A district judge whose application to join the circuit bench was unsuccessful has lost a renewed bid to challenge the legality of the Judicial Appointments Commission’s controversial statutory consultation process.
Kate Thomas made a renewed application for permission for judicial review after her first bid was rejected in March 2023 by Mrs Justice Lang. After hearing submissions from lawyers for Thomas and the JAC yesterday, Mr Justice Swift refused permission, saying Thomas’s grounds were not arguable.
Before delivering his decision, Swift first explained the background to Thomas’s case.
Thomas was informed in April 2022 that her application to become a circuit judge was unsuccessful and invited to seek feedback. In May 2022, she was told the selection panel concluded she was selectable but other candidates provided stronger evidence on the required competencies.
‘The claimant thought this seemed odd because, before receiving the feedback letter she received a memo from the presiding judge of her circuit encouraging them to apply in a new circuit judge competition arranged because the previous competition, one in which the claimant participated, failed to produce a sufficient number of successful candidates.’
Thomas sought further feedback and a second letter from the JAC in May 2022 stated that at the final decision-making stage, the selection and character committee (SCC) concluded that she was not presently selectable taking account all of the information it had - her application, statutory consultation comments, selection day performance and independent assessment.
The JAC told Thomas on 25 May 2022 to disregard the first feedback letter, which related to an earlier stage in the selection process, and apologised for the error and confusion.
Nicholas Bowen KC, for Thomas, told the court yesterday that statutory consultation guidance in place at the time did not draw a clear line on how far down a statutory consultee can consult. The guidance has since ‘shifted’ to state that statutory consultees must notify the judicial office, which can help them seek appropriate evidence from sub-consultees.
Thomas’s skeleton argument states that the SCC downgraded her in the ‘working and communicating with others’ competency and in her witness statement, she made an allegation of bullying against a colleague. Bowen told the court yesterday that ‘an unpleasant row’ she had with a judge became common knowledge.
Robert Moretto, for the JAC, said the commission has no option but to consult a statutory consultee, who must provide an informed response ‘otherwise the process would be empty and that cannot be what parliament intended’.
Lack of success this time ‘does not prevent the claimant from applying again’, Moretto said. Changes in the statutory consultation guidance ‘enables the claimant to be reassured in future’ and the commission ‘positively encourages members of the judiciary to have conversations with their leadership judges’.
Bowen told the court Thomas’s current leadership judge was sitting behind her ‘and has absolutely no idea what the problem is, so a conversation with him will not help with a potential reapplication in a future competition’.
