Factual and Procedural Background
The Appellant, a salaried District Judge since 2018, applied in 2021 for appointment as a Circuit Judge in both crime and civil jurisdictions through the Judicial Appointments Commission's (JAC) recruitment exercise. The Appellant had previously made a formal complaint of bullying against a senior judge, which was not pursued due to the judge's retirement. The JAC conducted multiple interviews and consulted statutory consultees pursuant to Regulation 30 of the Judicial Appointment Regulations 2013. Although initially deemed selectable by the Selection Day Panels, the Selection and Character Committee (SCC) ultimately decided the Appellant was not presently selectable due to concerns regarding the competency "Working and Communication with Others," regrading her overall band from selectable to non-selectable.
The Appellant sought clarification on the reasons for non-selection and subsequently issued judicial review proceedings challenging the SCC's decision. Permission to apply for judicial review was refused by Lang J and then by Swift J, who delivered an ex tempore judgment refusing permission on grounds that the claims were unarguable. The Appellant then applied for permission to appeal the refusal to bring judicial review proceedings.
Legal Issues Presented
- Whether the JAC's process was fair, particularly regarding the confidentiality of statutory consultation responses and whether candidates should be given an opportunity to comment on adverse matters raised in those consultations.
- Whether the alleged infringement of Article 8 of the European Convention on Human Rights occurred in the JAC's process.
- The proper interpretation of Regulation 30 of the Judicial Appointment Regulations 2013 concerning the scope of statutory consultation and whether sub-consultation by named consultees is permitted.
- Whether permission should be granted to add a new ground of claim based on discrimination under Article 14.
Arguments of the Parties
Appellant's Arguments
- The JAC's obligations of confidentiality to consultees may not preclude fairness requiring disclosure or gist of adverse consultation responses to candidates.
- The statutory consultation process under Regulation 30 does not permit sub-consultation by the named consultee with others.
- The Appellant sought to argue that the process infringed Article 8 rights related to private and family life.
- The Appellant wished to add a discrimination claim under Article 14 but was refused permission to amend on this ground.
Respondent's Arguments (Judicial Appointments Commission)
- Confidentiality of statutory consultation responses is essential to maintain the integrity and functionality of the judicial appointment process.
- There is no requirement of fairness that mandates disclosure of consultation content to candidates; candidates can provide their own evidence and the Selection Day process allows probing without breaching confidentiality.
- The Regulation 30 wording does not limit the named consultee's ability to consult others, making the sub-consultation challenge unarguable.
- The proposed Article 14 discrimination ground is unlikely to succeed and adds unnecessary complication.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court granted limited permission to appeal and to bring judicial review proceedings on the grounds relating to fairness, Article 8, and Regulation 30. It recognized the public interest in a scrupulously fair and transparent judicial appointment process and acknowledged the importance of confidentiality in statutory consultations. However, the court found it arguable that fairness may require the JAC to seek consent from consultees to disclose adverse comments or to provide candidates with a gist of such comments without identifying sources, consistent with statutory confidentiality provisions.
Regarding Article 8, the court expressed some doubt that framing the fairness issue as a breach of Article 8 added substantive value but nonetheless allowed the claim to proceed on this basis. On Regulation 30, despite the JAC's argument that the Regulation permits sub-consultation without limitation, the court found the challenge sufficiently connected to fairness to warrant full consideration.
The court refused permission to amend to add an Article 14 discrimination claim, citing doubts about establishing prima facie discrimination, the lack of advantage in adding complexity, and the unsuitability of the comparator chosen by the Appellant.
The court emphasized that the fairness of the JAC's process should be examined in a full hearing rather than a preliminary permission stage, given the exceptional circumstances and the public interest involved.
Holding and Implications
The court GRANTED LIMITED PERMISSION TO APPEAL and allowed the Appellant to bring judicial review proceedings on the grounds of fairness, Article 8, and Regulation 30 challenges. Permission to amend to include an Article 14 discrimination claim was refused.
The case will be retained in the Court of Appeal with directions for the parties to finalize the grounds of challenge and remedies sought, and to agree on procedural directions aiming for a substantive hearing estimated to last two days in the Michaelmas term 2024. No new precedent was established; the decision primarily facilitates a full hearing of the Appellant's claims to ensure fairness and transparency in the judicial appointment process.