Judicial appointments - Court of Appeal (Civil Division) decision in The King (on the application of Thomas) v Judicial Appointments Commission

The Constitutional Reform Act 2005 included provisions to reform the judicial Appointments process.

The reform included the creation of the Judicial Appointments Commission (JAC) which ' selects candidates for judicial office in England and Wales, and for some tribunals with UK-wide powers.'

 

The appointments process received some recent judicial scrutiny

by the Court of Appeal (Civil Division) - The King (Katie Thomas) v Judicial Appointments Commission [2025] EWCA Civ 912. 

This was a judicial review to challenge the fairness of the process of consultation used by the JAC in undertaking selection exercises for judicial appointments. Material concerning the applicant for a judicial appointment was sought from the Deputy Senior Presiding Judge (DSPJ) who, in turn, had asked others (referred to as 'sub-consultees') to provide information.

The Court of Appeal held that the JAC ought to, in fairness, inform candidates in advance that comments will be sought about them from the DSPJ and also from 'sub-consultees; but the decision that the candidate was not selectable in the 2021/22 competition would not be set aside - (see judgment para 19).

If the JAC is provided with negative information about a candidate then the Court of Appeal judgment requires it to consider how it should proceed, based on all the circumstances of the case, as between five options set out in para 13 of the judgment -

(1) disregard the negative material, 

(2) seek to explore the negative material at interview without making the candidate aware of it or making any direct reference to it (the practice adopted by the JAC in this case), 

(3) put the gist of the negative material to the candidate, whilst preserving the confidentiality of the consultee and sub-consultees,

(4) seek the consent of the consultee to disclose the negative material for the candidate's comments and then doing so, if consent were granted, 

(5) even if such consent were refused, deciding to put the negative material to the candidate under section 139(4)(b).  (Section 139 deals with confidentiality and subsection 4 sets out when there is lawful authority to disclose information provided).

At least the process has probably been made somewhat more transparent and candidates for selection should now be made aware that consultation will take place and that the views of 'sub-consultees' may be sought. 

The old pre-CRA 2005 'tap on the shoulder from the Lord Chancellor' process has gone but, behind the scenes, consultation still takes place. 

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