Dean Gregory & Anor, R (on the application of) v Judicial Conduct Investigations Office & Anor

The disciplinary jurisdiction concerning judicial office-holders is distinct from an appeal or review of judicial decision-making. A complaint about observations made in a judgment, including trenchant criticism, findings about conduct, or comments on litigation strategy, ordinarily concerns the judge’s performance of a judicial function rather than personal behaviour. Such complaints fall outside the Judicial Conduct Investigations Office’s remit where they raise no separate question of misconduct. The statutory framework must be construed consistently with the guarantee of judicial independence. The Judicial Conduct Investigations Office may reject a complaint at the acceptance stage where it is bound to dismiss it as concerning judicial decision-making or case management. The Ombudsman’s review jurisdiction is confined to procedural compliance and maladministration; it does not extend to the merits of the rejection.

The claimants renewed an application for permission to seek judicial review after Freedman J refused permission on the papers. They complained that observations made by members of the Court of Appeal in a judgment concerning the care and treatment of Indi Gregory were offensive, prejudicial and suggestive of misconduct by the parents and their legal representatives.

The Judicial Conduct Investigations Office refused to accept the complaints under the Judicial Conduct Rules 2023, considering them to concern judicial decision-making and case management rather than misconduct. The Judicial Appointments and Conduct Ombudsman reviewed the handling process but found no procedural error. The central issue was whether the complaints disclosed misconduct within the statutory disciplinary scheme.

1. Renewed permission refused. The claimants’ proposed grounds of judicial review were not arguable.
2. The term misconduct in the Constitutional Reform Act 2005, the Judicial Discipline (Prescribed Procedures) Regulations 2023 and the Judicial Conduct Rules 2023 must be construed in context. Judicial office-holders are subject to a specific regulatory framework, and the meaning of misconduct must respect the statutory guarantee of judicial independence.
3. The distinction is between personal behaviour unrelated to the judicial role and the judge’s performance of that role. In giving judgment, a judge may make unwelcome or offensive findings, express judicial displeasure, criticise the presentation of a case, comment on earlier litigation conduct, and give wider guidance. Those matters remain part of the judicial function and are protected by judicial independence.
4. The complaints concerned the wording and content of the Court of Appeal judgment, including alleged implications of dishonesty, improper litigation tactics, professional impropriety, anger and irritation. They therefore concerned a judicial decision and the manner in which it was expressed, rather than personal behaviour falling within the disciplinary remit. The fact that observations were not strictly necessary to the determination did not require the complaints to be divided into ratio and obiter or make them disciplinary matters.
5. The Judicial Conduct Investigations Office was entitled to consider Rule 23(c) of the Judicial Conduct Rules 2023 when deciding whether the complaints satisfied Rule 8(c). It was bound to reject complaints falling within the exclusion for judicial decisions or case management where they raised no separate question of misconduct. Its reasons adequately explained that conclusion; the law did not require reasons for the reasons.
6. The Ombudsman’s jurisdiction under section 110 of the Constitutional Reform Act 2005 was confined to prescribed procedural failures and maladministration and excluded review of the merits. The Ombudsman was entitled to conclude that no procedural failure had occurred.
7. The existing costs orders were maintained. The defendants were reasonably separately represented, and the claimants’ tragic circumstances did not justify departing from the usual costs principle.

1. High Court (Administrative Court): Freedman J refused permission to apply for judicial review on the papers on 22 August 2024. The claimants renewed the application.
2. High Court (Administrative Court): Dove J refused renewed permission and maintained the existing costs orders.