The right to appeal exists for those dissatisfied with a judicial decision, but it is also possible for individual litigants to complain about the personal conduct of a judge. Where the Court of Appeal criticises a trial judge, the judgment is always sent to the judge concerned. Where there is any reason for concern about the conduct of the judge it is sent to another, more senior judge; in the case of High Court Judges the head of that judge’s Division, and in the case of circuit judges to the Presiding Judge of that circuit. From time to time, if the Court of Appeal raises particular concerns, judges may be given advice and guidance, or training, or different workloads or types of workload by the responsible senior judiciary. In cases where the judge’s conduct is seriously impugned, the relevant Head of Division or Presiding Judge will refer the matter to the Lord Chief Justice and Lord Chancellor. This is another way in which individual judges are accountable.
The Lord Chief Justice and the Lord Chancellor are jointly responsible for considering and determining complaints about the personal conduct of all judges in England and Wales (and some judges who sit in Tribunals in Scotland and Northern Ireland). The Office for Judicial Complaints (OJC) – now the Judicial Complaints Investigations Office – was set up on the 3rd April 2006, to handle these complaints and provide advice and assistance to the Lord Chief Justice and Lord Chancellor in their performance of this joint responsibility.
The Lord Chief Justice and the Lord Chancellor take complaints about the judiciary very seriously, and consider it important to maintain public confidence by ensuring such complaints are dealt with by an independent body.
The Lord Chief Justice has the right to give a judge formal advice, a formal warning or a reprimand, or to suspend them from office in certain circumstances. The vital principle is, however, that none of these actions can be taken unless the Lord Chancellor and the Lord Chief Justice agree on it. For a government minister to be involved in this way in judicial discipline may appear to strain the principle of judicial independence. However, the procedure helps to dispel any suspicion that judges would not wish to take action against a fellow judge, and also provides a safeguard. Equally, making the responsibility for discipline a joint responsibility of the Lord Chief Justice and the Lord Chancellor ensures that the suspicion cannot arise that judges can be disciplined on political grounds: a further safeguard of judicial independence and the rule of law. The fact that both have a role ensures that the independence of an individual judge is not improperly infringed, either by the executive, or internally by another more senior member of the judiciary.
All complaints are made, or referred, to the Judicial Complaints Investigations Office, which then assesses whether the complaint falls within the system. More than half do not because they are complaints about judicial decisions rather than judicial conduct.
Complaints about judicial conduct are considered by a nominated judge, who will either make a recommendation straight away to the Lord Chief Justice and the Lord Chancellor, or refer the case to an investigating judge. Ultimately a recommendation will be made to the Lord Chief Justice and Lord Chancellor, who will have to decide what action, if any, to take. The judge who is the subject of the complaint has a right to make submissions at every stage and, if they are not content with the decision, can refer the case to a Review Body.
Complaints against magistrates, of whom there are about 30,000, follow a different course as they are considered by Advisory Committees of magistrates, which recommend the appropriate action to the Lord Chief Justice and the Lord Chancellor.
The Judicial Appointments and Conduct Ombudsman investigates the handling of complaints about the judicial conduct process. The Ombudsman can only look at whether or not the relevant first tier body investigated a complaint about judicial conduct properly of if there was any maladministration in the process. However he does not act in an appeal capacity and cannot review or consider the original complaint about a judge’s conduct.