Lonsdale, R (on the application of) v The Judicial Appointments and Conduct Ombudsman

The Judicial Appointments and Conduct Ombudsman may review the handling of a judicial-conduct complaint for procedural failure or maladministration, but may not review the merits of a decision by the JCIO or a judge. Maladministration concerns the manner in which a decision was reached, rather than whether the decision was legally or factually correct. A disagreement with the JCIO’s conclusion that a complaint contains no allegation of misconduct is not itself a procedural failure. Complaints which in substance challenge a judge’s reasons, assessment of evidence, recusal decision or case management remain outside the JCIO’s remit unless a superior court has already made a relevant finding which can be taken as established.

The claimant sought judicial review of the Ombudsman’s decision not to uphold her complaint about the JCIO’s rejection of complaints concerning the conduct of Briggs LJ. Her complaints related to recusal, alleged partiality, dishonesty in the reasons for refusing permission to appeal, failure to consider submissions, and hostile, misogynistic or discriminatory treatment.

The JCIO had rejected the complaint under the Judicial Conduct (Judicial and other Office Holders) Rules 2014. The Ombudsman concluded that the JCIO had followed the relevant process and that there had been no maladministration. The central issue was whether the Ombudsman had unlawfully failed to address an alleged procedural failure or maladministration, or had impermissibly treated allegations of misconduct as challenges to judicial decision-making.

1. Claim dismissed. Permission to seek judicial review of the Ombudsman’s decision dated 26 February 2018 was refused.
2. Under section 110(1) of the Constitutional Reform Act 2005, the Ombudsman’s review jurisdiction is confined to alleged failure to comply with prescribed procedures or some other maladministration. Section 110(6) prohibits review of the merits of a decision by any person, including the JCIO or the judge whose conduct is complained of.
3. Maladministration concerns the manner in which a decision is reached, rather than its merits: The Queen (on the application of David Rapp) v The Parliamentary and Health Service Ombudsman [2015] EWHC 1344 (Admin). The Ombudsman therefore could not substitute his own view for the JCIO’s conclusion under rule 8 of the 2014 Rules.
4. The claimant’s disagreement with the JCIO’s view that her complaints did not constitute allegations of misconduct was not a failure to comply with prescribed procedures. Reconsidering that conclusion would have amounted to a prohibited merits review.
5. The court’s further observations were not necessary to the decision. Complaints about recusal, acting in one’s own cause, partiality, the correctness or honesty of judicial reasons, and the treatment of submissions involved the merits of judicial decisions and could not be investigated by the JCIO without criticism by a superior court. A superior court’s finding of misconduct could, however, be taken as read: Howell v Lees-Millais [2007] EWCA Civ 720. The use of racist, sexist or offensive language may constitute a distinct conduct issue, but the complaint here concerned the reasons for judicial decisions rather than language.

High Court (Administrative Court): The claimant renewed an application for permission to seek judicial review after permission had been refused on paper on 7 September 2018. The application was refused.