But all is not doom and gloom for errant judicial office holders. According to a statement from the Judicial Conduct Investigations Office (JCIO) instead of being kicked out for actions which might until now have been deemed incompatible for a judge or magistrate with expulsion being the result it seems that a suspended sentence might now be considered the appropriate sanction.
“Following advice from the Ministry of Justice (MoJ) legal team, we are informing all parties involved with the judicial conduct process of a change in advice regarding the use of suspension as a disciplinary sanction.
The Lord Chancellor’s (LC) and Lord Chief Justice’s (LCJ) disciplinary powers are set out in Section 108 of the Constitutional Reform Act 2005. Previously, we have operated on the basis that the LCJ can suspend a judicial office holder as a sanction, with the agreement of the LC, as an option for any action that constitutes serious misconduct, but may not warrant removal from judicial office. This was on the basis of reading 108 5 c) of the Act as a stand alone criteria, giving the LC and LCJ the ability to suspend a judicial office holder for the purpose of maintaining confidence in the judiciary.
However, in light of advice given on an ongoing case, the MoJ legal team have looked at this provision and have raised a concern about how suspension is currently being applied as a sanction. Their interpretation of the disciplinary powers set out in Section 108, in accordance with the parliamentary counsel’s explanatory notes, is that the suspension can only be issued in a specific set of circumstances. They have explained that S 108 5) needs to be read as a cumulative set of circumstances and 108 5 c) cannot be relied upon separately to issue suspension as a sanction in any circumstances outside those listed in this section. The explanatory notes for this section state:
Section 108: Disciplinary Powers
This advice has no impact on the process for interim suspension pending the outcome of an investigation.
- Section 108 will form the basis of a disciplinary system in relation to senior judicial office holders in England and Wales and the holders of offices listed in Schedule 14. In accordance with the section the Lord Chancellor may only exercise his statutory powers to remove judicial office holders in accordance with prescribed procedures (which are defined by section 122 as procedures prescribed by the Lord Chief Justice with the agreement of the Lord Chancellor in regulations made under section 115 or rules made under section 117). Following the formal disciplinary process the Lord Chief Justice may formally advise or formally warn or reprimand, a judicial office holder, but only in accordance with prescribed procedures and with the agreement of the Lord Chancellor. As provided in subsection (3) this does not affect the ability of the Lord Chief Justice to speak informally to any judge about any matter of concern, or to issue general advice or warnings to the judiciary.
- The Lord Chief Justice may also, with the agreement of the Lord Chancellor, suspend a judicial office holder from exercising the functions of his office if the office holder is subject to criminal proceedings; is serving a sentence for a criminal offence; is subject to disciplinary proceedings following a conviction; or if, following a criminal conviction, it has been decided not to remove the judicial office holder from office, but the Lord Chief Justice and Lord Chancellor agree that a period of suspension is required in order to maintain confidence in the judiciary. Senior judges may be suspended during proceedings for an Address in Parliament to remove them from office. Office holders who are listed in Schedule 14 may be suspended during criminal or disciplinary investigations, prior to any conviction.
The MoJ legal will continue looking at this matter and advise us of any implications this may have in going forward. I will be in touch as soon as we have any more advice.
End of JCIO Message
Perhaps we shall soon have appointed judicial licensing officers to oversee their clients during their period of rehabilitation.