England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2014

Sir Brian Leveson P:

Introduction

1. Part 4 of the Constitutional Reform Act 2005 establishes the Judicial Appointments Commission ("JAC") which is responsible for or, by one or more of its members, involved in all judicial appointments in England and Wales. Section 63(2) requires all appointments to be on merit and s. 63(3) makes it clear that no person may be selected "… unless the selecting body [that is to say the JAC] is satisfied that he is of good character".
2. On 18 June 2013, the JAC launched a competition for 42.5 full or full time equivalent District Judge appointments 17 of those posts to be filled immediately; the remainder of the successful candidates were to be placed on what is referred to as a "section 94 list", that is to say a list of persons suitable for appointment in response to a request that the Lord Chancellor expected to make for the appointment of District Judges.
3. Mr Graham Jones, a solicitor and deputy District Judge, entered the competition but, although he progressed through its various stages, by letter dated 4 December 2013, he was informed that his application had been rejected because he was not of good character for the purposes of section 63(3) of the 2005 Act. The reason was that, as at 21 November 2013, he had seven penalty points on his driving licence. This was the result of two convictions: one for speeding in August 2010, resulting in a conviction of February 2011, for which he was fined £650 and received 4 penalty points; and a second for failing to obey a traffic signal in 2012, for which he received a fixed penalty and 3 points.
4. He now challenges that decision by way of judicial review. On 10 April 2014, Hickinbottom J ordered that the issue of permission to proceed with the claim and the substantive claim were to be dealt with as a "rolled-up" hearing: a second challenge to a decision of the JAC in a different competition but based on the same grounds has since fallen away.

Factual background

5. Mr Jones has been a partner in the firm of Smith Llewellyn since 1989. In 2010, he was appointed a deputy District Judge and assigned to the London and South East Circuit. In February 2013 he was selected by the Family Division Liaison Judge for London and the South East to be a candidate to sit on private law Children Act cases and, on 7 May 2013, he was authorised to do so.
6. The competition for a full time appointment as a District Judge started on 10 July 2013 and, having completed an application form, on 23 July he undertook the online assessment test. On 1 August, he was informed that he had passed the test and he was invited to attend a selection day on 17 September 2013. He was thereafter assessed to be "an outstanding candidate for the post of District Judge". At this stage, no judgment had been made as to his character and, indeed, the proposal prepared for the Selection and Character Committee meeting of the JAC on 21 November 2013, while raising the issue of his driving record and subject to its resolution, based on the free standing assessments and interviews, recommended him for immediate appointment as a District Judge. It is common ground that had it not been for the rejection on character grounds, he would have been put forward for appointment as a District Judge or, at the very least, placed on the section 94 list to fill future District Judge vacancies.
7. When making his application, Mr Jones had been required to provide details of any previous convictions and he provided details of the two driving offences. On 9 October 2013, the JAC asked for and were provided with further details of the February 2011 offence. Mr Jones explained that there were no aggravating features affecting the offence, notwithstanding the size of the fine and the elevated number of penalty points in the first offence which was above the minimum of three.
8. When the case came to be considered by the Selection and Character Committee (which is a committee of the entire JAC), Mr Jones' explanation of the February 2011 offence was provided and reported as accurate: the penalty imposed was not the consequence of aggravating features. The Committee's consideration of his application records (C/142):

"The Committee next considered Graham Jones, who had seven points endorsed on his driver's licence, having received a court fine and four points for a speeding offence in 2011 and a penalty for a failure to obey a traffic signal in 2012. The Committee agreed that he should not proceed in the exercise."

9. By letter dated 4 December 2013, Mr Jones was informed that his application had been rejected. He requested a review of the decision. On 9 December, he provided detailed representations in support of that review and arguing the case that his record as a solicitor, as a deputy District Judge and, indeed, as a driver, did not justify the conclusion that he was not of good character.
10. On 12 December 2013, with the benefit of his representations, the Selection and Character Committee further reviewed his application. By e-mail dated 12 December the JAC confirmed its decision on the good character issue.

The Framework

11. The broad language of s. 63(3) of the Constitutional Reform Act 2005, which places on the JAC the obligation to be satisfied that a candidate for judicial office is of good character has been the subject of elaboration by the JAC doubtless not only to ensure consistent decision making but also to provide information to prospective candidates. The relevant guidance specifically in force at the time of this competition had been published on 1 November 2011 although it was revised by a version dated 10 July 2013 i.e. the date after the day upon which this competition was launched. It is common ground that the JAC made it clear:

"The revised version will apply to all exercises launched after 10 July 1013. It will also be taken into account in respect of character decisions resulting from any current exercises."

12. The material parts of the 2011 guidance are at paragraphs 1-6, 10-12 and paragraphs 13-17.
13. Paragraph 3 states:

"The principles the JAC will adopt in determining good character are based on:

The overriding need to maintain public confidence in the standards of the judiciary; and

The fact that public confidence will only be maintained if judicial office holders and those who aspire to such office maintain the highest standards of behaviour in their professional, public and private lives."

14. Paragraph 6 states:

"The JAC will take into account the whole picture of a candidate's character when deciding whether to recommend a candidate to the Lord Chancellor for appointment to a judicial office. The JAC will not reject a candidate on the basis of issues it considers trivial – but all potentially relevant issues must be declared."

15. Paragraph 13 states:

"Convictions for motoring offences (other than parking offences) should be declared in the section of the application form relating to criminal convictions."

16. Paragraph 17 states:

"Any offence leading to a fixed penalty (including moving traffic offences) should be declared and may be disregarded at the discretion of the JAC, although this may not be the case for repeated offences."

17. The material parts of the 2013 policy are paragraphs 1-7, 19 and 20-25 although it is important to note that, in relation to convictions, it descends into very much greater detail than the 2011 policy. In her evidence, Ms Sarah Gane, the Director of Operations in the JAC explains that its aim was to provide greater clarity to candidates as to how the JAC deals with motoring offences but it did not amount to a change of policy in the way it dealt with cases involving repeated offences.
18. Paragraph 4 which sets out the principles the JAC adopts in determining good character is in identical terms to paragraph 3 in the 2011 Guidance. Similarly paragraph 7 which states that the JAC will take into account the whole picture of a candidate's character is in the same terms as paragraph 6 in the 2011 Guidance.
19. Whereas pursuant to the 2011 Guidance, convictions for all motoring offences had to be declared, paragraph 19 and following provide time limits for declarations of motoring convictions (not leading to a custodial sentence) including fixed penalties. In particular, only offences resulting in a fixed penalty in the four years prior to the application must be declared (paragraphs 19 and 23), and there is no requirement to declare a speeding offence if it was dealt with by a speed awareness course (paragraph 25).
20. Paragraph 24 of the 2013 Guidance is in the following terms:

"If there are six penalty points currently endorsed on your licence as a result of a single incident, this will normally prevent you from being selected. If the total number of points currently endorsed on your licence exceeds six, this will also normally prevent you from being selected for judicial appointment. If there are a lower number of points currently endorsed on your licence, the Commission may disregard these, but in coming to a decision it will take into account the nature of the offence(s) involved."

Submissions

21. Mr Jonathan Swift QC, for the Claimant, submits that the good character decision taken by JAC was irrational. He contends that this submission is made good for three reasons considered both individually and cumulatively. These are:

i) The material part of JAC's good character policy does not rationally reflect the purpose pursued by section 63(3) of the 2005 Act.

ii) Even if the policy is lawful, it was not properly applied in this case.

iii) The good character decision reached in relation to Mr Jones was not a rational decision.

Ground 1: Section 63(3) of the 2005 Act and the policy

22. It is beyond argument that the JAC may lawfully adopt principles in determining good character based, first, on the overriding need to maintain public confidence in the standards of the judiciary; and, secondly, on the fact that public confidence will only be maintained if judicial office holders and those who aspire to such office maintain the highest standards of behaviour in their professional, public and private lives. Mr Swift accepts that the JAC may adopt a policy with a view to ensuring a level of consistency in its approach to the good character decision under section 63(3).
23. He argues, however, that there is no logical connection between what is described as the six-plus points policy and the purpose of section 63(3), namely the maintenance of public confidence in the standards of the judiciary.
24. Mr Swift submits that overall the range and nature of the anomalies created by the six-plus points approach is such that the approach itself is arbitrary. He gives a number of examples. First, the six-plus points approach accepts that some motoring offences do not per se disqualify an applicant on grounds of good character, but applicants with more than six penalty points are (at least normally) disqualified from judicial office. No explanation is given, Mr Swift contends, for the distinction that is drawn between applicants with six penalty points and those with more than six points.
25. Second, there is no correlation between the six-plus points approach and repeat offending. Each "ordinary" driving offence will commonly result in three points. Thus a repeat offender may have no more than six points. Some repeat offenders may have fewer than six points. Speeding offences which are dealt with by requiring the driver to attend a speed awareness course attract no points at all (and, under the 2013 guidance, do not even have to be reported to the JAC).
26. All motoring offences, as Ms Gane observes in her witness statement, are inherently serious matters. That being so, Mr Swift suggests that the JAC could have chosen to adopt a policy under which any driving offence disqualified an applicant, but it has not done so. Alternatively the JAC could have decided that it would have a policy based on an accumulation of points that results in disqualification, rather than drawing the line at six-plus points. This would, he suggests, have been a more explicable distinction to have been introduced.
27. Mr Swift asks why it is consistent with the maintenance of public confidence for a judge (whether salaried or fee paid) to continue to sit even if he has accumulated six penalty points, but maintenance of public confidence requires an applicant with precisely the same driving record to be rejected.
28. The answer to this question, and to the others raised by Mr Swift, is entirely straightforward. It is the JAC that has been given by Parliament the responsibility for administering judicial appointments pursuant to the 2005 Act. The membership of the JAC (comprising both judicial and independent members) is specifically charged with determining issues of good character and has to draw a line somewhere. To that extent, wherever the line is drawn, it is arguable that it will be considered to be arbitrary and certainly by those just on the wrong side of that line. The responsibility, however, is that of the JAC: it must determine the policies that it believes are required to ensure that public confidence in the standards of the judiciary is maintained and to do so in the way that it deems proportionate.
29. Furthermore, there are important differences between disciplining those who hold judicial office, whether full time or part time (for which the JAC has no responsibility) and appointing new judges (for which it does). These not only reflect the different status and impact on full time and part time judges but also the fact that the latter are not then seeking to be appointed to judicial office. In any event, the Guide to Judicial Conduct makes it clear that members of the judiciary must report to the Lord Chief Justice minor motoring offences which result in disqualification, the award of six points (for a single offence) or, if a lesser number of points are awarded, where total points endorsed exceed six. It is then a matter for the Lord Chief Justice and the Lord Chancellor to decide what action, if any, to take. In other words, there is a comparable level of offending which, for those who hold judicial office, triggers the requirement of reporting (which, incidentally, Mr Jones did not follow notwithstanding that he was obliged to do so).
30. Any policy enunciated by the JAC is obviously subject to review on public law grounds and this particular policy is hedged with a discretion (reflected by the word 'normally'). It is sufficient to conclude that, in my judgment, the JAC is entitled to take the view that public confidence in the standards of the judiciary would not be maintained if persons who are appointed to judicial office have committed motoring offences resulting in penalty points at the level identified in the guideline within four years of their appointment. Accordingly, I would reject the Claimant's challenge to the material part of the JAC good character policy on the basis that it does not rationally reflect the purpose pursued by section 63(3) of the 2005 Act.

Ground 2: Proper application of the policy

31. As I have identified, the 2013 guidance is only applicable to exercises launched after 10 July 2013 although it is to be taken into account in earlier exercises still on going.
32. There was in the 2011 guidance no equivalent provision to that contained in paragraph 24 in the 2013 guidance. Specifically there was no stated policy that "if the total number of points currently endorsed on your licence exceeds six, this will also normally prevent you from being selected for judicial appointment".
33. Ms Chan submits that the outcome of the Mr Jones' application would have been the same, whichever version of the guidance was applied. Mr Swift suggests it is difficult to understand why this should be so when the 2011 policy did not contain the six-plus points approach although where the approach to driving offences has been identified (eg in relation to the time lapse following drink-driving offences and reporting of fixed penalty offences more than four years old) the 2013 policy is certainly less stringent.
34. However, although there is no straightforward comparison between the two policy documents in circumstances such as these, the JAC explained in the review decision that:

"… the explicit mention of penalty points currently endorsed on the licence in paragraphs 23 and 24 of the new guidance was a move towards more openness and clarity to help candidates understand better the nature of how the Committee deals with motoring offences. The Committee's decision in your case is consistent with the approach taken to date under the 2011 guidance."

35. It may well be that part of the problem as to which version of the guidance was applied in the present case lies in the confusing and inaccurate observation in the papers before the Committee relating to Mr Jones which recommended rejection of his application under the "new guidance": that must be a reference to the 2013 guidance. In fact, as set out below, the decision letter of 4 December 2013 correctly refers to both the 2011 and the 2013 guidance.
36. The principal submission of Mr Swift on this ground is that there is no evidence in the decision letter, or in the review decision of 12 December 2013, or in the documentation before the Selection and Character Committee on 21 November and 12 December 2013 that the JAC considered the discretion that it has in relation to the six-plus points policy.
37. However, as Ms Gane makes clear in her witness statement (at paragraph 19):

"… it should be emphasised that in the context of convictions, the circumstances which will be taken into account when considering whether the JAC will deviate from its stated guidance on how it will 'normally' treat particular convictions, is limited. Criminal convictions (including motoring) are regarded as inherently serious matters and whilst mitigation which relates to the particular offences will be considered, matters unrelated to the circumstances of the convictions will not usually be capable of outweighing the effect of the convictions."

Mr Swift accepts that in principle it is lawful for the discretion exercised by the JAC to be so limited.

38. Mr Swift confirmed that there was no challenge to the decision on the basis of a failure to provide proper reasons. The complaint is, as I have stated, that the reasons given, or the absence of proper reasons, suggests that the JAC had not considered the discretion it has.
39. The material part of the decision letter states:

"The Commission notes that you currently have seven point endorsed on your drivers licence, having received a court fine and four points for a speeding offence in 2011 and a penalty for a failure to obey a traffic signal in 2012. Following careful consideration of the good character guidance in place before 10 July 2013 and taking account of the current guidance agreed on 10 July 2013, the Commission decided that it could not allow your application to proceed further at this time. Paragraph 24 of the 'good character guidance' states that if the total number of points current endorsed on your licence exceeds six, this will normally prevent you from being selected for judicial appointment. The Commission was of the view that, having taken into account their current guidance, to proceed with your application would not be consistent with the statutory duty under s.63(3) to select only people of good character."

40. The documentation before the Selection and Character Committee on 21 November 2013 included the Claimant's explanation for the four points and £650 fine he received in 2011 for the speeding offence, and that JAC staff confirmed his explanation for the size of the fine. In my view it is clear from the letter of 4 December 2013 that the Commission appreciated it had a discretion to exercise, and that it decided that the facts did not warrant departing from the "normal" position.
41. That the JAC did exercise its discretion is put beyond doubt by the review decision of 12 December 2013. Mr Jones made detailed submissions for the purposes of the review. He complained that there had been no consideration of the discretion available to the JAC to depart from the "normal" position (para 6), and he referred specifically both to his 2011 and 2012 driving offences and to his general driving record (see paras 7 and 8).
42. The material parts of the e-mail of 12 December 2013 informing the Claimant of the JAC's decision on the review states:

"The Selection and Character Committee – comprising Lay, Professional and Judicial commissioners – met today to consider the issues you raised and the exercise was paused in order to allow them to do so. In its review, it considered your representations and your proposal that you should be placed on the s.94 list pending the removal of your driving licence points in the passage of time.

The Committee considered your character declaration again under both the 2011 and 2013 guidance and confirms its decision. The Committee took the view that, whether considered under the 2011 or 2013 guidance, you could not be regarded as being of 'good character' pursuant to the statute. It is important to point out that when examining candidate declarations, the Committee's principal consideration is, as set out in the guidance, the overriding need to maintain public confidence in the highest standards of the judiciary.

It may help to note that the explicit mention of penalty points currently endorsed on the licence in paragraphs 23 and 24 of the new guidance was a move towards more openness and clarity to help candidates understand better the nature of how the Committee deals with motoring offences. The Committee's decision in your case is consistent with the approach taken to date under the 2011 guidance."

43. In my judgment, it is simply inconceivable that, having considered the Claimant's representations, the members of the Committee did not appreciate the nature of the discretion that had to be exercised or that they did not do so. It is equally clear that, in the exercise of its discretion, the JAC decided not to depart from the position it "normally" adopted if the total number of points currently endorsed on an applicant's licence exceeded six.
44. Before leaving this challenge to the decision, I would add two further observations. First, in my view, it was unfortunate that there was some confusion in the documentation provided to the Committee as to which of the two versions of the good character guidance applied to this competition. Further, although it was known to applicants that the 2011 version applied but account was to be taken of the 2013 version, there was no explanation as to how and why that was to be done. On the other hand, it is clear from the evidence that, in reality, the guidance in this area is entirely consistent, that the revisions in relation to motoring offences were to provide greater transparency and clarity as to the way in which the JAC operated its policy in relation to repeated offences and that they did not amount to a change.
45. Secondly, as the JAC has recognised by including paragraph 24 in the current guidance, it is important that candidates be informed as to how the JAC deals with penalty points for motoring offences. That being so, it would have been better if Mr Jones had been given brief reasons in this regard, in particular as to why on the facts of his case the JAC decided in the exercise of its discretion not to depart from the "normal" position.
46. Nevertheless, as I have said, I am satisfied that the JAC did in fact exercise the discretion it had. Bearing in mind the conclusion that I have reached with regard to the lawfulness of the six-plus points policy, I consider that the Committee was entitled on the evidence to conclude that Mr Jones was not of good character for the purposes of section 63(3) of the 2005 Act by reason of his two extant convictions.

Ground 3: Rationality

47. Mr Swift submits that the decision that Mr Jones was not "of good character" for the purposes of section 63(3) was not rational.
48. Mr Jones has been driving for in excess of 40 years. His only other driving offence was in 1972. The two driving offences in 2011 and 2012 are not, Mr Swift submits, indicative of his unwillingness to comply with driving laws which exist to ensure the safety of road users and pedestrians, as Ms Chan suggests. Further Mr Jones continues to sit as a Deputy District Judge. The jurisdiction of a deputy District Judge is materially the same as that of a District Judge. Mr Swift suggests that it defies logic for the JAC to conclude that the maintenance of public confidence would not tolerate Mr Jones' appointment as a judge when he already sits as a judge in the same jurisdiction.
49. I would reject this submission. As I have sought to explain above, in my view, there is a difference between permitting a person to continue to sit as a part time judge (which falls to the Lord Chief Justice and Lord Chancellor) and appointing that person to a full-time position (which is the responsibility of the JAC).
50. Having concluded that the six-plus points policy is lawful and that it was applied in a lawful manner, the Committee considered mitigation relating to the particular offences and I do not consider that the decision Mr Jones was not "of good character" was irrational although, to be fair to Mr Jones, it must be recognised that the context for this conclusion is the legislation and that the phrase must be treated as a term of art. The matters on which Mr Swift relies in support of this submission which were unrelated to the circumstances of the convictions cannot have the effect of making an otherwise rational decision Wednesbury unreasonable.

Conclusion

51. Although I would grant permission to apply for judicial review, for the reasons set out above, I would dismiss the claim. Given the outstanding success that Mr Jones otherwise had in the District Judge competition, however, I conclude by hoping that, as the first of his convictions will fall away later this year, he will consider re-applying when the next competition is launched.

Supperstone J :

52. I agree.