Yesterday’s decision by the Lord Chancellor and the Lord Chief Justice to refer Mr Justice Peter Smith to the Office of Judicial Complaints (OJC) for further investigation has sparked a thousand cries of: “And what happens next?”
You would be surprised how many eminent QCs have no idea. That’s because this situation is unprecedented. “I think you need an Act of Parliament to remove a judge, don’t you?” asked one QC quizzically.
Let’s just be clear that we don’t believe that any judges need to be removed or that there is any suggestion of wrongdoing. But many people are asking what is the process for disciplining a judge should discipline be needed.
The Lord Chancellor and Lord Chief Justice have referred the case to the OJC for a preliminary investigation under new rules introduced last year.
If this preliminary inquiry decides there is a case to answer then the Lord Chancellor and the Lord Chief Justice appoint a more senior judge (to the one being scrutinised), to conduct an investigation.
After that, the pair has the power to advise the judge on his (or her) conduct, warn them or remove the judge for misconduct.
This is where it gets slightly confusing, but fundamentally the Act of Settlement 1701 kicks in, which says that a judge can be removed “only for serious misconduct and/or by a resolution of both Houses of Parliament”. Oh, and the Supreme Court Act 1981 is also needed for the removal of a High Court judge.
But that’s a long way off. The only time that we reckon that has happened was in 1983, when Judge Bruce Campbell was dismissed for smuggling substantial amounts of cigarettes and whisky into the country in his private yacht. And he was a circuit judge. A High Court judge has never been dismissed.
We’ll keep you posted as the story develops.