D'Costa & Anor, R (on the application of) v Secretary of State for Constitutional Affairs & Anor

The expression “judicial office” has no inherent legal meaning. Exercising functions which are judicial in nature does not, without statutory support, make a person a judicial officer or judge. Judicial review cannot create a status, title or employment conditions which Parliament has not recognised.

Whether functions must be performed by members of the judiciary for European Convention on Human Rights Article 6 purposes is a separate question. Employment status and terms remain matters for the minister or Parliament unless an identifiable statutory or prerogative power has been unlawfully exercised.

The claimants were District Probate Registrars seeking a declaration that they were judicial officers. They challenged the defendants’ confirmation that they were civil servants and did not serve on judicial terms. The dispute arose from disagreement about pay, appraisal and employment status.

The claimants exercised adjudicative and administrative functions under the Supreme Court Act 1981 and the Non-Contentious Probate Rules 1987. The central issue was whether those functions, statutory provisions or Article 6 entitled the court to grant the declaration.

1. The applications were dismissed with costs. Leave to appeal was refused.
2. “Judicial office” was not a legal or statutory term. The claimants identified no statutory provision which had been misinterpreted, no unlawful exercise of discretion and no unlawfully exercised power. The declaration therefore had no legal basis.
3. Judicial functions did not themselves confer the status of judicial officer or judge. The statutory provisions concerning appointment, civil-service treatment, pensions and listed offices did not support the declaration. Even if the claimants were office-holders paid as civil servants rather than civil servants in a strict sense, that distinction could not produce the status sought.
4. The inclusion of District Probate Registrars in section 64(2) of the Courts Act 2003 was treated as an oversight and did not alter their legal position. A change of title or status required primary legislation or a lawful decision under an applicable power.
5. Article 6 did not assist the claimants. If a litigant established procedural non-compliance, the arrangements might require reconsideration, but the claimants accepted that they did not need to be judges for Article 6 compliance.
6. No basis for relief arose from the Royal Prerogative. The requested nomenclature, pay and appraisal terms were matters for the Secretary of State or Parliament, not the court.