Judicial recruitment process 'opaque and unfair', judge tells Court of Appeal

A judge’s long-running battle with the Judicial Appointments Commission over a controversial recruitment exercise has reached the Court of Appeal, which was told yesterday that the current system is opaque and unfair to candidates.

District judge Kate Thomas took the JAC to court to challenge the legality of its ‘statutory consultation’ process after receiving two ‘mutually contradictory’ letters about why her application to the circuit bench was unsuccessful.

‘Statutory consultation’ requires the commission to consult a person who has held the office for which candidates are applying, or someone who has other relevant experience, to ensure that candidates are of good character and have the relevant capability.

In written submissions, Thomas’s legal team said Thomas has had to ‘piece together’ how the JAC dealt with her application from correspondence she received, pleadings and evidence. She does not know the content of the statutory consultation responses beyond the fact that at least some of it appears to have come from presiding judges.

Ben Collins KC, for Thomas, told the court yesterday that the commission is required by law to consult ‘a person’, not ‘a multiplicity of individuals’. The statutory consultee can obtain the views of others in certain circumstances, but those circumstances are ‘circumscribed’.

‘Why [do] we have restrictions at all if parliament intended the JAC to take wide-ranging soundings from an unlimited pool? The taking of soundings is exactly the system the Constitutional Reform Act was intended to end,’ Collins added.

In the current system, Collins said there was no control over who is asked for their opinion. ‘There is not a careful process for selecting the right people. If there were, you would have assessments from the claimant’s own designated civil judge and designated family judge.’

Thomas’s legal team applied earlier in the day to submit witness statements from her designated civil and family judges, as well as the disclosure of redacted material, but these were refused by appeal court judges Sir Geoffrey Vos, Lord Justice Underhill and Lady Justice Davies.

The court will hear submissions from Sir James Eadie KC, for the commission, today.

Thomas is represented by Ben Collins KC and Nicola Newbegin. The JAC is represented by Sir James Eadie KC, Robert Moretto and Natasha Simonsen. Intervener 4A Law is represented by Arfan Khan and Tahir Ashraf.