Vos: Case should be examined at full hearing
A district judge who argues that applicants for judicial appointment should be told of negative comments about them in confidential references will get to put her case to the High Court.
The GMB union’s judicial branch – which represents District Judge Katie Thomas – says the process harks back to the ‘secret soundings’ approach to appointment that predated the Judicial Appointments Commission (JAC).
The Court of Appeal overturned Mr Justice Swift’s refusal to grant DJ Thomas permission to judicially review the JAC after it decided not to recommend her for appointment as a circuit judge.
Giving the unanimous ruling, the Master of the Rolls, Sir Geoffrey Vos, said it was “very much” in the public interest for the fairness of the JAC’s procedure to be examined at a full hearing.
He noted that Swift J had described DJ Thomas’s treatment by the JAC was “very unfortunate indeed”.
DJ Thomas, who practised in crime at the self-employed Bar and as in-house counsel for a firm of solicitors, became a salaried district judge in 2018 and applied to become a circuit judge three years later.
Vos MR recounted: “A matter which she felt could adversely affect her application was a formal complaint of bullying which she had made against a senior male judge in 2019.
“Pursuant to the formal protocol, the appellant’s complaint was sent to the senior presiding judge of the circuit. The complaint led to a meeting with the junior presiding judge and a decision was made that the appellant would not pursue the complaint as the judge was retiring.”
DJ Thomas was unsuccessful and the JAC told her initially that she was “selectable” but had not been chosen due to the strength of the competition.
Soon after, however, a memo from the circuit presiders encouraged people to apply for a circuit judge appointment due to the limited number recruited.
She sought clarification from the JAC. It emerged that the selection panels for civil and criminal appointment respectively had assessed her as a C (selectable).
However, the selection and character committee, which makes the final decision, downgraded her to D (not presently selectable), because the evidence from both the selection days and the statutory consultee on two of the competencies, ‘Working’ and ‘Communication with others’ was insufficient.
Lord Justice Haddon-Cave, then the deputy senior presiding judge, was the statutory consultee.
Mrs Justice Lang refused DJ Thomas permission to apply for judicial review on the papers, a decision upheld after a hearing by Swift J on the basis that none of the grounds put forward was arguable.
Vos MR said: “It seems to me that the central issue raised by the claim is whether the JAC is right to proceed on the basis that its obligations of confidence to consultees mean that it cannot in many, if not most, circumstances give candidates the opportunity, in fairness, to comment on adverse matters raised by the consultation responses…
“I believe that it is arguable that there are circumstances in which the JAC may be obliged as a matter of fairness at least to seek the consent of consultees to disclosure of what they have said, or to give candidates the gist of the comments in a form which does not identify the source, such that there is no breach of section 139 of the Constitutional Reform Act 2005.”
This section provides, in broad terms, for confidentiality in the absence of the consent of the person providing the information.
Stuart Fegan, GMB senior organiser, said: “This case is incredibly important as it seeks to challenge this controversial, and in our view wholly unfair, practice.
“This practice is not in keeping with the objective of transparency for which the JAC was set up and enables continued discrimination when it is clear that the judiciary falls far short of being broadly reflective of the society over which it presides.
“If this old boys’ network continues to cherry pick members of its own, we will never see the end of this system which is dominated by white, male, privately educated barristers.”
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