(a) notify the complainant and the judge concerned in writing of the determination of the Complaints Review Committee and the reasons therefor, and

(b) take no further action in relation to the complaint.

(8) This section shall apply, with any necessary modifications, to a part of a complaint that is determined by the Registrar under section 53 (4) to be inadmissible.

Withdrawal of complaint under consideration by Registrar or Complaints Review Committee

57. (1) Where a complaint is withdrawn while it is being considered by the Registrar under section 53 , the Registrar may—

(a) decide that no further action should be taken in relation to the matter that is the subject of the complaint, or

(b) refer the matter that is the subject of the complaint to the Judicial Conduct Committee for a decision by that Committee on whether or not to initiate an investigation in relation thereto under section 59 .

(2) Where a complaint is withdrawn while it is being considered by the Complaints Review Committee under section 56 , the Complaints Review Committee may—

(a) decide that no further action should be taken in relation to the matter that is the subject of the complaint, or

(b) refer the matter that is the subject of the complaint to the Judicial Conduct Committee for a decision by that Committee on whether or not to initiate an investigation in relation thereto under section 59 .

(3) (a) Where the Registrar decides in accordance with subsection (1) that no further action should be taken in relation to a complaint, no further action shall be taken in relation to the complaint.

(b) Where the Complaints Review Committee decides in accordance with subsection (2) that no further action should be taken in relation to a complaint, no further action shall be taken in relation to the complaint.

(4) (a) The Registrar shall, as soon as practicable after the making of a decision or referral under subsection (1), notify the complainant and the judge concerned thereof in writing.

(b) The Complaints Review Committee shall notify the Registrar of a decision or referral under subsection (2), and the Registrar shall, as soon as practicable thereafter, notify the complainant and the judge concerned thereof in writing.

If judge concerned consents to reprimand by Judicial Conduct Committee before complaint is investigated

58. (1) The judge concerned may, at any time after a complaint in respect of him or her is determined to be admissible under section 53 or 56 and before a panel of inquiry is appointed under section 64 (1) to investigate the complaint, inform the Judicial Conduct Committee in writing that he or she consents to the issuing of a reprimand to him or her in relation to the complaint.

(2) The Judicial Conduct Committee shall, upon being informed under subsection (1) by the judge concerned that he or she consents to the issuing of a reprimand to him or her in relation to the complaint concerned, consider the nature, gravity and circumstances of the complaint and, if satisfied that it is appropriate to do so having regard to the interests of the administration of justice, issue a reprimand to the judge concerned.

(3) The reprimand of the judge concerned under subsection (2) may provide for any one or more of the matters specified in paragraphs (a) to (c) of section 76 (5).

(4) The Registrar shall, as soon as practicable after the Judicial Conduct Committee issues a reprimand to the judge concerned under subsection (2), notify the complainant in writing thereof.

Investigations of judicial misconduct in absence of, or after withdrawal of, complaint

59. (1) The Judicial Conduct Committee may, in the absence of a complaint or where a complaint in respect of a judge is withdrawn, refer any matter relating to the conduct of a judge to a panel of inquiry for investigation if—

(a) it is satisfied that there exists prima facie evidence of judicial misconduct by the judge, and

(b) it considers it necessary to do so for the purposes of safeguarding the administration of justice.

(2) The provisions of this Part relating to investigations and reports shall apply with all necessary modifications in relation to a matter referred to a panel of inquiry under subsection (1) as if that matter were the subject of a complaint.

(3) Where a matter is referred to the Judicial Conduct Committee under subsection (1) or (2) of section 57 and the Judicial Conduct Committee decides under subsection (1) of this section not to refer the matter that is the subject of the complaint for investigation, no further action shall be taken in relation to that matter and the Registrar shall, as soon as practicable thereafter, notify the complainant and the judge whose conduct is the subject of the withdrawn complaint in writing of that decision.

(4) Where a matter is referred to the Judicial Conduct Committee under subsection (1) or (2) of section 57 and the Judicial Conduct Committee decides under subsection (1) of this section to refer the matter for investigation, the Registrar shall, as soon as practicable thereafter, notify the complainant of that decision.

(5) Where the Judicial Conduct Committee decides under subsection (1) to refer a matter for investigation, the Registrar shall, as soon as practicable thereafter, notify the judge whose conduct is being investigated thereof in writing and provide him or her with particulars of the alleged judicial misconduct concerned.

Referral of complaint for resolution by informal means or investigation

60. (1) Whenever a complaint is determined to be admissible under section 53 or 56 , the Judicial Conduct Committee shall either—

(a) refer the complaint for resolution by informal means under Chapter 4 if it is satisfied that it is appropriate to so do, or

(b) refer the complaint to a panel of inquiry appointed for that purpose under section 64 for investigation.

(2) Where a complaint relates to conduct in relation to proceedings that have not been finally determined, the Judicial Conduct Committee may, where it considers it appropriate to do so, adjourn any investigation of the complaint under this Part pending the final determination of the proceedings.

(3) Whenever the Judicial Conduct Committee receives a report under section 63 (1), it shall consider the report and shall refer the complaint to a panel of inquiry appointed for that purpose under section 64 for investigation.

(4) Whenever the Judicial Conduct Committee receives a report under section 63 (4), it shall consider the report and may, where it considers it appropriate to so do, refer the complaint to a panel of inquiry appointed for that purpose under section 64 for investigation.

(5) The Registrar shall, as soon as practicable after the performance by the Judicial Conduct Committee of any function in relation to a complaint under the foregoing provisions of this section, notify the complainant and the judge concerned in writing thereof.