News

24/07/2025

Court of Appeal hands down judgment in the retained judicial review of R(Thomas) v Judicial Appointments Commission, holding that negative information received about applicants for judicial office must be used fairly

News, Administrative & public law

On 17 July 2025, the Court of Appeal handed down judgment in the retained judicial review of R(Thomas) v Judicial Appointments Commission [2025] EWCA Civ 912, finding that the reliance by the Judicial Appointments Commission (“the JAC”) on “statutory consultation” was not of itself unlawful but that negative material obtained during that process must be used fairly.

In so finding, the Court of Appeal held that the Constitutional Reform Act 2005 (“CRA 2005”) permitted the JAC to put negative material obtained from the statutory consultation process to a candidate without seeking the consent of the consultee where it is necessary to do so; and that the JAC’s practice of never putting negative material to candidates save in exceptional circumstances placed an unlawful fetter on its discretion.  In addition, the Court of Appeal held that fairness requires that the JAC inform prospective candidates of the classes of people from whom opinions or information about them may be sought.

Background

District Judge Katie Thomas challenged the fairness of the process of consultation used by the JAC in undertaking selection exercises for judicial appointments.

District Judge Thomas applied to be a Circuit Judge. The JAC made a consultation request to the Deputy Senior Presiding Judge (“the Consultee”). The Consultee carried out a process of “sub-consultation”, seeking comments from others about the candidates.  The candidates, including District Judge Thomas, were not informed in advance that this sub-consultation would take place, nor who would be consulted. The JAC received negative material about District Judge Thomas from the sub-consultation.  That negative material was not, and has never been, disclosed to District Judge Thomas.

The selection panels that interviewed District Judge Thomas recommended to the JAC’s Selection and Character Committee (“the SCC”) that she was selectable in both the criminal and civil jurisdictions. However, at a subsequent meeting of the SCC, the SCC reduced her grade in the competency of ‘Working and Communicating with Others’, at least in part on the basis of the negative statutory consultation material received. Having done so, and by contrast with the conclusion of the selection panel, the SCC determined that the Judge was not appointable in either jurisdiction.

The central issues in the case related to how the JAC ought to deal, in fairness, with negative material produced by consultees / sub-consultees and what candidates ought to be told as to the consultation / sub-consultation process.

Judgment

The Court determined District Judge Thomas’s application for judicial review as follows:

• Neither the provisions of the CRA 2005 nor the provisions of the Judicial Appointments Regulations 2013 prohibit sub-consultation. It was not, therefore, unlawful for the JAC to place some reliance on statutory consultation provided by sub-consultees. That, however, was separate from the question of fairness.
• On the proper construction of the confidentiality provisions in Section 139 CRA 2005, the JAC could, if it was necessary to do so, put negative material to a candidate for their comments under Section 139(4)(b) CRA 2005 without seeking or obtaining the consent of the consultee.
• In the case of negative consultation material, the lawful ways in which the JAC could exercise its discretion included:

(i) disregarding the negative material;

(ii) exploring the negative material at interview without making the candidate aware of it or making any direct reference to it;

(iii) putting the gist of the negative material to the candidate, whilst preserving the confidentiality of the consultee and sub-consultees;

(iv) seeking the consent of the consultee to disclose the negative material for the candidate’s comments and then do so, if consent was granted; or

(v) even if such consent was refused, deciding to put the negative material to the candidate under Section 139(4)(b) CRA 2005.

• The JAC’s practice never to put negative material to a candidate save in exceptional circumstances placed an inappropriate fetter on its discretion. The JAC had to consider whether and how it should take negative material into consideration (R v Home Secretary, ex p. Doody [1994] 1 AC 531) and decide how to proceed based on all the circumstances of the case, choosing between the five lawful options available to it.
• The JAC ought, in fairness, to inform candidates in advance that comments will be sought about them from the consultee and from sub-consultees, and the classes of person from whom opinions or information about them may be sought. It was not sufficient to refer to the sub-consultation process merely by providing a link to guidance provided to the statutory consultee.

The Court of Appeal was not able to determine whether the JAC’s use of consultation material about District Judge Thomas derived from the sub-consultation was unlawful, unfair or in violation of her Article 8 ECHR rights without seeing the material in question, and an application for disclosure of the redacted material was refused.  As such, the judge was granted declarations relating to the fairness of the process, but the decision not to appoint her to the role of Circuit Judge in 2022 was not set aside.

Ben Collins KC and Nicola Newbegin, instructed by RRM Law, appeared for the Claimant, District Judge Thomas.  They were assisted by Annie Davis (pupil barrister).

Robert Moretto, instructed by the Government Legal Department appeared for the Judicial Appointments Commission with Sir James Eadie KC and Natasha Simonsen.

You can read the full judgment here.