Katie Thomas, R (on the application of) v Judicial Appointments Commission

A judicial appointments body may design a selection process that obtains evidence-based information about candidates through a statutory consultee and sub-consultees. Section 88(1) of the Constitutional Reform Act 2005 provides the statutory basis, even though regulation 30 of the Judicial Appointments Regulations 2013 is an inapt foundation for that process. Under section 139, disclosure of confidential negative material to a candidate does not invariably require the source’s consent where disclosure is necessary for the appointment function. The body must consider the available options in each case and must not fetter its discretion by reserving disclosure for exceptional circumstances. Fairness also requires candidates to be told, in general terms, that information may be sought from sub-consultees and the classes of persons who may be consulted.

A District Judge applied for appointment as a Circuit Judge in the civil and criminal jurisdictions. The selection panels assessed her as selectable, but the Selection and Character Committee downgraded her assessment for working and communicating with others and decided that she was not presently selectable.

She challenged the consultation process, the use of negative material obtained through sub-consultees, the JAC’s confidentiality practices, and the failure to explain sub-consultation to candidates. The application for judicial review had been refused by Lang J and by Swift J. The Court of Appeal granted permission to bring judicial review proceedings and retained the claim. The central issues were whether the consultation process was authorised by sections 88 and 139 of the Constitutional Reform Act 2005, and what fairness required in handling and explaining consultation material.

1. Disposition. The application was allowed in part. The court declined to quash the decision that the claimant was not selectable, but granted declarations concerning the JAC’s discretion over negative material and the information required about sub-consultation.
2. Statutory basis for consultation. Regulation 30 of the Judicial Appointments Regulations 2013 does not say whether a consultee may obtain assistance from sub-consultees. It is an inapt foundation for the JAC’s information-gathering exercise and may not itself authorise that model. Section 88(1) of the Constitutional Reform Act 2005, however, permits the JAC to determine and apply a selection process involving evidence-based information from judges or other persons with experience of candidates’ work. Reliance on such sub-consultation was therefore lawful.
3. Confidentiality and disclosure. Section 139(5) does not override the alternative lawful-authority grounds in section 139(4). In particular, section 139(4)(b) permits disclosure of negative material to a candidate without the source’s consent where disclosure is necessary for the JAC’s appointment functions. The JAC therefore has five lawful options: disregard the material; explore it indirectly at interview; put its gist to the candidate while preserving confidentiality; seek consent and disclose if consent is given; or disclose without consent if necessity under section 139(4)(b) is established.
4. Fair exercise of discretion. Fairness requires the JAC to consider how negative material should be used in the circumstances of each case. A practice of considering disclosure only in an exceptional set of circumstances is an unlawful fetter. The court could not determine whether the material was actually used unfairly because it had not been disclosed, although the evidence did not make the process obviously unfair and the Selection and Character Committee was entitled to reach its own view of the evidence.
5. Transparency. Candidates should be informed in advance, in general terms, that comments may be sought from sub-consultees and of the categories of persons who may be consulted. The failure to explain that process was inappropriate and unfair, but it was not an extreme abuse of power warranting quashing the selection decision. Article 8 added nothing to the domestic-law claims on the facts and submissions as finally presented.

• Court of Appeal (Civil Division): The Court of Appeal granted permission to bring judicial review proceedings and retained the claim. It allowed the application in part, refused to quash the non-selection decision, and granted declarations.
• High Court, Administrative Court: Lang J refused permission on 30 March 2023. Swift J refused permission after an oral hearing on 6 December 2023, holding the grounds unarguable.