Feeling let down by State’s judicial arm

A vulnerable woman, seeking a barring order against an abusive husband, ended up being fearful of the judge who presided over her case and pursued her outside the courtroom, writes Special Correspondent Michael Clifford

Ms A was going through a tough time in life when she met the judge. Originally from Eastern Europe, she had come to Ireland nearly a decade previously, was taken by the place and settled down here with her husband. They had children but the marriage hit the rocks. Her husband was living outside the family home.

She had encountered issues in her former place of work where she felt she was treated very badly. As a result of that she was on medication for stress and trauma. Then her husband showed up at the family home, and, Ms A claims, assaulted her.

She sought relief in the law, applying to get an exclusion order in the family courts. After three appearances before the judge, the first without legal representation, he granted her an interim barring order. During the last of those hearings, Ms A claims, the judge asked for the phone numbers of both her and her husband, who was also present. She was surprised at the request but her solicitor told her to go ahead and give it.

Later that day, she said in a garda statement, she noticed a missed call on her mobile phone. She rang back and after some confusion realised she was talking to the judge who had presided at the hearing.

“I was then getting stressed out,” she said in a statement.

“I asked was something wrong with the case should I go back. The man replied ‘no everything is good with the case. I just wanted to talk to you.’ He said, ‘you looked very beautiful today’. I said ‘Ok’. He then said, ‘no, no really.’ At this point I asked is this a prank call. He said, ‘no, no I just rang.”

The judge, she claims, told her things were busy and they might talk again. The following month, the judge rang again, she says. She told him she was going on holidays and he suggested they meet when she returned. Ms A went on holidays with her children to Fuerteventura. While there says she received a text from the judge. ‘Hi how are you? Enjoy the sunshine.’ He signed it with his first name.

She responded “All is good in Fuerteventura sky. Plenty of ice cream to keep kids happy and quiet. Though back to reality in few days.” The judge responded: “Enjoy” with a smiley face emoji.

A few days after returning from holidays she received another phone call from the judge. “He asked were we back from holidays and said my skin must look nice now,” Ms A related in her statement. “I didn’t reply, just ignored but now it was weird. I was still thinking there must be something he wanted to tell me.

“He said, let’s meet up for the coffee next week I said yes. In my mind I thought this over and done, find out what he wants to say.”

The judge, she claims, asked where she lived. She told him the general area and the road.

“He said, ‘oh yes I know the houses there, give me the house number’ I said no, well actually I said this address is on the same case file as you got this number. He was laughing. I wasn’t laughing.”

She didn’t want him coming to her house so she agreed to meet him for coffee in another town. He rang her on the morning of the appointment to check that everything was ok. She said it was. They met, she claims, during the judge’s lunchbreak from a court.

“We were having general conversation. I was thinking he was going to give me some important information but then I realised it was not to give me legal advice,” her statement reads.

She says she spoke mainly about the problems she had in her former job and how she had been treated.

“So I told (NAME) about being put on medication because he would know I am in a vulnerable position and not to pursue anything romantically with me. I knew by his body language that he had not met me to talk about the case, it was for something to pursue romantically. I wasn’t interested in that.”

Presently, they got up to go, according to her statement. “We left the bar and outside he said it was nice to meet me but he has to run now. I said goodbye it suited me well. I was trying to get rid of him.”

Some weeks later, she got another call from him. He said he’d finished the court early and would they be able to meet now. She claims that she said she couldn’t, that she was busy. This was the last contact between them.

Her case for a barring order against her husband was due up again. She claims that the judge told her not to tell anybody about their contact, and initially she didn’t tell her solicitor and barrister. At a meeting she asked that they attempt to get a permanent order rather than a temporary one.

“I didn’t tell them that the reason for it was because I didn’t like the judge’s attention towards me and didn’t want to be in front of him in a vulnerable position. I didn’t tell them so they couldn’t understand why I wasn’t happy with the rolling order. I started crying over the protection order and said I was afraid of my husband because I couldn’t say I was afraid of the judge.”

When she appeared before the judge again, her representative asked for a three-month extension on the barring order. Ms A asked to speak and requested a six-month extension. The judge rejected this and made the order for a further three months. That was the last time she says she saw the judge.

The whole experience had upset Ms A and she eventually told her legal representatives. They suggested she contact the president of the judge’s court.

She did this but didn’t receive a reply. She also wrote to the minister for justice and she made a complaint to the gardaí.

After an initial meeting, she gave the investigating guard her mobile phone and screengrabs she had taken of the judge’s contacts. For three months, she claims in a statement to Gsoc, she didn’t hear anything back from the guards.

Then a reporter contacted the garda press office about the matter, and she got a call from the investigating guard soon after.

“He asked me why I had spoken with a journalist and why I hadn’t contacted him,” she told Gsoc.

“I told him that he was supposed to be contacting me and that I thought they had closed my investigation. He told me on the phone that there was nothing in my story to investigate. He said it was a normal situation, boy meets girl. I said to him that this was not the case. I had to keep meeting with this judge because of my situation.”

Later, she was informed there would be no further investigation and no charges would be pending. She was not told whether a file had been sent to the DPP, or whether the judge or other court personnel were interviewed. Her phone was returned.

It is unclear whether the gardaí were in a position to investigate a specific offence but Ms A’s complaint concerns the manner in which the investigation was carried out and the nature of the interaction between herself and the gardaí. Gsoc has now elevated the case to a high priority.

The judge is no longer serving on the bench.

Addressing judicial misconduct

A new judicial council is scheduled to be in place in the first half of next year.

Until that comes to pass, there remains a major lacuna in how to deal with allegations of judicial misconduct.

If a member of the public has a complaint about a judge, the options for redress are limited. The president of the district, circuit and high courts all have narrow powers to deal with an issue arising from a member of their respective courts.

Other than that, the executive can request the chief justice to appoint a judge to inquire into an allegation of a serious allegation of misconduct against a judge.

This route was travelled some 20 years ago in the case of district court judge Donnchadh O’Buchalla. He had been a witness in the murder trial of Catherine Nevin, who was accused of the murder of her husband Tom in 1996. An issue arose as to whether or not he had conducted himself in a manner that brought the court into disrepute.

Following the inquiry, Judge O’Buchalla was cleared of any wrongdoing and continued on the bench until his retirement in 2008.

In the event that any inquiry makes a finding of serious misconduct, the only option is for the Oireachtas to remove the judge from office. This requires a two-thirds majority of the Dáil. As a result, any complaints considered to be less serious than requiring removal can rarely be addressed. To this extent, individual judges are a law onto themselves unless they actually commit an offence.

This scenario ill serves the public, or indeed legal professionals or gardaí who may have a legitimate complaint against a judge. It also means that a judge can be the victim of rampant and unfounded rumours of bad behaviour which have no basis.

A judicial council was first proposed by senior members of the judiciary nearly 20 years ago. The council will provide a forum for complaints to be addressed and sanctions imposed on any judges deemed to have transgressed.

Yet for some reason, the establishment of a council is only now progressing.

Politicians and judges have blamed each other for the failure to provide in law for the council over the last two decades. Now, it would appear that it is finally being addressed with urgency for the completely separate reason that the council will also be charged with establishing a book of quantum for personal injuries, a move that is hoped to tackle the so-called compensation culture.