Appendix 4
Outline of overseas judicial complaint handling and appointments bodies
England
and Wales
1.2
England and Wales have had 3 major bodies established to deal with
aspects of the judiciary including appointments and complaints. They are the
Judicial Appointments Commission, the Office for Judicial Complaints and the
Judicial Appointments and Conduct Ombudsman.
1.3
Interestingly, there also appears to be an established role for the
judiciary to publicly comment on government proposals affecting the judiciary.
These comments are accessible on the Judiciary of England and Wales' website Judicial
views and responses page which notes that 'From time to time, judges will
wish to respond to government proposals on issues which have a direct impact on
the running of the courts'.[1]
Judicial
Appointments Commission
1.4
The overall aim of the Commission is to select and recommend persons for
judicial appointment on merit. With the Lord Chancellor and Lord Chief Justice,
the Commission aims to increase the diversity of the judiciary in courts and
tribunals at all levels, and to ensure the widest possible choice of candidates
and fair and open processes for selection.[2]
1.5
The Commission
is an independent body set up by the Constitutional Reform Act 2005
to select judicial office holders. The Commission selects candidates for
judicial office based on merit, through fair and open competition, from
the widest range of eligible candidates drawn
from a diverse range of backgrounds.
The Commission asserts that it was set up in order to maintain and strengthen
judicial independence by taking responsibility for selecting candidates for
judicial office out of the hands of the Lord Chancellor and making the
appointments process clearer and more accountable.[3]
Office
for Judicial Complaints
1.6
The Office for Judicial Complaints (Complaints Office) supports the Lord
Chancellor and the Lord Chief Justice in their joint responsibility for the
system of judicial complaints and discipline. It aims to ensure that all
judicial disciplinary issues are dealt with consistently, fairly and
efficiently.
1.7
The Complaints Office is an associated office of the Ministry of Justice
(MoJ). Its status, governance and operational objectives are set out in a
Memorandum of Understanding between the Department of Courts Administration,
the Judicial Office for England and Wales and the Complaints Office.[4]
1.8
The Complaints Office will look into any complaint about the personal
conduct of a judge, member of a small tribunal or coroner. Examples of personal
misconduct would be the use of insulting, racist or sexist language.[5]
1.9
While the Complaints Office website claims that judges can be dismissed,
the most senior judges – the Heads of Division, Law Lords, Lords Justices of
Appeal and High Court Judges - can only be removed by The Queen after an
address from both Houses of Parliament, and this has never happened.
[6]
1.10
Other judicial office-holders can be removed by the Lord Chief Justice
for incapacity or misbehaviour. This is very rare, and the case of a full-time
serving judge needing to be removed, has happened just once, in 1983, when a
Circuit Judge was removed from office after pleading guilty to several charges
of smuggling.[7]
1.11
Fee-paid, or part-time, office-holders, who are usually appointed for at
least five years, may not have their contracts renewed on the following grounds:
misbehaviour; incapacity; persistent failure to comply with sitting
requirements (without good reason); failure to comply with training
requirements; sustained failure to observe the standards reasonably expected
from a holder of such office; part of a reduction in numbers because of changes
in operational requirements; and part of a structural change to enable
recruitment of new appointees.[8]
1.12
Advice to the public through the Complaints Office website outlines its
complaint handling process as follows:[9]
-
if
your complaint is for us, we will consider the issues raised and the
quality of the evidence provided. If satisfied that the complaint requires
further investigation, we will then send the judge a copy of your
complaint and ask for his or her comments. We may ask you or others who
may have witnessed the event complained of for further evidence, and may
also listen to the tape recording of the hearing and/or obtain information
from other people who were present;
-
in
some cases it may be necessary to ask a senior judge to carry out an
investigation into what has happened;
-
at all
stages we will keep you fully informed of progress;
-
if the
Lord Chancellor and the Lord Chief Justice uphold your complaint, they
will consider what action, if any, is appropriate. The Lord Chancellor and
the Lord Chief Justice have the power to agree to advise, warn or remove a
judge for misconduct;
-
the
Lord Chancellor and Lord Chief Justice will not normally pay compensation
for losses arising from actions by judges. They may consider making an ex
gratia payment, but only in the most exceptional cases;
-
we aim
to deal with your complaint and provide you with a full response,
including any disciplinary action, which may have been taken, within 3
months. However if a judicial investigation is needed the process may take
several months longer; and
-
in
some cases where the Lord Chancellor and the Lord Chief Justice decide to
take formal disciplinary action against a judicial office holder, the
judicial office holder has a right to request that his or her case be
referred to a 'review body'. Where a case has been referred to a review
body, the Lord Chancellor and the Lord Chief Justice must accept any
findings of fact made by the review body and cannot impose a sanction on
the judicial office holder that is more severe than that recommended by
the review body. Each review body consists of 4 members, 2 judicial office
holders and 2 lay.
Judicial
Appointments and Conduct Ombudsman[10]
1.13
The Judicial Appointments and Conduct Ombudsman investigates the handling
of complaints concerning the judicial appointments process and matters
involving judicial discipline or conduct.
1.14
There are two distinct aspects to his work:
-
To
seek redress in the event of maladministration. 'Maladministration'
includes (among other things) delay, rudeness, bias, faulty procedures,
offering misleading advice, refusal to answer questions and unfair
treatment; and
-
Through
recommendations and constructive feedback, to improve standards and
practices in the authorities or departments concerned.
1.15
The Ombudsman assumed his responsibilities on 3 April 2006 under the
Provisions of the Constitutional Reform Act 2005 and is completely
independent of Government and the judiciary.
1.16
The Ombudsman can:
-
set aside a
decision made by the Office for Judicial Complaints, Tribunal President or
Magistrates' Advisory Committee and direct that they look at a complaint again;
-
recommend
that an investigation or determination should be reviewed by a Review Body;
-
ask the
Office for Judicial Complaints, Tribunal President or Magistrates' Advisory
Committee to write to you and apologise for what went wrong;
-
recommend
that changes are made in the way the Office for Judicial Complaints, tribunal
Presidents or Advisory Committees work in future to prevent the same things
happening again; and/or
-
suggest
payment of compensation for loss which appears to the Ombudsman to have been
suffered as a direct result of the poor handling of your complaint.
1.17
The Ombudsman cannot:
Canada
1.18
At the federal level in Canada there are two key judicial organisations:
the Office of the Commissioner for Federal Judicial Affairs (which oversees
judicial advisory committees) and the Canadian Judicial Council (which has a
mandate to promote judicial efficiency, uniformity, and accountability and that includes a
complaint handling function).
Office
of the Commissioner for Federal Judicial Affairs
1.19
Independent judicial advisory committees constitute the heart of the judicial
appointments process in Canada. The committees are responsible for assessing
the qualifications for appointment of the lawyers who apply. There is at least
one committee in each province and territory. Each committee consists of eight
members representing the bench, the bar, the law enforcement community and the
general public, and 1 ex-officio non-voting member: either the Commissioner for
Federal Judicial Affairs or the Executive Director, Judicial Appointments.[12]
1.20
The role of the Office is to safeguard the independence of the judiciary
and put federally appointed judges at arm's length from the Department of
Justice. Its mandate extends to promoting better administration of justice and
providing support for the federal judiciary.[13]
1.21
The Supreme Court consists of the Chief Justice of Canada and eight
Judges appointed by the Governor in Council from among superior court judges or
from among barristers of at least ten years' standing at the Bar of a province
or territory. A Judge holds office during good behaviour, until he or she
retires or attains the age of 75 years, but is removable for incapacity or
misconduct in office before that time by the Governor General on address of the
Senate and House of Commons. Of the nine judges making up the Supreme Court,
the Supreme Court Act requires that
three be appointed from Quebec. Traditionally, the federal government appoints
three Judges from Ontario, two from the West, and one from Atlantic Canada.[14]
Canadian
Judicial Council
1.22
Parliament created the Canadian Judicial Council in 1971. The objectives
of the Council, as mandated by the Judges Act, are to promote
efficiency, uniformity, and accountability, and to improve the quality of
judicial service in all superior courts of Canada.[15]
The Council has authority over the work of more than 1,070 federally appointed
judges.
1.23
The Council's main purpose is to set policies and provide tools that
help the judicial system remain efficient, uniform, and accountable. The
Council’s powers are set out in Part II of the Judges Act.
1.24
The Council asserts that Canadians 'need judges who are
independent and able to give judgments in court without fear of retaliation or
punishment.' To help achieve this goal, the Canadian Judicial Council was
granted power under the Judges Act to investigate complaints made by
members of the public and the Attorney General about the conduct (as opposed to
the decisions) of federally appointed judges. After its investigation of a
complaint, the Council can make recommendations, including removing a judge
from office. If necessary, an Inquiry Committee may be appointed to hold a
public hearing, after which the matter goes on for discussion by the full
Council. After considering the report of an Inquiry Committee, the Council may
recommend to Parliament (through the Minister of Justice) that the judge be
removed from office. The Council's only power is to recommend to Parliament
that a judge be removed from office. Where appropriate, the Council may express
concerns about a judge's conduct where the matter is not serious enough to
recommend that the judge be removed.[16]
1.25
According to the Council's website, since
its inception in 1971, the Council has referred eight complaints to an Inquiry
Committee for formal investigation. The Council asserts that judicial
independence is central to its processes and it does not believe that its role
undermines the objective of judicial independence.[17]
1.26
As part of its functions, the Council has issued a publication outlining
Ethical Principles for Judges. It includes guidance under the headings
judicial independence, integrity, diligence, equality and impartiality.[18]
1.27
The Council undertakes its work through a committee system. Most
committees conduct research and deliver tools for enhancing the quality,
uniformity, and efficiency of the Canadian judicial system. They often work in
consultation with experts and partners in the legal, private, and media
sectors. The result of their research is presented to the Council at its two
annual meetings for consideration and approval, and often takes the form of
studies, guidelines, model policy, and other key documents that are distributed
to the wider justice community and, in most cases, to the general public.[19]
1.28
The structure of the Council’s committees are set out in a chart:[20]
United States of America
1.29
Supreme Court justices, court of appeals judges, and district court
judges are nominated by the President and confirmed by the United States
Senate, as stated in the Constitution. The names of potential nominees often
are recommended by senators or sometimes members of the House who are of the
President's political party. The Senate Judiciary Committee typically conducts
confirmation hearings for each nominee. Article III of the Constitution states
that these judicial officers are appointed for a life term. The federal
Judiciary, the Judicial Conference of the United States, and the Administrative
Office of the U.S. Courts play no role in the nomination and confirmation
process.[21]
1.30
The Constitution sets forth no specific requirements for qualifications
for becoming a judge. However, members of Congress, who typically recommend
potential nominees, and the Department of Justice, which reviews nominees'
qualifications, have developed their own informal criteria.
1.31
The complaint process (created by Congress) is not intended to
address complaints related to the merits of a case or a court's decision. Any
person alleging that a judge of the United States has engaged in conduct
prejudicial to the effective and expeditious administration of the business of
the courts, or that such officer cannot discharge all the duties of the office
because of physical or mental disability, may file a complaint with the clerk
of the court of appeals for that circuit or applicable national court. The
statute governing this complaint mechanism is set out at Title 28, U.S. Code,
Section 351(a).
New Zealand[22]
1.32
New Zealand has a Judicial Conduct Commissioner, but does not have a
judicial appointments body. Appointments to most of the judicial positions are
made by the Governor-General on the recommendation of the Attorney-General.
Present exceptions are Environment Court Judges and Community Magistrates.
Until amendments to legislation are made, these appointments will continue to
be made on the recommendation of the Minister of Justice. In making
appointments to the Environment Court, the Minister of Justice must consult
with the Minister for the Environment and the Minister of Māori Affairs.
Appointments to the Māori Land Court and the Māori Appellate Court
are made by the Governor-General on the recommendation of the Minister of
Māori Affairs.
1.33
In the case of appointments to the Court of Appeal and the High Court
(Judges and Masters), the administrative process is carried out under the
direction of the Solicitor-General. For appointments to the District Court,
Family Court, Environment Court and Employment Court, the process is carried
out under the direction of the Secretary for Justice.
1.34
With the objective of ensuring greater transparency in the process,
advertising for expressions of interest in judicial positions is carried out at
all levels except the Court of Appeal.
The appointment process for New
Zealand High Court Judges
1.35
Section 6 of the Judicature Act 1908 specifies that no person
shall be appointed a High Court Judge unless he or she has held a practising
certificate as a barrister or solicitor for at least seven years.
1.36
The New Zealand Ministry of Justice states that the constitutional
importance of the judicial role, and the fact that Judges have to make
decisions which significantly affect the liberties and rights of citizens, make
it vital that those who become judges are suitable to hold that office. The
suitability of prospective candidates is assessed by reference to a range of
clearly defined, transparent and publicly announced criteria:[23]
-
Legal Ability: Legal
ability includes a sound knowledge of the law and experience of its
application. Requisite applied experience is often derived from practice
of law before the courts which is experience of direct relevance to being
a Judge. However, application of legal knowledge in other branches of
legal practice, such as in an academic environment, public service or as a
member of a legal tribunal may all qualify. At appellate level, legal
ability includes the capacity to discern general principles of law and in doing
so to weigh competing policies and values. More important than where legal
knowledge and experience in application is derived from, is the overall
excellence of a person as a lawyer demonstrated in a relevant legal
occupation.
-
Qualities of character: Personal
qualities of character include personal honesty and integrity, open
mindedness and impartiality, courtesy, patience and social sensitivity,
good judgement and common sense, the ability to work hard, to listen and
concentrate, collegiality, breadth of vision, independence, and acceptance
of public scrutiny.
-
Personal technical skills: There are
certain personal skills that are important, including skills of effective
oral communication with lay people as well as lawyers. The ability to
absorb and analyse complex and competing factual and legal material is
necessary. Mental agility, administrative and organisational skills are
valuable as is the capacity to be forceful when necessary and to maintain
charge and control of a court.
-
Reflection
of society:
This is the quality of being a person who is aware of, and sensitive to,
the diversity of modern New Zealand society. It is very important that the
judiciary comprise those with experience of the community of which the
court is part and who clearly demonstrate their social awareness.
1.37
The
steps in the appointment process for New Zealand High Court Judges are as
follows:[24]
-
Expressions of interest
are called for by public advertisement. While each vacancy is not advertised,
general advertisements for High Court Judges appear from time to time.
-
Prospective candidates
respond to the request for expressions of interest. Alternatively, as a result
of the consultation process described below, prospective candidates may be
nominated, invited to express their interest and to enter the process. All
prospective candidates are provided with an Expression of Interest form for
completion.
-
The names of those who
meet the statutory criterion for appointment are held on a confidential
register maintained by the Attorney-General's Appointments Unit (the
Appointments Unit). Persons expressing interest are advised when their names
have been registered.
-
As and when required, the
Appointments Unit uses the register to identify all those who have indicated an
interest in appointment to the High Court. The Solicitor-General reviews the
names and consults the Attorney-General, the President of the Court of Appeal,
the Minister of Justice, the Minister of Women's Affairs, the Minister of
Māori Affairs, the Chief Justice and the Secretary for Justice. The
purpose of this consultation is to ascertain whether additional names should be
considered and added to the list.
-
The Solicitor-General
seeks comments about those on the list from a range of key people and
organisations. The consultation process is described below.
-
The Solicitor-General
asks the Chief Justice and the President of the Court of Appeal to give all
prospective candidates a rating. The outcome of this process is an indication
of those considered suitable for immediate appointment, those possibly suitable
in two to three years, and those in neither category (the longlist).
-
The Solicitor-General
presents the longlist to the Attorney-General. The Solicitor-General's advice
includes the results of his or her consultation process.
-
The Attorney-General,
after such consultation as he or she believes necessary, decides who should be
on the shortlist for appointment and who heads it. The shortlist may contain 12
to 15 names. The Attorney-General may decide to seek an interview with, or
arrange for an interview by the Solicitor-General of, a person interested in
appointment to the High Court.
-
The Solicitor-General
undertakes checks on the personal reputation of those on the shortlist. The
Solicitor-General also asks prospective candidates to complete a questionnaire
intended to confirm that there are no matters in their background of a sort
that might cause difficulties after appointment. The response to the
questionnaire is signed, along with an undertaking that, if appointed, the
prospective candidate will not resume practice before the courts on retirement
or earlier termination of his or her appointment.
-
Once the
Attorney-General is satisfied as to the suitability of the preferred candidate,
and his or her willingness to accept the appointment the Attorney-General
mentions the appointment in Cabinet. Finally the Attorney tenders formal advice
to the Governor-General to make the appointment.
1.38
A range of groups and people are contacted at various stages in the
appointment process. The Attorney-General regards the knowledge, experience and
judgement of the professional legal community as a very good source of informed
opinion on the relative merits of prospective candidates.
1.39
At the nomination stage, the list of parties who may be contacted
includes the Chief Justice, the President of the Court of Appeal, the Secretary
for Justice, the President of the Law Commission, the New Zealand Bar
Association, the President of the New Zealand Law Society and other organisations
or groups representative of lawyers who the Attorney-General believes can
contribute names of suitable persons. Such groups may include the Women's
Consultative Group of the New Zealand Law Society, the District Law Societies,
the New Zealand Bar Association, the Criminal Bar Association, the Māori
Law Society and women lawyers' associations. Nominations may also be sought
from the Minister of Justice, the Chair of the Justice and Law Reform Select
Committee and the Opposition Spokespersons for the Attorney-General portfolio.
1.40
In seeking comment on prospective candidates, the Solicitor-General will
consult the Chief Justice, the President of the Court of Appeal, the New
Zealand Law Society, the New Zealand Bar Association and others as appropriate.
Office of the Judicial Conduct
Commissioner[25]
1.41
The Office of the Judicial Conduct Commissioner was established
in August 2005 to deal with complaints about the conduct of Judges. An independent
Judicial Commissioner receives complaints, conducts preliminary investigations
and decides what further actions, if any, are to be taken. The Judicial Conduct
Commissioner:
-
receives
written complaints;
-
conducts a
preliminary examination of the complaint; and
-
takes one of
the following steps:
1.42
The Commissioner may recommend to the Attorney-General that a Judicial
Conduct Panel be appointed to inquire further into the complaint. The
Commissioner will recommend a Panel be appointed if the conduct complained of
may warrant consideration of removal of the Judge. The Panel may recommend that
the Judge be removed from office.
1.43
The Commissioner has to write to the complainant and the Judge with
reasons for the recommendation that a Panel be convened.
1.44
The Attorney-General then consults the Chief Justice about choosing the
three members of the Panel, which must include at least one Judge or retired
Judge, and one lay person. The Panel may also include a senior barrister or
solicitor.
1.45
The job of the Panel is to inquire further into the conduct of the
Judge. The Panel has the same powers as a Commission of Inquiry and is required
to act according to the principles of natural justice.
1.46
The Panel will typically hold hearings in public, although part or all
of a hearing may be held in private to protect the privacy of the complainant,
or Judge, or if it is in the public interest to do so. The Panel also has the
power to restrict publication of any documents that are part of the hearing, or
any information about the hearing.
1.47
The Attorney-General will appoint a special counsel to present the case
against the Judge. The Judge being complained about may appear at the hearing
and be represented by a lawyer. The Panel may also give permission for other
people to appear at the hearing and be represented by a lawyer.
1.48
Once the hearing is over, the Panel reports to the Attorney-General on
the Panel's:
1.49
Should the Panel recommend removal of the Judge, the Attorney-General
must decide whether to agree or disagree with the recommendation. If the
Attorney-General agrees that the Judge should be removed, then one of two
processes occurs, depending on the type of Judge being complained about:
-
For Judges of the Supreme Court, Court of Appeal, High Court, and
Employment Court, the Attorney-General must address Parliament to propose that
it recommend to the Governor-General that the Judge is removed. If Parliament
makes that recommendation the Governor-General will then remove the Judge from
office.
-
For Associate Judges and all other Judges, the Attorney-General
advises the Governor-General who can then formally remove the Judge from
office.[26]
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