Michael Clifford: Who judges the judges in Ireland?

A defendant in a case in Killarney in 2016 says Judge James O’Connor called him ‘English scum’, but there is no system to prove or disprove this claim, writes Michael Clifford.

ADDRESSING a citizen of the UK in a public place as “English scum” could lead to prosecution, under the Incitement to Hatred Act. The act provides for a fine up to €1,000 and up to in six months in prison.

Any prosecution would be heard in the district court, where a judge would decide, without the aid of a jury, as to the guilt or innocence of a defendant.

So it goes with law and order for citizens. But what if a judge, sitting in the district court, was alleged to have called a defendant “English scum”?

Where can such a person be held to account, or, as the case may be, where can such a judge publicly clear his name?

That is the scenario for Judge James O’Connor, who oversees the Kerry district. In October 2016, Paul Harrison, an English national living in Killarney, was before the court on a remand hearing for a charge of possession of drugs.

He claims Judge O’Connor called him “English scum”. The judge is understood to strongly deny the allegation. Attempts to contact Judge O’Connor, through the Court Service, were unsuccessful.

Mr Harrison wrote to then chief justice, Susan Denham, last July, to complain about what he says he was subjected to in a public court.

“I would like to complain, in the strongest possible terms, about the conduct of Judge O’Connor, in the Killarney court, on 18th October 2016,” Mr Harrison wrote.

“I would also like to request a tape of the day’s proceedings.”

Judge James O’Connor.
Judge James O’Connor.

One might reasonably expect that Mr Harrison’s issues could be dealt with properly and expediently. If there was a statutory system, through which complaints of judicial conduct could be processed, the matter would have been dealt with by now.

The complaint would either be determined to have been vexatious, or not to meet the required standard of proof, or to have been upheld.

In the event of the first two scenarios, the system could ensure that the outcome be publicly disseminated, so no shadow might hang over the judge.

In the event that the complaint was upheld, a range of sanctions could be imposed, including an apology, or a fine of some sorts.

That’s how they do things in other democracies, in the early 21st century.

Not here.

Judge Denham, as she then was, before her retirement, could do nothing about Mr Harrison’s complaint. She couldn’t even enter into correspondence with him. Instead, a legal executive wrote on behalf of her, explaining why this was necessary.

“I am writing to inform you that, because judges are subject only to the Constitution and the law, independent in the exercise of their judicial functions, the chief justice does not enter into any correspondence concerning the conduct of, or decision reached, in any court case.

“The chief justice has no function in dealing with complaints in relation to members of the judiciary, and there is no complaints procedure available through the office of the chief justice,” the legal executive wrote.

The legal executive pointed out the kernel of the problem.

“The creation of a judicial council is awaited and the chief justice is hopeful that a judicial council bill will be enacted into law. The proposed judicial council bill would provide a process for complaints against judicial conduct.”

A judicial council was first proposed by the judiciary 20 years ago, but has yet to see the light of day. A judicial council bill is currently going through the Oireachtas, but there is, as of yet, no sign of white smoke to indicate that it will be finalised.

While politicians bear most of the blame for a failure to have such a council, the judiciary is not blameless. The men and women of the bench want a council, but have long been particular as to the parameters of such a body.

For instance, last autumn, they successfully lobbied to have proposed hearings into allegations of misconduct held in private, although, as of now, it appears that determinations of misconduct will be made public.

Previous bills were drafted, but never materialised, and there is no guarantee that this one will succeed. The notion that judges’ conduct continues to be beyond any accountability is a staggering indictment in a democracy.

In the matter of Mr Harrison and the judge, the chief justice passed it onto the president of the district court, Judge Rosemary Horgan.

She is inquiring into the matter, but has no power to issue any ruling or sanction.

The other issue that came to light in the case is the failure to retain a record of the court proceedings. Most district courts are equipped with digital audio recordings, which are turned on while the court is in session.

There was no DAR on the day Mr Harrison complained about. According to a number of sources on the court circuit in Kerry, the judge only uses the system infrequently.

The inquiry being conducted by Judge Horgan is understood to be delayed because of the failure, thus far, to locate any record of the proceedings on the day in question.

There is no obligation for judges to use the DAR system, despite the fact that many of them are grateful for it, as it provides a record that can be used for their protection.

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