Sweeping misconduct away

Judges to have their public record wiped clean under new plans

Judges sanctioned for the least serious forms of misconduct will have their public record wiped clean after as little as two years under proposals published yesterday on behalf of the lord chancellor and the lord chief justice.

To be fair, this would be an improvement on the current arrangements for England and Wales, under which disciplinary statements announcing sanctions other than removal from office vanish from the Judicial Conduct Investigations Office (JCIO) website after just 12 months. Announcements that a judicial office-holder has been dismissed are normally deleted after five years.

But the current system, which was introduced in 2012, is impossible to justify. Disciplinary finding are not like spent convictions that don’t generally have to be mentioned when you apply for a new job. There are no restrictions on reporting past misconduct findings and there is nothing to stop anyone retaining an archive of deleted JCIO announcements. Purging them just makes it harder for journalists and others to check whether a member of the judiciary has been previously been disciplined.

What’s now proposed in a consultation paper on judicial discipline is that the length of time a statement remains on the public website should depend on the seriousness of the sanction. The expiry dates would be:

  • Notice of misconduct with formal advice: two years

  • Notice of misconduct with formal warning: four years

  • Removal from office for failure to meet sitting requirements: five years

  • Notice of misconduct with reprimand: six years

  • Notice of misconduct with period of suspension1: eight years

  • Removal from office, other than for failure to meet sitting requirements: no expiry

The consultation paper was written by a small working group chaired by an appeal judge.2 In the group’s view, “it must be right that an individual who remains in office after being sanctioned for misconduct can expect the matter to leave the public domain after a time”. No justification is offered for this bare assertion.

The reform would also be counter-productive. There is no suggestion that, under the new proposals, a notice of misconduct would lapse or expire after the period stated. Simply making an announcement harder to find offers no protection to the office-holder and increases the chances that the sanction will be inaccurately reported.

In a curious way, those responsible for the consultation paper seem to have grasped this point. For this is what they say in their very next recommendation:

Proposal 37: Statements which have been deleted following the expiration of their publication period should be available from the JCIO on request.

We believe that it should be possible for anyone who is interested in the outcome of a disciplinary case to receive a copy of a deleted statement from the JCIO. While we envisage that such requests will be rare, we believe that providing access to this information is in line with the aim to promote transparency.

How would that work? Suppose I remember in a few months’ time that a High Court judge received formal advice this year for using his mobile phone while driving. By the time I check the website, his disciplinary statement has disappeared. Will I have to tell the JCIO the judge’s name before they send me the deleted statement? Could I just say I want to know about that judge who picked up six points and a fine? Or can I send in the names of more than a hundred serving High Court judges and ask the JCIO if any of them have got form?

If the judiciary is serious about promoting transparency and deterring misconduct, it should leave all disciplinary notices on the website indefinitely — and provide an index. If it believes that some misconduct notices should expire after a specified period, it should say so.

Bad publicity?

In October 2017, I wrote this:

On the last two days of this month, an unlisted tribunal is planning to sit at an undisclosed location. Its four unnamed members include a Court of Appeal judge, a High Court judge (in each case, either serving or former) and two non-lawyers. The panel will consider allegations that have not been published and make findings of fact that will not be revealed.

The only thing we know for sure is the name of the individual whose conduct this disciplinary panel is investigating. He is the senior judge of the High Court Chancery Division, Sir Peter Winston Smith.

Smith resigned at the eleventh hour and the hearing never took place. No details about the proceedings have ever been disclosed. But why was the whole process so secretive? Surely, a hearing of this importance should have been in public, like disciplinary hearings involving other professionals?

No, says the working group:

After careful consideration, the group concluded that, while public hearings could help to promote transparency, the arguments against holding disciplinary panel hearings in public outweigh any potential benefits.

It gives a number of reasons, most of which boil down to the damage that publicity would do to the judiciary. As a concession, it recommends that disciplinary statements, published after the event, should be more detailed (but “not be excessive”).

All findings of misconduct are damaging to the judiciary. But so is secrecy. Most of the working party’s proposals are unexceptionable and moves to clarify complainants’ understanding of misconduct would be a distinct improvement. But the process will have to be a great deal more transparent if judges are to persuade the public that they are not looking after their own.

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1

A new sanction that could be used in a case of gross misconduct that, but for exceptional mitigating circumstances, would normally result in dismissal. It could also be used instead of a second reprimand. Any period of suspension following a criminal conviction or a finding of misconduct would normally be without pay.

2

Comments can are submitted until 7 February 2022.