Judicial review partially successful in relation to the recruitment process run by the Judicial Appointments Commission. Greater information should have been given in relation to the use of a statutory consultee.

The claimant practised as a self-employed criminal barrister and then as an in-house counsel for solicitor’s firm. In 2018 the claimant was appointed as a salaried district judge and in 2021 she applied to become a circuit judge. The claimant was recommended as ‘selectable’ in both civil and criminal jurisdictions by the selection panel following interview.  However, the Selection and Character Committee reduced her grade in certain categories post-interview. The decision was based upon information received from the consultee which allegedly had negative material. The consultee had consulted with other leadership judges meaning that the negative material may well have arisen from third-party sub-consultees. Their identity was not clearly known. The claimant applied to have the material disclosed but it was refused.

The claimant brought judicial review proceedings citing that the statutory consultee was not at liberty to provide comments from a broad and unlimited class of sub-consultees and that where there are negative comments then they should not be relied upon unless it had obtained the consent of the consultee to disclose them to allow for responses to be considered.

The Court of Appeal determined that the statutory rules relating to the statutory consultee did not stop the consultee from providing comments with reference to sub-consultees. It was therefore not unlawful for the Judicial Appointments Commission to adopt a selection process which involved a consultee seeking views from others and making them known.

On the issue of the material, the Court of Appeal held that the Commission should, as a matter of fairness, inform candidates in advance that comments would be sought from the consultee and potential sub-consultees. The information which omitted the mention of sub-consultees was not appropriate or fair. The claimant was further entitled to declarations that the Commission’s practice of restricting disclosure of negative material was an inappropriate fetter on its discretion – it should have informed candidates about the sub-consultation.  However, the claimant’s application that the decision be set aside was rejected.

A fairly niche case relating to judicial appointments and the statutory framework as it exists around it in England and Wales. Despite that niche there are some overarching aspects to be considered in terms of fairness that would be expected. To this end, the need to disclose aspects of the procedure and what will be considered was required as was the need to ensure that there could be some view on the negative material where it was going to be considered.  Whilst this is unlikely to have wide ramifications for recruitment generally it may be something that can be considered in reviewing existing practices.

You can read the case in full here.