Susan Chan represents JAC in the first judicial review claim against the Judicial Appointments Commission

Judgment was handed down on 23rd May 2014 in the first judicial review claim against the Judicial Appointments Commission to be heard by a court: Jones v Judicial Appointments Commission [2014] EWH 1680 (Admin).
http://www.bailii.org/ew/cases/EWHC/Admin/2014/1680.html

Susan Chan of 42BR acted as sole counsel for the Judicial Appointments Commission (JAC). Mr Jones was represented by Jonathan Swift QC.

Mr Graham Jones challenged the JAC’s decision not to appoint him as a District Judge on the grounds of character; specifically, because he had 7 live penalty points endorsed on his driving licence as a result of two motoring offences in 2010 and 2012. Since 2010 Mr Jones had already sat as a part-time Deputy District Judge and in 2013 applied for appointment as a full-time District Judge. He was shortlisted following his performance in an online assessment and attended the selection day for interview and assessment. On merit alone, it was highly likely that he would have been recommended by the JAC to the Lord Chancellor for appointment, but the decision was taken not to appoint him on character grounds. Mr Jones had been summonsed for a speeding matter in August 2010 for which he received 4 penalty points and £650 fine and in July 2012, he had been convicted of not observing a red traffic signal, for which he received a fixed penalty and 3 points. As points remain live for 4 years from date of offence, when the JAC were considering his application for appointment he had 7 points.

The JAC has a statutory obligation under section 63(3) of the Constitutional Reform Act 2005 to only appoint those of good character. The JAC published “Good Character Guidance” to inform potential applicants of how it would assess character. The guidance of 2011 which applied to the District Judge exercise did not specify how many points would normally prevent selection for judicial appointment, but indicated that fixed penalty offences “may be disregarded at the discretion of the JAC, although this may not be the case for repeated offences.” In July 2013, a revised version of the guidance was published, applying to exercises launched after 10.7.13 although it stated that the revised version would be taken into account in exercises launched prior to that date. The revised guidance made clear that those with 6 points from a single offence or more than 6 points (if more than one motoring offence) would “normally” prevent the applicant being selected for judicial appointment.

The decision was taken not to recommend Mr Jones for appointment because he had 7 points and the JAC saw no reason to depart from the ‘normal’ consequence that someone with more than 6 penalty points would not be appointed whilst those points remained live.

Mr Jones argued that:

1. the JAC’s good character policy of generally prohibiting those with more than 6 points from being appointed, did not implement the statutory purpose of only appointing those of good character, especially as existing judges with more than 6 points endorsed were permitted to continue sitting;
2. the policy had not been properly applied in his case as the JAC had ignored its discretion to depart from the normal practice; and
3. the decision to exclude him from appointment was irrational.

The Divisional Court (Sir Brian Leveson and Mr Justice Supperstone) rejected the Claimant’s arguments. On the first ground, the Court observed that the JAC had a statutory obligation to only appoint those of good character and that the line had to be drawn somewhere. Wherever it was drawn, people would argue that it was arbitrary and on the wrong side of the line. It was however, the JAC’s responsibility to draw that line somewhere, to ensure that public confidence in the judiciary was maintained and to do so in a way that was proportionate. The JAC was entitled to issue guidance that those holding more than six points (if more than one motoring offence) would normally prevent their being appointed.

As regards the allegedly inconsistent treatment between existing judges and those applying for appointment, the Court pointed out the important distinction that the JAC was charged with responsibility for recommending new judicial appointments, whereas it was the Lord Chief Justice who decided on action to be taken in respect of existing judges. The JAC was not responsible for disciplining existing judges. In any event, the Judicial Conduct Guide required existing judges to declare to the Lord Chief Justice if they had acquired 6 points as a result of a single motoring offence or more than 6 points otherwise; it was then a matter for the Lord Chief Justice to decide whether to take action against the judge. So the “trigger” for the reporting obligation in respect of existing judges, was the same as that which would normally prevent appointment of new judges. Whilst Mr Jones had continued to sit as a Deputy District Judge he had not in fact observed his obligation to report his motoring convictions once he had acquired more than 6 points. The suggestion that the character guidance was irrational for inconsistency as between existing judges and applicants for appointment was rejected.

In relation to the Claimant’s second ground that the policy had not been applied properly in his case, the Court accepted the JAC’s evidence that the 2013 version of the character guidance had not materially changed the 2011 policy; it had simply sought to provide greater transparency and clarity to potential applicants on how the JAC operated its policy in relation to repeat motoring offences. Whilst there may have been some initial confusion over whether the 2011 or 2013 versions of the policy had been applied, in reality, there was no material difference; the normal consequence of an applicant having more than 6 points was that they would not be selected on character grounds.

The JAC had considered the Claimant’s circumstances and detailed written representations on two separate occasions and decided not to depart from the “normal” practice articulated in the 2013 policy (but in practice, applied before then) that applicants with more than 6 points on their licence would not be appointed. Although there was a discretion to depart form that ‘normal’ consequence, the JAC was entitled to consider that only mitigation which was specific to the circumstances of the offence would be capable of overriding the normal outcome of having more than 6 points. The Claimant accepted that the JAC was entitled to limit the matters which it would consider in relation to motoring offences in this way. Mr Jones had not put forward anything by way of mitigation other than that there had been no aggravating features in the 2010 and 2012 offences. The Court found it “simply inconceivable” that the JAC, having said that it had considered the Claimant’s written representations, did not appreciate that it had a discretion to depart from the “normally” adopted position. The Court found that the JAC had simply chosen not to do so, albeit it would have been better if the JAC had given brief reasons for not departing from the “normal” position.

The Divisional Court also rejected the Claimant’s third submission that to exclude him from appointment on the basis of his two driving convictions that had resulted in 7 points, was irrational. The character policy was lawful and had been applied in a lawful manner to the Claimant so the JAC was entitled to conclude that the Claimant was not “of good character” although this expression was a term of art within the legislation. The JAC’s decision could not be said to be ‘Wednesbury’ unreasonable. It was open to the Claimant to reapply when the first set of his points expired later this year such that he would have less than 7 live points.

SUSAN CHAN

27th May 2014

Susan Chan

Call 1994