CHAPTER EIGHT: CONDUCT
Introduction
The proposals in this chapter were about establishing a comprehensive scheme for dealing with complaints about judicial conduct that fell short of grounds that would require an investigation into fitness for office. The chapter proposed that the Lord President, in his new role as head of the judiciary, should have responsibility for issues of judicial conduct. Comments were invited on various aspects of the proposed scheme.
Overview
A number of respondents, including the judges of the Court of Session, considered that the current arrangements to deal with conduct issues were satisfactory and they were not aware of criticisms of the existing arrangements. The Lord President commented that " there seems no justification whatsoever for creating an elaborate disciplinary structure where there is no problem to be solved". However, while the judges did not perceive a need to make changes, they were willing to comment on the proposals. The Sheriffs' Association were concerned that some statements in the consultation paper could create a false impression that there was a serious problem with judicial complaints that were not being dealt with. They went on to say that some sheriffs were content with the present arrangements but the Association's general position was that procedures for discipline would benefit from clarification and the Association should be involved in developing those procedures.
Generally, the Lord President was seen as the ultimate discipline authority and there was support for giving him power to delegate functions, but there were mixed views on the involvement of sheriffs principal. The Lord President was seen as the appropriate authority to make rules to govern the conduct scheme.
There was general agreement that no attempt should be made to define what might constitute inappropriate conduct. While the need for some process to consider a grievance about the handling of a complaint was generally accepted, views on who should conduct that review varied. There was almost unanimous support for providing a means for reviewing the merits of a complaint and the penalty and for giving the Lord President a power to suspend a judicial office holder, although some wished to see the circumstances when suspension could occur being limited
Questions
This chapter was split into four sections and covered 13 questions.
Defining "inappropriate judicial conduct"
Question 49 - Do you agree that inappropriate judicial conduct should not be defined in statute, other than to include a provision that makes it clear that failure to perform work associated with the discharge of judicial functions is included?
Question 50 - If not, how would you define "inappropriate judicial conduct"?
There was a fair degree of support from the 35 (58%) respondents to the proposal that inappropriate judicial conduct should not be defined in statute. Twenty four (40%) respondents agreed with the proposal while 5 disagreed and a further 6 gave no express view. However, many of those respondents who agreed with the first part of the proposal did not agree with the proposal for a statutory provision in respect of failure to perform work.
The judges of the Court of Session agreed that inappropriate judicial conduct should not be defined in statute, but did not agree with the proposed statutory provision about failure to perform work. They believed that it should be left to senior judges to determine what was inappropriate conduct in a particular case.
The Sheriffs' Association shared the view of the judges that neither inappropriate judicial conduct nor failure to perform work should be defined in statute. The Sheriffs Principal agreed that inappropriate judicial conduct should not be defined in statute. They also suggested that inappropriate judicial conduct would be better described as " conduct inappropriate for a member of the judiciary". Several sheriffs responding individually agreed that inappropriate judicial conduct should not be defined in statute, and one proposed that any statutory reference to failure to perform should be qualified by words such as "without reasonable excuse".
The legal bodies all agreed that the definition of inappropriate judicial conduct should not be defined in statute, and the Faculty of Advocates also expressed concern about the second part of the proposal.
The Royal Society of Edinburgh shared the view of other respondents that inappropriate judicial conduct should not be defined in statute and that failure to perform work should not be singled out in statute. There were a few other comments from public bodies including the Scottish Legal Aid Board whose concern was to " ensure that legal aid expenditure was not wasted through the inappropriate conduct of individual members of the judiciary which increases cost or delays the progress of court business".
Respondents who disagreed with the proposal (including 2 sheriffs, the Association of Chief Police Officers in Scotland, a public body and an individual respondent) took the view that the definition of inappropriate judicial conduct should be specified in statute.
The Sheriffs' Association, together with the Sheriffs Principal, the Scottish Consumer Council, Scottish Women's Aid, the Association of Chief Police Officers in Scotland, CMJA and several other respondents proposed a Code of Conduct or some kind of written guidance or standards and there was general agreement that this be developed by the judges of the Court of Session. The Scottish Consumer Council suggested that the criteria for appointment set out by the Judicial Appointments Board could form the basis of such a code. Some respondents provided possible definitions of "inappropriate judicial conduct". One sheriff suggested that it would be better to ask "what is appropriate judicial conduct?" while another said that unfitness rather than inappropriate judicial conduct should be the criterion.
Disciplinary powers
Question 51 - Do you agree that a sheriff principal should have responsibility for dealing with issues of conduct concerning sheriffs, including floating sheriffs and part-time sheriffs, arising within his or her sheriffdom?
There was some support expressed for this proposal among the 37 (62%) respondents who dealt with this question with 21 (35%) respondents in agreement, 9 (15%) disagreeing and 7 offering no express view.
The Sheriffs' Association reported that sheriffs varied in their response on this issue. Many sheriffs saw benefits in sheriffs principal taking responsibility for dealing with conduct issues at the local level. However, other sheriffs would prefer sheriffs principal to continue to give informal advice but not to be involved in formal disciplinary procedures.
The Sheriffs Principal generally supported the proposal. However, they were concerned that the relationship of trust between a sheriff principal and the sheriffs in the sheriffdom could be undermined if the sheriff principal had to deal with complaint procedures where the facts were disputed and such cases should be investigated by another sheriff principal or another body.
Some sheriffs (5), responding individually, agreed with the proposal. However, a further 7 sheriffs disagreed with the proposal for a variety of reasons including that sheriffs principal should not be involved in disciplining the sheriffs they worked with as this could affect a positive personal relationship between them and the welfare and pastoral role carried out by sheriffs principal. Another comment was the scope for variation in the treatment of conduct issues among the 6 sheriffs principal. Some sheriffs suggested that the sheriffs principal could deal with complaints at the outset on an informal basis but, where issues could not be resolved informally, the Lord President should take responsibility. One sheriff said that the power to discipline sheriffs in s12 of the Sheriffs Courts (Scotland) Act 1971 was sufficient and if it needed to be made ECHR compliant this could be done by requiring the Lord President and Lord Justice Clerk to appoint an Inner House judge to investigate and report to them. Several sheriffs also cited the Latimer House Guidelines which stated that the chief judge should administer all disciplinary sanctions in private.
The CMJA did not agree with the proposal and expressed similar views to many of the sheriffs above. They considered that sheriffs principal should administer informal advice but not formal discipline which should be the responsibility of the Lord President. They added that, if sheriffs principal were left to administer formal discipline, inconsistencies could arise between the sheriffs principal.
The judges of the Court of Session agreed with the proposal in the context of the Lord President being the head of a unified judiciary and delegating his disciplinary powers to sheriffs principal as appropriate although they did not think that elaborate conduct procedures were necessary. All of the other judges who responded agreed with the proposal, with Lord Cullen adding that a central record of conduct issues arising in all sheriffdoms should be maintained.
The legal bodies agreed with the proposal provided that overall responsibility for conduct issues belonged to the Lord President. The Faculty of Advocates commented that Sheriffs Principal should exercise this responsibility in consultation with the Lord President. The other 4 public bodies that responded were content with the proposal.
Question 52 - Do you agree responsibility for all disciplinary procedures concerning the judiciary, short of removal, should lie with the Lord President, who would have power to delegate exercise of those powers to such judges as he considered appropriate?
There was a strong level of support from the 35 (58%) respondents who dealt with this proposal with 30 (50%) agreeing with the proposal while 5 disagreed.
The Sheriffs Principal agreed with the proposal. The Sheriffs' Association were also content provided that delegation was not to the person who had brought the complaint. All but two of the sheriffs responding individually agreed with the proposal and four of them stated that delegation should not be to anyone below the rank of Inner House judge.
The judges of the Court of Session agreed with the proposal, as did most of the other judge respondents.
The legal bodies were generally content with the proposals. The WS Society said that delegation should be exercised through the Scottish Court Service Judge (they proposed that a Senator be appointed to assist the Lord President who would also be responsible for the administration of the court service). The SSC saidthat delegation to a Sheriff Principal might be appropriate in some circumstances, with any review being by the Lord President. The Law Society recommended that the Lord President's powers should be delegated to the Lord Justice Clerk and the sheriffs principal who in turn would appoint a panel to investigate the facts and make a recommendation. The decision would be for the Lord Justice Clerk or the sheriff principal, with any appeal being made to the Lord President.
Half of the public bodies responded to this question and all agreed with the proposal. An individual respondent agreed with the proposal and said that a male and female judge should be involved.
A number of respondents disagreed with the proposal seeing no need to change the present system.
Question 53 - Do you agree that there should be a mechanism for dealing with any grievance about the way in which an issue of conduct had been handled, but without reviewing the merits of the decision reached?
There was rather limited support among the 34 (57%) respondents to this proposal with 17 (28%) in agreement while 4 disagreed, 13 (22%) commented and the remaining 26 did not respond.
The Sheriffs' Association considered that, if the Lord President had overall responsibility for dealing with complaints, he or she should be trusted to carry out those duties either directly or by delegation. Lord Hope of Craighead said he would be "reluctant to see a formal procedure enshrined in statute" and would prefer the system to be under the general supervision and control of the Lord President while some judges considered there should be no review other than a formal appeal.
The judges of the Court of Session together with the Lord President, and some sheriffs, disagreed with the proposal saying that they were not persuaded that this was necessary.
The Sheriffs Principal agreed with the proposal as did several individual sheriffs with one adding that the complainer and the judge should have equal access to the complaints mechanism.
The legal bodies all agreed with the proposal. The SSC added that there should be a procedure for bringing such complaints. The public bodies who responded were generally content as were the other respondents. Scottish Woman's Aid commented that the distinction between the process and the merits of a case was not always clear and the former Scottish Legal Services Ombudsman said that public confidence in the system would be enhanced if there was provision for an independent reviewer.
Question 54 - If so, should this review responsibility lie with (a) the Lord President, (b) an ombudsman created for this function, (c) a lay observer, or (d) some other arrangement for independent review?
Eighteen (30%) respondents provided a view in relation to this proposal. A number of these respondents considered that the review responsibility should be exercised by the Lord President, including the Sheriffs Principal, Lord Hope of Craighead, the Law Society, the SSC and the Royal Society of Edinburgh and 2 sheriffs responding individually. Lord Cullen of Whitekirk and the Faculty of Advocates proposed that review could be carried out by the Lord President, together with a lay observer. The WS Society and Professor Bonnington suggested that review could be carried out by a retired judge.
The Association of Chief Policy Officers in Scotland, together with a sheriff, supported review by a lay observer. Scottish Women's Aid said that review must be by a third party. The former Scottish Legal Services Ombudsman proposed the ombudsman or lay observer. Another respondent said that review should be by a panel which would include a lay observer.
Procedures
Question 55 - Do you agree that the judge with responsibility for dealing with an issue of conduct should have a discretion to reject a complaint where it is unsupported by evidence or is manifestly vexatious or trivial?
Support for this proposal was fairly high among the 30 (50%) respondents who dealt with this question, with 26 (43%) in agreement, 2 disagreeing, 2 commenting and the remaining 30 (50%) not responding.
The Sheriffs' Association reported unanimous agreement with this proposal together with the sheriffs who responded individually. The Sheriffs Principal and the judges of the Court of Session were also content, as were the other judges who responded.
The legal bodies were also content, with the WS Society commenting that only those with a direct interest in a case should be entitled to make a complaint unless the matter complained of related to moral conduct. A variety of views were expressed among the 4 public bodies that responded. The Royal Society of Edinburgh agreed with the proposal. The Scottish Consumer Council said that written record should be kept of all complaints and the decisions and such records made available as appropriate. The former Scottish Legal Services Ombudsman said that any complaint that was rejected as being unsupported by evidence or manifestly vexatious or trivial should be capable of being reviewed by an independent review, ideally an Ombudsman, who had power to make recommendations. Scottish Women's Aid disagreed with the proposal as did an individual respondent who considered that all complaints should be investigated.
Question 56 - Should a procedure for investigating issues of conduct (a) be set out in statute, (b) be set out in regulations made under statutory authority, (c) be determined by the Lord President or (d) left to the discretion of the judge with responsibility for dealing with the issue?
Thirty-three respondents dealt with this question and all of the proposed options were favoured by some.
The respondents who agreed that a procedure for investigating issues of conduct should be set out in statute or in regulations under statutory authority included the Scottish Consumer Council who also said the procedure should be set out either in statute or regulations and the procedure should include non-lawyer representation. The former Scottish Legal Services Ombudsman said the basic principles should be set out in statute, leaving the details to regulations; Scottish Women's Aid who commented that standard procedure must be " set out in regulations accessible to the public and cannot simply be left to judicial discretion"; the Association of Chief Police Officers also proposed regulations under statutory authority; and one of the public bodies proposed that the conduct scheme was set out in subordinate legislation and could thus be amended or adapted over time. An academic respondent proposed that the broad investigatory powers be set out in statute, leaving discretion to the judge dealing with the case.
Other respondents considered that the procedure should be left to the Lord President. They included the Faculty of Advocates, the WS Society, the Sheriffs Principal who added that the procedure might vary depending on the nature of the conduct complained of. The Law Society, the SSC and a sheriff said the procedure for investigating conduct should be determined by the Lord President but there should also be discretion for the judge with responsibility for dealing with the issue.
The judges of the Court of Session said the procedure should be left to the judge carrying out the investigation. Lord Cullen of Whitekirk and Judge David Edward QC shared this view as did 2 sheriffs responding individually. The Sheriffs' Association also considered that the procedure should be left to the investigating judge, although the general procedure would be laid down by the Lord President. The Sheriffs' Association went on to say that there should be an exception to the proposed general prohibition on publicity in cases where a judge was cleared following a disciplinary investigation.
Question 57 - If some specification is favoured, what matters should be included?
There were just seven comments proposing some specification. Most considered that the detail should be left to the Lord President.
The judges of the Court of Session suggested there might be benefit in broad statutory provisions covering procedural issues, including handling such issues without undue delay, ensuring an appropriate degree of formality, and providing certainty about the powers and duties of those involved in the procedure. Among the areas which most respondents anticipated would be covered were; how a complaint should be made, the arrangements for sifting complaints, how they would be investigated and how they might be disposed of and what review on appeal is available.
Question 58 - Should a procedure exist for reviewing the merits of a complaint and any penalty imposed?
Question 59 - If so, what review arrangements would you consider adequate?
There was fairly strong support for this proposal among the 29 (48%) respondents who provided an express view, with 26 (43%) in agreement, 2 disagreeing, 1 commenting and 31 (52%) not responding.
The Sheriffs' Association said that a clear majority of sheriffs were in favour of a procedure for reviewing the merits of a complaint and any penalty imposed, including review of minor matters. The majority of sheriffs who responded individually agreed with the proposal with one sheriff dissenting and suggesting judicial review was sufficient. The Sheriffs Principal agreed with the proposal, but considered that a review procedure was not necessary for minor issues where the outcome amounted to no more than " formal advice".
The Sheriffs' Association proposed appeal to an independent judicial body set up by the Lord President while one sheriff proposed that review should be by a more senior judge i.e. judge in the House of Lords.
The judges of the Court of Session agreed that "it would be fair that the judge disciplined as a result of any procedure should be able to have the decision in question reviewed". They agreed that any review should be limited to reconsideration by two judges and did not favour any lay involvement. Judge David Edward QC indicated that "where a complaint had been found to be justified and in particular where a sanction had been imposed, a procedure that allowed for no appeal or review would probably not be compatible with the Human Rights Act..."
The legal bodies agreed with the proposal and the Faculty of Advocates were content for the Lord President to institute review arrangements. The public bodies who responded agreed with the proposal, including the former Legal Service Ombudsman who said that the procedure should include making a recommendation that the complaint be investigated further or the decision reconsidered. Scottish Women's Aid agreed suggesting review by 2 judges for less serious complaints, but said review by 4 judges for more serious complaints. The Royal Society of Edinburgh proposed that appeal should be to the full Judges' Council who could set up an appeals committee.
Professor Bonnington proposed an ombudsman who should be a recently retired senior judge, and not a lay person.
Both Lord Cullen of Whitehead and Lord Hope of Craighead did not consider a separate review procedure to be necessary. Lord Hope observed that judicial review would be available as a safeguard.
Temporary Suspension from Office
Question 60 - Should provision be made for the suspension of a judicial office holder other than in the context of a formal investigation into fitness?
Question 61 - If so, do you agree with the proposed grounds on which suspension could be ordered, and that power to suspend should lie with the Lord President?
Support for the first proposal above was high among the 31 (52%) respondents who dealt with this question. Thirty (50%) respondents agreed and 1 did not agree. The response to the second proposal above was very similar with 29 (48%) respondents in agreement.
The judges of the Court of Session agreed with the proposal that provision should be made for suspension of a judicial office holder, as did the other judges who responded, the Sheriffs' Association, the Sheriffs Principal, all but one of the sheriffs who responded individually, and an academic. The four public bodies who responded and the legal bodies were also content with what was proposed.
The Sheriffs Principal and the Sheriffs' Association were broadly content with the proposed grounds for suspension. A few individual sheriffs responded and agreed with the proposed grounds with one adding that such a power to suspend could also be exercised in other situations and that such a power of suspension should also be available to sheriffs principal. One sheriff did not agree with the proposal for suspension other than in the context of a formal investigation into fitness.
The judges of the Court of Session agreed with the proposed grounds for suspension but considered that the power to suspend should be for the Lord President, in consultation with the Lord Justice Clerk, but without any need to consult Scottish Ministers or, in a case where criminal investigations or proceedings were ongoing, the Lord Advocate. They further considered that suspension should continue until removed by the Lord President and the Lord Justice Clerk and that the Lord Advocate should be obliged to inform the Lord President of any criminal proceedings against a judge. The Lord President said the power of suspension should belong solely with the Lord President and proposed that grounds for suspension should be set out in procedural rules by the Court of Session by act of sederunt. The other judges who responded were content with the proposal.
The legal bodies were content with the proposed grounds for suspension but the Law Society and SSC said that suspension should be available only in the context of a criminal investigation or where criminal charges were pending and the power of suspension should be delegated to the Lord Justice Clerk which would allow the Lord President to fulfil the review function. A few public bodies responded and were generally content. Scottish Women's Aid said that powers should lie with the Lord President but only after consulting Scottish Ministers and, where appropriate, the Lord Advocate..