Lindsay judgment highlights need for judicial council

As the saga regarding the establishment of a judicial council enters its second decade, Ireland is no closer to a resolution.

In a landmark decision, the Law Society of Ireland has recently published a judgment on District Court Judge John Lindsay. The society found Lindsay guilty of misconduct as a solicitor on 12 different counts in two separate rulings.

The society's rulings were made in June 2009 but were published in the most recent issue of the Law Society Gazette. Lindsay was fined €10,000, censured on both inquiries and ordered to pay the legal costs of the Law Society. 

The initial inquiry was into Lindsay's delay in discharging the administration of an estate, but it was his failure to respond to the society regarding the issue that formed the majority of the charges against him. His lack of co-operation and failure to attend multiple meetings on the issue ultimately led the society to issue such stringent judgments.

The case has been ongoing for several years. The Law Society was initially made aware of Lindsay's actions in 2003. However, in 2007, with investigations into Lindsay's actions still ongoing, Lindsay was appointed to the Judicial Appointments Advisory Board (JAAB) by Michael McDowell, just nine days before the 2007 general election. 

This appointment took place despite the fact that the JAAB were required to inquire into Lindsay's background through the Law Society, and almost certainly would have been aware of the ongoing investigation against him.

Lindsay's misconduct, although serious in itself, raises a much more serious issue; the failure of the government to establish a long promised judicial council to monitor standards among our judiciary. As it stands, Lindsay will continue to sit on the District Court, with the Courts Service unable to act and the Department of Justice apparently unwilling to do so.

The proposal for a judicial council was initially brought to the then Justice minister, John O'Donoghue, by the then Chief Justice Ronan Keane in 2000 and a draft bill first appeared in 2004. Six years on, that bill has still not been implemented. Currently the Department of Justice, under Dermot Ahern, has stated a new draft bill to implement the judicial council has been sent to the judiciary for review.

However, the judiciary has shown little desire for the council thus far. The judiciary met in April 2009 to discuss the plan but there has been seemingly no movement on the issue since. Indeed, plans to found a judicial council were said to be in an "advanced stage" prior to this meeting, in December 2008. Despite this, Ireland is no closer to establishing the long awaited body.

The fundamental issue the judiciary has with the establishment of such a council, as highlighted by Justice Richard Johnson in the Irish Times, is that it would interfere with the independence of the judiciary. 

However, most western democracies have long functioned with judicial councils without impacting the independence of the judiciary. Indeed, according to Fine Gael's Charlie Flanagan, Ireland's lack of a judicial council is "almost unique among western democracies". 

Indeed, the belief is that a judicial council would be of huge benefit to our judicial system as it would do more than simply monitor our judges. With a dedicated code of practice and code of ethics, a judicial council could lead to more consistent judgments and more coherent sentencing policy in our courts.

Speaking to the Irish Times in February 2009, the former president of the European Parliament Pat Cox said: “The absence of a judicial council means that no systematic framework exists in Ireland, save for their own professional discretion, for elucidating clear sentencing principles and for ensuring that all judges have regular and required professional training and refresher courses."

However, the years continue to roll by and still no judicial council has been established. As the saga enters its second decade, the Department of Justice is delivering the same lines it has been delivering for many years. The independent Deputy Finian McGrath raised the issue in the Dáil on the 23 February, the latest deputy to do so.

The Minister of Justice's response? "I refer the Deputy to my response to Question No. 10 of 10 December 2009." His response then? That the Department of Justice would publish new proposals for a judicial council "shortly". 

In the grand scheme of this issue, perhaps two and a half months is just a drop in the ocean. Unfortunately, as the government and the judiciary continues to stall, Ireland's justice system continues to suffer.