Factual and Procedural Background
In these Judicial Review proceedings, a District Judge (the claimant) challenges the fairness of the consultation process used by the Judicial Appointments Commission (the JAC) during selection exercises for judicial appointments. The claimant’s concern focuses on the use of material provided by the Deputy Senior Presiding Judge (the DSPJ or Consultee) and potentially from sub-consultees in the statutory consultation process.
The claimant was interviewed by selection panels on 26 November 2021 and was initially recommended as selectable in both criminal and civil jurisdictions. However, the Selection and Character Committee (the SCC) meeting on 10 March 2022 downgraded the claimant’s grade for "Working and Communicating with Others" from C (sufficient evidence) to D (insufficient evidence), resulting in a decision that she was not appointable in either jurisdiction.
The claimant applied for disclosure of the negative consultation material but was refused on the grounds that the application was made too late and would have caused delay. The claimant contends that statutory consultees should not be permitted to rely on comments from a broad class of sub-consultees without consent and that negative comments should not be relied upon without consent to disclose them to the candidate.
The legal dispute involves interpretation of sections 88 and 139 of the Constitutional Reform Act 2005 and regulation 30 of the Judicial Appointment Regulations 2013. The claimant’s application for Judicial Review was initially refused permission twice but was granted permission by the Court of Appeal in June 2024. The JAC has since committed to revising its statutory consultation process and improving transparency.
The claimant’s background includes a prior bullying complaint against a senior judge at her court, which became widely known, although the negative consultation material did not relate to this incident. The claimant’s interview included discussion of a "Covid incident" where she asserted authority without formal power, which was a focal point in the assessment of her competencies.
The selection panels recommended the claimant as selectable based on interview evidence and statutory consultation. However, the SCC later downgraded her grade based on a reassessment of the sufficiency of evidence, including negative material from consultation. The claimant received conflicting feedback letters, causing confusion about her status. Following further correspondence and legal proceedings, the JAC apologized for the confusion and explained the consultation process.
Legal Issues Presented
- Does section 88 or regulation 30 require that the statutory consultee provide comments without reference to any sub-consultees or third parties?
- Was it unlawful for the JAC to place some reliance on statutory consultation provided by sub-consultees?
- On the proper construction of the confidentiality provisions of section 139, what uses of consultation material are available to the JAC?
- Were the JAC's policy or practices as to the use of consultation material unlawful or unfair?
- Was the JAC's use of negative consultation material concerning the claimant unlawful or unfair or in violation of the claimant's rights under article 8 of the European Convention on Human Rights (ECHR)?
- Was the JAC's failure to inform the claimant that comments would be sought by the Consultee from sub-consultees unlawful or unfair or in violation of the claimant's article 8 rights?
- What, if any, relief should be granted to the claimant?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Reg. v. Home Secretary, Ex p. Doody [1994] 1 AC 531 |
Principles of fairness in administrative decisions, including the need to inform affected persons of the gist of adverse material against them. |
Used to establish the fairness requirements applicable to the consultation and disclosure process in judicial appointments. |
| R (Talpada) v. Secretary of State for the Home Department [2018] EWCA Civ 841 |
Distinction between procedural and substantive unfairness and the limits on judicial intervention. |
Referenced to frame the scope of unfairness allegations and judicial review remedies in the context of administrative decisions. |
| R (Segalov) v. Chief Constable of Sussex Police [2018] EWHC 3187 (Admin) |
Application of Doody principles to ensure a person is given the gist of complaints against them for fair representation. |
Supported the principle that candidates should be informed of adverse material affecting them for fairness. |
| Volkov v. Ukraine [2013] 57 EHRR 1 |
Engagement of article 8 ECHR rights in employment-related dismissal of judges and requirements of foreseeability and legal safeguards. |
Considered in relation to whether article 8 added anything beyond domestic law to the claimant’s case on fairness. |
| Denisov v. Ukraine (Application No 76639/11), 25.09.18 |
Analysis of article 8 ECHR in employment-related judicial scenarios and limits of its application. |
Used to distinguish the claimant’s situation and to conclude article 8 did not add to domestic law claims. |
Court's Reasoning and Analysis
The court first examined the statutory provisions governing the selection process and confidentiality. It found that neither section 88 nor regulation 30 explicitly prohibits a statutory consultee from seeking or relying on information from sub-consultees. Although regulation 30 is not an ideal foundation for the consultation process used by the JAC, section 88(1) authorizes the JAC to determine and apply its own selection process, including consultation methods.
Regarding confidentiality under section 139 of the Constitutional Reform Act 2005, the court analysed the interplay between subsections (4) and (5). It concluded that while consent is required for disclosure under section 139(4)(a), the JAC may disclose negative consultation material to candidates without consent if it is necessary for the exercise of its functions under section 139(4)(b). Thus, the JAC has five lawful options for dealing with negative material, ranging from disregarding it to disclosing it with or without consent, depending on necessity.
The court found the JAC's practice of only seeking consent in "exceptional circumstances" to be an unlawful fetter on its discretion. Instead, the JAC must consider all options in each case based on the circumstances. The court was unable to determine whether the JAC's actual use of negative material concerning the claimant was unfair or unlawful without seeing the material but noted that the process of exploring negative material during the interview was appropriate and that the SCC was entitled to reassess the panel’s grading.
On the issue of informing candidates about sub-consultation, the court held that the JAC ought to inform candidates in advance that comments may be sought from sub-consultees. The failure to do so in this competition was unfair but did not amount to an abuse of power warranting quashing the decision. The court emphasized that transparency about the consultation process is desirable and that mere reliance on candidates’ supposed knowledge or assumptions about sub-consultation is insufficient.
Holding and Implications
The court’s final decision was to allow the application in part, with the following core rulings:
- Section 139(5) does not preclude disclosure of information given by one individual about another when any circumstance in section 139(4) applies.
- The JAC’s practice of limiting disclosure of negative consultation material to candidates only in exceptional circumstances unlawfully fetters its discretion.
- The JAC must inform candidates in advance about the classes of persons (including sub-consultees) from whom information about them may be sought.
The court declined to quash the decision not to select the claimant as a circuit judge, noting that the unfairness identified did not amount to an abuse of power warranting overturning the outcome. The judgment underscores the need for the JAC to adopt fairer and more transparent consultation practices going forward, particularly regarding disclosure and candidate information. No new legal precedents were established beyond clarifying the application of existing statutory provisions and fairness principles in this context.