Procedural notes in respect of complaints of Personal Misconduct against members of the Judiciary of the Isle of Man

Introduction

  1. These procedural notes in respect of complaints of personal misconduct against members of the judiciary of the Isle of Man are intended to assist in outlining the mechanism for dealing with complaints under the Code of Conduct for Members of the Judiciary of the Isle of Man (the “Code of Conduct”).
     
  2. The mechanism for dealing with complaints has an important role to play in maintaining and enhancing high standards of judicial conduct and in ensuring that any shortcomings are addressed. It is equally important that unmeritorious complaints are dismissed at the earliest available opportunity and serving members of the judiciary are not distracted from their onerous judicial duties by unmeritorious complaints.
     
  3. These procedural notes explain how to complain and what will happen after a complaint has been lodged to ensure that it is dealt with fairly and as quickly as possible. The length of time it takes to determine a complaint will depend on the nature of the complaint, the complexity of the issues involved and the circumstances of the matter.
     
  4. The complaints procedure must be fair to the person complaining and fair to the judge who is the subject of the complaint. The process is intended to help maintain and enhance public confidence in the judiciary, and to protect the judiciary’s independence, impartiality and integrity.
     
  5. Judges have a duty to decide cases in accordance with the law. At least one side is likely to be disappointed or dissatisfied by a judicial decision. Since a judicial decision is made by a judge in the course of independent adjudication a complaint against the decision cannot be entertained.
     
  6. The commentary on the Bangalore Principles of Judicial Conduct makes it clear that not every transgression of principles for judicial conduct will result in disciplinary action. Not every failure of a judge to conform to the principles will amount to misconduct. Whether disciplinary action is appropriate or not will depend on various factors including the seriousness of the transgression, whether or not there is a pattern of improper activity, and the effect of the improper activity on others and on the judicial system as a whole.
     
  7. The complaints procedure cannot be used in cases where a litigant thinks the decision in the case was incorrect or unfair or the judge did not handle the case properly or made a mistake. If a litigant does not agree with a decision made by a judge or considers that the judge has made a mistake the proper course of action to consider is an appeal or where appropriate a doleance claim.
     
  8. The principle of judicial independence is fundamental in our justice system. It involves the independence of judges to adjudicate according to law without any interference. It is important that political or other inappropriate pressures do not influence judges when they are making decisions in individual cases otherwise the integrity of the justice system could be undermined. In general judges are accountable through the public nature of their work, the requirement that they give reasons for their decisions and the appeal process.
     
  9. It is however important to have a mechanism for handling complaints against a judge’s personal conduct (as opposed to a judge’s judicial decision or case management). Such a mechanism whilst respecting judicial independence is designed to enable a complaint against a judge’s personal conduct to be fairly and properly dealt with.
     
  10. In the first instance complaints in respect of a judge’s personal conduct which the complainant asserts fall within the Code of Conduct (see paragraph 16 below for examples of personal conduct) should be directed to the Judicial Conduct Office, General Registry, Deemsters Walk, Buck’s Road, Douglas, Isle of Man, IM1 3AR. Upon receipt of a complaint the Judicial Conduct Officer within the Judicial Conduct Office will consider whether the complaint has been lodged within the specified time limit and whether it discloses a prima facie complaint of personal misconduct on the part of the judge.
     
  11. If the complaint has not been lodged within the specified time limit or if the complaint does not disclose a prima facie complaint of personal misconduct on the part of the judge within the Code of Conduct the Judicial Conduct Officer must dismiss the complaint.
     
  12. If the complaint has been lodged within the specified time period and if it does disclose a prima facie complaint of personal misconduct on the part of the judge within the Code of Conduct then the Judicial Conduct Officer will refer the complaint (if it relates to a judge other than the First Deemster) to the First Deemster for further consideration. If such complaint relates to the First Deemster then the Judicial Conduct Officer will refer it to the Judge of Appeal for further consideration. The First Deemster and the Judge of Appeal may appoint such other persons to assist them in their consideration, investigation and determination of the complaint as they see fit.
     
  13. If the First Deemster or Judge of Appeal considers it inappropriate for them to consider the complaint they may nominate another person to consider the complaint. That nominated person may also appoint such other persons as he or she sees fit to assist in the consideration, investigation and determination of the complaint.


    Complaints against serving judges

  14. A judge for the purposes of these notes includes: 
    • First Deemster
    • Second Deemster
    • Deemster
    • Judge of Appeal
    • Deemsters who are part of the panel of part-time Deemsters
    • High Bailiff
    • Deputy High Bailiff
    • Part-time Deputy High Bailiffs
    • Judicial Officers
    • Part-time Judicial Officers
    • Justices of the Peace
       
  15. The Code of Conduct shall in addition to applying to full-time members of the judiciary of the Isle of Man also apply to Deemsters who are part of the panel of part-time Deemsters, part-time Deputy High Bailiffs and Justices of the Peace and other part-time Judicial Officers with the following modifications:
    Paragraph 8 of the Code of Conduct shall not be construed so as to prohibit part-time members of the judiciary from engaging in any profession, business or trade or holding any office or post provided, in appropriate cases, they recuse from dealing with cases if such matters would conflict with their judicial obligations or compromise or prejudice their independence or the performance of their duties or functions in respect of those particular cases.
    Paragraph 10 of the Code of Conduct shall read:

    Part-time members of the judiciary shall not engage in any activity which calls into question either (1) their willingness and ability to administer justice according to law; or (2) their general suitability to hold the judicial office they hold.
  16. Complaints in respect of serving judges may only be made about a judge’s personal conduct whether inside or outside the court. It is impossible to give a comprehensive definition of the type of personal misconduct which may form the grounds of a complaint. Examples of possible personal misconduct which may form the grounds of a complaint might be the use of racist or sexist language in court or inappropriate behaviour outside court such as a judge using the judge’s judicial title for personal advantage or to gain preferential treatment.
     
  17. A judge’s role in court is to make independent decisions in cases and their management. There will on occasion be robust exchanges in court. Court users should understand that on occasions a judge may have to be firm, direct, assertive and authoritative in the judge’s management of the case and may have to make comments and decisions which litigants and other court users do not like or agree with. This behaviour on the part of a judge would not normally be grounds for a justifiable complaint.
     
  18. The fact that a complainant disagrees with a judge’s decision or case management or if the complainant thinks that a judge has made a legal error are not grounds for a justifiable complaint. If a litigant is unhappy with this sort of decision the litigant may be able to appeal or where appropriate pursue a doleance claim. If a litigant is considering appealing a judicial decision or pursuing a doleance claim in respect of such decision, it is recommended that the litigant obtain legal advice to discuss whether the litigant has a right of appeal or a right to pursue a doleance claim and what legal issues are involved, what will be expected of the litigant and the level of cost involved. A litigant can obtain such advice from an advocate. Contact details of advocates can be obtained from the Isle of Man Law Society. Advocates may also advise on the availability of legal aid in respect of such matters.
     
  19. Any complaint about a judicial decision or case management or the reasoning and comments underpinning and relevant to such matters cannot be considered pursuant to the procedure set out in these notes. The usual way to challenge this type of decision is to appeal or where appropriate to lodge a doleance claim. Judicial independence is a fundamental principle of our legal system. The decisions made by a judge in a case can only be challenged through the appropriate procedures provided by law. The Judicial Conduct Officer cannot and should not interfere with the administration of justice and judicial decisions and case management by judges.
     
  20. If a complaint concerns the alleged criminal conduct of a judge it may only be able to be considered and determined once the appropriate authorities have dealt with the matter. Investigations in respect of allegations of criminal conduct are primarily a matter for the police and the appropriate authorities.


    How to complain 

  21. If having carefully considered the matter and taken any appropriate advice a complainant decides to make a complaint against a judge the complaint should be made in writing (preferably typed), signed by the complainant and delivered to the Judicial Conduct Officer, Judicial Conduct Office, General Registry, Deemsters Walk, Buck’s Road, Douglas, Isle of Man, IM1 3AR. A form entitled “Complaint about judicial conduct” is available and this form should be used by those wishing to make a complaint.

  22. The complaint should be set out clearly and succinctly. The complainant must however provide the relevant background and particulars. The complainant’s signed complaint must clearly state and provide:
     
    • the complainant’s full name, address, telephone number and where available email address;
    • the name of the judge against whom the complaint is made;
    • where appropriate, the court, the case reference number and the date of the hearing and whether legal proceedings in connection with the case have or have not concluded;
    • the grounds of the complaint and the specific details supporting such complaint including the specific provision in the Code of Conduct which it is alleged has been contravened;
    • a full description of the judge’s conduct the complainant wishes to complain about giving all relevant particulars and evidence in support including where appropriate a transcript of the relevant proceedings;
    • other information and copies of documents relevant to the complaint.The complaint should be set out clearly and succinctly. The complainant must however provide the relevant background and particulars. The complainant’s signed complaint must clearly state and provide:
        
  23. The complainant must include copies of all the documents upon which the complainant is relying to support the complaint and copies of all the documents which are relevant to the complaint even if they are adverse to the complaint and the complainant.


    The time limit for making complaints

  24. The complaint should be made as soon as possible and, in any event, no later than 3 months after the incident that the complainant wishes to complain about (the “specified time limit”). If there are on-going proceedings the complaint may not be considered until the proceedings are finally determined but the complainant should still make the complaint within the specified time limit. The specified time limit for making a complaint will only be extended in exceptional circumstances. If the complainant is seeking an extension the complainant should, at the same time as making the complaint, write to the Judicial Conduct Officer stating the reason for the delay in making the complaint and requesting an extension of time and specifying the grounds upon which such extension is sought. In respect of any application for an extension of time within which to lodge a complaint the complainant will be notified of the decision of the Judicial Conduct Officer and the reasons for the decision.


    Repeated complaints

  25. If a complaint has been made and dismissed or withdrawn the complainant may not in the future raise the same or similar complaint against the same judge based on substantially the same or similar grounds of the earlier complaint unless the complainant produces material new evidence which could not have been produced with reasonable diligence in support of the earlier complaint.


    Withdrawal of complaints

  26. The complainant can apply to withdraw the complaint by writing to the Judicial Conduct Office requesting that the complaint be marked withdrawn.
     
  27. A complaint must be treated as withdrawn if the complainant indicates that the complainant does not want the complaint or any further information which the complainant has provided to be disclosed to the judge complained against.
     
  28. If a complaint is withdrawn or treated as withdrawn at any time but the First Deemster or Judge of Appeal considers that the matters which it raises are sufficiently serious for further consideration to be necessary the issues raised in the complaint may be considered further.


    Referral of other information for consideration

  29. Where no complaint has been made but the First Deemster receives information which suggests to the First Deemster that disciplinary proceedings might be justified the First Deemster may refer that information to the Judicial Conduct Office for the matter to be investigated further and dealt with by way of the complaints procedure.


    What happens after the complaint has been lodged?
  30. The complaint will be acknowledged and a copy of the complaint may be forwarded to the judge complained about.
     
  31. A copy of the complaint will be forwarded to the Chief Registrar for confirmation as to whether the complaint arises in respect of legal proceedings which are in existence or whether there are ongoing legal proceedings involving the judge complained against and the complainant which are unrelated to the complaint. The Judicial Conduct Officer can then consider further whether the matter is still subject to any relevant ongoing legal proceedings and whether it would be appropriate to continue considering the matter or whether consideration should be deferred until the legal proceedings have been finally determined.
     
  32. The Judicial Conduct Officer shall consider the complaint and come to a decision as to whether to dismiss the complaint or, where the Judicial Conduct Officer decides that the complaint has been filed within the specified time limit and raises a prima facie complaint of personal misconduct on the part of the judge within the Code of Conduct, to refer the complaint to the First Deemster or the Judge of Appeal as appropriate for further consideration.


    Dismissal of Complaints

  33. The Judicial Conduct Officer must dismiss the complaint or part of the complaint if it falls into any of the following categories:
    • it has not been filed within the specified time limit and an extension of time has not been granted
    • it does not adequately particularise the matter complained of
    • it raises the same or a similar complaint as has already been dismissed or withdrawn and does not present any material new evidence which could not have been produced with reasonable diligence in support of the previous complaint
    • it does not raise a prima facie complaint of personal misconduct on the part of the judge
    • it is about a judicial decision or judicial case management and raises no question of personal misconduct on the part of the judge
    • it is about the professional conduct in a non-judicial capacity of a judge or about the private life of a judge which could not reasonably be considered to affect the judge’s suitability to hold judicial office
    • it is vexatious, untrue, mistaken, misconceived, not made in good faith, trivial or otherwise without substance or even if substantiated, would not require disciplinary action to be taken
    • it is otherwise appropriate to dismiss itThe Judicial Conduct Officer must dismiss the complaint or part of the complaint if it falls into any of the following categories: 
       
  34. If the Judicial Conduct Officer is minded to dismiss the complaint because it does not adequately particularise the matter complained of, the complainant may be provided with an opportunity to provide better particulars and supporting evidence of the complaint within a specified period of time.
     
  35. Where a complaint is dismissed the complainant will be notified of the dismissal and the reasons for the dismissal of the complaint.
     
  36. If the complaint is dismissed or withdrawn but the Judicial Conduct Officer is of the view that it raises a matter which should nevertheless be brought to the attention of the judge complained against and/or First Deemster and/or the Judge of Appeal for their information then the Judicial Conduct Officer shall refer the matter to them for their information.


    Review of decisions of the Judicial Conduct Officer

  37. If the complainant is dissatisfied with a decision of the Judicial Conduct Officer, the complainant may refer the matter, within 10 working days from the date of the decision, to the Chief Registrar, Chief Registrar’s Office, General Registry, Deemsters Walk, Buck’s Road, Douglas, Isle of Man, IM1 3AR for a review of such decision. Having undertaken such review the Chief Registrar may affirm, reverse or vary the decision of the Judicial Conduct Officer.


    Communications subsequent to a determination of a complaint

  38. If a complaint has been determined and the complainant notified of such determination no further communications on the complaint may be considered.


    Complaints disclosing prima facie case of personal misconduct

  39. If the Judicial Conduct Officer decides that the complaint or part of the complaint against a judge other than the First Deemster raises a prima facie complaint of personal misconduct on the part of the judge within the Code of Conduct and has been made within the specified time limit or any extension thereof then the Judicial Conduct Officer shall refer the complaint or the relevant part of the complaint to the First Deemster for further consideration. The First Deemster may take such action as he sees fit to assist in the further consideration, investigation and determination of the complaint.
     
  40. If the Judicial Conduct Officer decides that a complaint or part of a complaint against the First Deemster raises a prima facie complaint of personal misconduct on the part of the First Deemster within the Code of Conduct and has been made within the specified time limit or any extension thereof then the Judicial Conduct Officer shall refer the complaint or the relevant part of the complaint to the Judge of Appeal for further consideration. The Judge of Appeal may take such action as he sees fit to assist in the further consideration, investigation and determination of the complaint.
     
  41. The First Deemster and the Judge of Appeal may appoint such other persons to assist them in their consideration, investigation and determination of the complaint as they see fit.
     
  42. If the First Deemster and Judge of Appeal consider it inappropriate for them to deal with the matter they may nominate another person (the “nominated person”) to consider, investigate and determine the complaint. The nominated person may take such action as that person sees fit to assist in the further consideration, investigation and determination of the complaint.
     
  43. The further steps to be taken by the First Deemster, the Judge of Appeal or the nominated person as appropriate may include sending a copy of the complaint to the judge who has been complained about and giving that judge a reasonable time to respond in writing and an opportunity to be heard in response to the complaint. The further steps may also include the obtaining of information and advice from others and appointing persons to investigate the complaint further and report back with advice and recommendations.
     
  44. If the complaint is of a serious nature with a reasonable prospect of being substantiated such that a judge’s fitness for office may seriously be called into question, consideration may be given as to whether a tribunal of inquiry to investigate the judge’s fitness for judicial office should be convened. The judge may be suspended from carrying out the functions of a judge pending the determination of such a complaint. Whatever procedure is adopted to consider, investigate and determine the complaint it must be fair to the complainant and fair to the judge complained against.
     
  45. If a tribunal of inquiry is established the tribunal will decide how best to go about its task but the tribunal will inform both the complainant and the judge the subject of the complaint as to the procedures that will be followed and the complainant and the judge complained against will both be given a fair opportunity to put their respective cases before the tribunal of inquiry.


    Powers exercisable by the First Deemster, the Judge of Appeal or nominated person

  46. In respect of a complaint the First Deemster, the Judge of Appeal or the nominated person shall have the power to take such action as they see fit including:
     
    • dismissing the complaint and taking no further action
    • upholding the complaint but taking no further action
    • upholding the complaint and issuing a written warning to the judge
    • upholding the complaint and issuing a reprimand to the judge
    • upholding the complaint and arranging for words of advice to be given to the judge
    • upholding the complaint and recommending that a tribunal of inquiry be convened to consider the judge’s fitness for office
    • upholding the complaint and recommending that the judge be removed from office on the grounds of misbehaviour or inability to perform the functions of the judge’s office


    Removal of First Deemster, Second Deemster or Judge of Appeal 

  47. The First Deemster, the Second Deemster and the Judge of Appeal, who are appointed by Her Majesty the Queen under section 3A of the High Court Act 1991, may only be removed from office by Her Majesty on the ground of misbehaviour or inability to perform the function of their offices.


    Removal of other Deemsters, High Bailiff, Deputy High Bailiff, Judicial Officers or Justices of the Peace 

  48. A Deemster appointed by His Excellency the Lieutenant Governor on the recommendation of the First Deemster under section 3B of the High Court Act 1991 or a High Bailiff or Deputy High Bailiff appointed by His Excellency the Lieutenant Governor under section 1 of the Summary Jurisdiction Act 1989 or other Judicial Officer appointed by His Excellency the Lieutenant Governor on the recommendation of the First Deemster under section 3C of the High Court Act 1991 or a Justice of the Peace appointed by His Excellency the Lieutenant Governor under section 1 of the Justices Act 1983 may be removed from office by His Excellency the Lieutenant Governor with the concurrence of the First Deemster on the ground of misbehaviour or inability to perform the function of their offices.


    Appeals against decisions upholding complaints of personal misconduct and recommending or specifying removal 

  49. In respect of decisions upholding complaints of personal misconduct against the First Deemster, Second Deemster, and Judge of Appeal and recommending or specifying removal there shall be a right of appeal by such judges against such decisions to the Judicial Committee of the Privy Council.
     
  50. In respect of decisions upholding complaints of personal misconduct against judges other than the First Deemster, Second Deemster, and Judge of Appeal and recommending or specifying removal there shall be a right of appeal by such judges against such decisions to an appeal tribunal to be convened by His Excellency the Lieutenant Governor and to be constituted by such person or persons as may be nominated by His Excellency the Lieutenant Governor with the concurrence of the First Deemster.


    Review and amendment of procedural notes 

  51. These procedural notes will be kept under review from time to time and may be amended in the future.

Issued by the Judicial Conduct Office

October 2012

Additional documents

Judicial Complaint form

Decisions

Page last updated on 31 July 2019