Citation, commencement and application

1. —(1) These Regulations may be cited as the Judicial Discipline (Prescribed Procedures) (Amendment) Regulations 2008 and come into force on 28th August 2008.

(2) These Regulations apply to any complaint, including a complaint made before 28th August 2008 which has not been withdrawn, dismissed or determined.

Amendments to the Judicial Discipline (Prescribed Procedures) Regulations 2006

2.The Judicial Discipline (Prescribed Procedures) Regulations 2006( 2 ) are amended as follows.

3. In regulation 2(2) (interpretation), after “In these regulations,” insert “unless the contrary intention appears”.

4. For regulation 3(4) (Office for Judicial Complaints), substitute—

“ (4) Any reply by a complainant or the subject of the disciplinary proceedings to a request made by the Office for Judicial Complaints pursuant to enquiries made under paragraph (3) must be made within twenty business days of that request. ” .

5. In regulation 9 (complaints made to advisory committees)—

(a) after paragraph (1) insert—

“ (1A) Where an advisory committee receives no complaint under these Regulations or under rules made under paragraph (2), but it receives information from any source which suggests to it that disciplinary proceedings might be justified, it may treat that information as if it were a complaint made under these Regulations, or under rules made under paragraph (2). ” ; and

(b) in paragraph (4) after “where the complaint” insert “concerns misconduct and”.

6. In regulation 10 (complaints made in relation to tribunals)—

(a) after paragraph 3 insert—

“ (3A) Where a President receives no complaint under these Regulations or under rules made under paragraph (2), but instead receives information from any source which suggests that disciplinary proceedings might be justified, that President may treat that information as if it were a complaint made under these Regulations, or under rules made under paragraph (2). ” ;

(b) in paragraph (5) for “found a case to be substantiated” substitute “upheld a case”; and

(c) in paragraph (9) after “where the complaint” insert “concerns misconduct and”.

7. In regulation 13(2) (referral of other information for consideration), for “may” substitute “must”.

8. In regulation 14 (consideration of a complaint by the Office for Judicial Complaints)—

(a) in paragraph (1) omit from “Unless” until “investigated,”; and

(b) after paragraph (2) insert—

“ (3) Where an account of facts given by a complainant differs from an account given by the judicial office holder about whom the complaint is made, the Office for Judicial Complaints must consult any independent evidence which exists which may verify the facts in dispute before it dismisses a complaint under paragraph (1), unless to do so would be disproportionate in all the circumstances. ” .

9. In regulation 15 (further consideration of a complaint liable to be dismissed under regulation 14), after “where the complaint” insert “concerns misconduct and”.

10. In regulation 17 (nomination of nominated judge)—

(a) in paragraph (1) for “The nominated judge” substitute “A nominated judge”;

(b) in paragraph (2) after “cases” insert “, or to deal with different aspects of the same case”; and

(c) in paragraph (3) for “the nominated judge” substitute “a nominated judge”.

11. In regulation 18 (functions of nominated judge)—

(a) for “The nominated judge” substitute “A nominated judge”;

(b) at the end of paragraph (c) delete “and”;

(c) at the end of paragraph (d) substitute the full stop with “; and”; and

(d) after paragraph (d) insert—

“ (e) whether the request made under regulation 29(2) by the subject of the disciplinary proceedings is totally without merit. ” .

12. For regulation 22 (functions of investigating judge), substitute—

“ Functions of investigating judge

22. —(1) The investigating judge must advise the Lord Chancellor and the Lord Chief Justice—

(a) as to the facts of a case;

(b) whether the case is substantiated or not;

(c) whether disciplinary action should be taken; and if so what disciplinary action should be taken; and

(d) as to any other matters in the terms of reference.

(2) Where it falls to the investigating judge to establish any fact, any question as to whether that fact is established must be decided on the balance of probabilities. ” .

13. For regulation 23 (procedure of investigation by investigating judge) and regulation 24 (evidence and representations), substitute—

“ Procedure of investigation by investigating judge

23. —(1) The investigating judge must—

(a) decide how to conduct the investigation;

(b) notify the subject of the disciplinary proceedings and any complainant of the proposals for the conduct of the investigation, and whether oral evidence will be taken;

(c) invite the subject of the disciplinary proceedings to give evidence and make representations about the procedure adopted and the case; and

(d) record any representations on the proposals which those persons may make.

(2) The investigating judge may invite the complainant or any person who may be able to assist the investigation to give evidence about the case.

(3) Any evidence or representations from the complainant or the subject of the disciplinary proceedings must be provided to the investigating judge within ten business days of an invitation under paragraphs (1) or (2).

(4) The investigating judge may take oral evidence if it is considered necessary to do so.

(5) The investigating judge must arrange for any evidence given orally to be recorded in a transcript or a tape recording.

(6) The investigating judge must disclose any evidence obtained under paragraph (2) to the subject of the disciplinary proceedings and must invite that person to make representations on the evidence.

(7) The subject of the disciplinary proceedings must make any representations under paragraph (6) within ten business days of the invitation under that paragraph.

(8) Where the investigating judge considers that it is necessary to disclose evidence obtained during the course of an investigation to any person other than the subject of the disciplinary proceedings, the investigating judge must first invite—

(a) the person who provided the evidence, and

(b) the subject of the disciplinary proceedings

to make representations about the proposed disclosure.

(9) The person who provided the evidence, and the subject of the disciplinary proceedings, must make any representations under paragraph (8) within ten business days of the invitation. ” .

14. In regulation 25(6) (report of investigating judge)—

(a) for “Representations” substitute “Any representations”; and

(b) for “(3) or (4)” substitute “(2) or (3)”.

15. In regulation 27(2) (notification of proposed disciplinary action and final decision), for “twenty” substitute “ten”.

16. In regulation 29 (convening a review body)—

(a) for paragraph (1)(d) substitute—

“ (d) the subject of the disciplinary proceedings requests the Lord Chancellor and the Lord Chief Justice to refer the case to a review body under paragraph (2) unless—

(i) the request to refer is totally without merit; or

(ii) before a review body has convened, the subject of the disciplinary proceedings withdraws the request under paragraph (5)(a),

in which case the Lord Chancellor and the Lord Chief Justice shall not convene a review body unless they consider there are good reasons for doing so. ” ;

(b) after paragraph (2) insert—

“ (2A) (a) Where the subject of the disciplinary proceedings makes a request under paragraph (2), the Lord Chancellor and the Lord Chief Justice must in the first instance refer that request to a nominated judge to consider whether the request is totally without merit.

(b) The nominated judge invited to consider the request must not be a nominated judge who has previously considered any aspect of the case. ” ;

(c) in paragraph (4)—

(i) at the end of sub-paragraph (a) delete “, and” and substitute a semicolon;

(ii) at the end of sub-paragraph (b) substitute the full stop with “and why; and”; and

(iii) after sub-paragraph (b) insert—

“ (c) indicate whether he wishes to make oral representations to the review body. ” ; and

(d) after paragraph (4) insert—

“ (5) (a) Subject to sub-paragraph (b), the subject of the disciplinary proceedings may withdraw a request under paragraph (2) at any time.

(b) If the request made under paragraph (2) is withdrawn after a review body has convened, the subject of the disciplinary proceedings must give reasons for withdrawing the request.

(c) The review body must discontinue its review if the request made under paragraph (2) has been withdrawn, unless it considers there are good reasons to continue with a review. ” .

17. In regulation 30 (functions of a review body), after paragraph (2) insert—

“ (2A) Where a review body reviews any finding of fact under paragraph (1)(a), any question as to whether, upon review, that fact is established must be decided on the balance of probabilities. ” .

18. For regulations 31 (review of documents), 32 (recommendations without a full review) and 33 (further procedure of review body), substitute—

“ Review of documents and procedure of review body

31. —(1) A review body shall have access to the documents which the Office for Judicial Complaints, an advisory committee, a President, a nominated judge, the investigating judge, the Lord Chancellor and the Lord Chief Justice have used for the purpose of exercising their functions under these Regulations or under rules made under these Regulations.

(2) The review body must initially review the case on the basis of those documents and of any statement under regulation 29(4)(b) which the judicial office holder has provided.

(3) After its initial review under paragraph (2), the review body must—

(a) determine the procedure it will follow; and

(b) inform the subject of the disciplinary proceedings of the proposed procedure.

(4) A review body must take oral evidence from the subject of the disciplinary proceedings if so requested, unless it considers it unnecessary to do so.

(5) A review body may take evidence, including oral evidence, from any other person. ” .

19. In regulation 34 (draft report of review body)—

(a) in paragraph (2) after “person” insert “who may be adversely affected by its contents”; and

(b) for paragraph (4) substitute—

“ (4) Any representations by the subject of the disciplinary proceedings, or the complainant if the draft report has been disclosed to that person, must be made within 10 business days of the invitation. ” .

20. In regulation 36(1) (deferral of consideration of a case)—

(a) for “the Lord Chancellor and the Lord Chief Justice” substitute “the Office for Judicial Complaints”; and

(b) where it appears in the original paragraph, for “the Office for Judicial Complaints” substitute “it”.