Court of Appeal hands down ruling on secret soundings in judicial appointments

District Judge Katie Thomas, who sits at Walsall County Court, brought the case against the Judicial Appointments Commission (JAC), to which she had applied in May 2021 to become a circuit judge in both crime and civil cases.

After being interviewed, DJ Thomas was initially told she was deemed selectable in both categories, but was later told she was not appointable in either because JAC’s Selection and Character Committee (SCC) had reduced her grade in the ‘working and communicating with others’ category from C to D.

Sir Geoffrey Vos, Master of the Rolls, said DJ Thomas’s main concern was the SCC’s use of material provided to the JAC in response to the consultation request made to the deputy senior presiding judge (DSPJ).

He said the JAC’s evidence explained that the statutory consultee was told, in guidance, that consultees might “turn to others with a deeper or more recent or more developed knowledge of a candidate” and it was likely that the negative material produced by the consultee about DJ Thomas “emanated from one or more third-party sub-consultees. It is not clear precisely who provided that material”.

DJ Thomas argued that the statutory consultee was not, as a matter of both law and fairness, at liberty to provide the JAC with comments about candidates from a broad and unlimited class of sub-consultees, and where negative comments were provided, these should not be relied on by the JAC unless it has obtained the consultee’s consent to disclose them to the candidate so they can respond.

Sir Geoffrey said there were three crucial relevant legislative provisions: sections 88 and 139 of the Constitutional Reform Act 2005 and regulation 30 of the Judicial Appointment Regulations 2013/2192.

JAC witness, Brie Stevens-Hoare KC, a professional barrister member of the JAC, said it was not the committee’s practice to seek consent from consultees to disclose to applicants what they had said “absent some exceptional set of circumstances”.

Candidates were not specifically told there would be sub-consultees and the JAC said it should be obvious that the DSPJ would have to ask for leadership judges’ views.

Sir Geoffrey said the court had to decide:

• does section 88 or regulation 30 require that the statutory consultee provide comments without reference to any sub-consultees or other 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 on 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 (article 8) of the European Convention on Human Rights (the 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 rights under article 8?
• what, if any, relief should be granted?

Sir Geoffrey said he had decided Regulation 30 does not specify whether the consultation material can come from sub-consultees providing comments to the consultee and does not prevent this.

On the proper construction of the confidentiality provisions of section 139, the JAC can put negative material to a candidate for their comments under section 139(4)(b) without seeking or obtaining the consent of the consultee.

He said the JAC’s practice never to put negative material to a candidate save in exceptional circumstances “places an inappropriate fetter on its discretion.

“It should consider, in each case of negative material, how it should proceed, based on all the circumstances of the case…”

He said the JAC ought to inform candidates in advance that comments will be sought about them from the consultee and from sub-consultees.

The court would not though set aside the decision that DJ Thomas was not selectable.

Sir Geoffrey said: “It has, however, not been shown that [the inappropriate fetter] had an adverse effect on the claimant in this case.”

He said the sub-consultation process should be clearly explained but the lack of this was not a reason to set aside the decision on DJ Thomas.

Lord Justice Underhill agreed with Sir Geoffrey but gave his own detailed interpretations of Regulation 30 and section 139. Lady Justice Nicola Davies agreed with both judges.

DJ Thomas brought the case with the support of the GMB trade union, whose national officer Stuart Fegan said: “This is an incredibly important ruling and a victory against the old boys’ network that’s dominated our judiciary for too long.

“Although the court did not quash the JAC’s decision in Judge Thomas’s specific case - largely due to insufficient information and late disclosure - she can feel truly vindicated.

“The court upheld her central arguments about the lack of fairness and transparency in the JAC’s consultation process.”

Mark Smulian