July 27, 2025
R (Thomas) v Judicial Appointments Commission (4A Law Ltd intervening) [2025] EWCA Civ 912
Introduction
In R (Thomas) v Judicial Appointments Commission (4A Law Ltd intervening) [2025] EWCA Civ 912, the Court of Appeal provided landmark guidance on the statutory scheme and rules of fairness governing the appointment of judges in England and Wales.
The Court of Appeal (Sir Geoffrey Vos, Master of the Rolls, Lord Justice Underhill, and Lady Justice Nicola Davies) applied key principles of procedural fairness. It clarified the application and scope of the disclosure obligations of the Judicial Appointments Commissions (the JAC) under section 139 of the Constitutional Reform Act 2005 (the CRA 2005).
Arfan Khan, leading Tahir Ashraf, represented 4A Law Ltd, in an unprecedented oral and written public interest intervention, permitted by the Court at both the permission to intervene stage and at the oral hearing.
Given that the case proceeded by way of judicial review rather than an appeal, the Court did not broadcast the oral hearing, in contrast to the earlier permission to appeal hearing, where limited permission was granted.
The public can access the reported coverage, including the 4A Law Ltd press release, which describes Arfan Khan’s work as “immensely exceptional”, through the following links:
https://4alaw.com/court-of-appeal-says-no-to-secret-soundings-in-judicial-appointments/
Background
This case marked the first occasion on which the Court of Appeal scrutinised the legality of the JAC’s long-standing practice of obtaining confidential third-party feedback—commonly referred to as “sub-consultations”—in the course of judicial selection.
The Claimant, a salaried District Judge, applied for appointment as a Circuit Judge in both the criminal and civil jurisdictions during the JAC’s 2021/2022 selection exercise. Having attended a structured interview on selection day, which included questions on her approach to COVID-19 precautions, she was graded “C” (selectable) in both jurisdictions. That outcome reflected mixed statutory consultation feedback, but was ultimately endorsed by the assigned commissioner of the JAC’s Selection and Character Committee (SCC), who, alongside the panel, considered her performance sufficient for appointment.
However, the SCC later reversed this recommendation. The assigned commissioner altered her view upon a second reading of the materials, concluding that certain adverse statutory consultation comments resonated with concerns expressed by the interview panel. The Claimant was accordingly downgraded to “D” (not presently selectable). Crucially, the negative statutory feedback was not disclosed to her.
The Claimant suspected that the feedback may have come from a senior judge against whom she had previously lodged a bullying complaint, and whom she believed was consulted through the JAC’s undisclosed sub-consultation process.
Following the decision, the Claimant received two conflicting feedback letters. On 6 May 2022, she was informed that she was “selectable” but had not been appointed due to competition. Yet, on 24 May 2022, a second letter stated she was “not presently selectable”, citing insufficient evidence of competency in the criterion “Working and Communicating with Others” — a criterion the panel had previously found she satisfied.
Upon seeking clarification, the JAC acknowledged that the SCC had disagreed with the interview panel’s assessment and had downgraded her grading from “selectable” to “not presently selectable” accordingly. Despite further requests for disclosure, no substantive explanation or documents were forthcoming. As a result, the Claimant issued judicial review proceedings in July 2022.
Although the High Court initially refused permission, the Court of Appeal subsequently granted limited permission in June 2024 and retained the case for determination in the Court of Appeal.
The Legal Framework
The Court considered three legal provisions:
1. Section 139, Constitutional Reform Act 2005 (CRA 2005) – governs the confidentiality of candidate information and its lawful disclosure.
2. Section 88, CRA 2005 – requires the JAC to determine the selection process.
3. Regulation 30, Judicial Appointments Regulations 2013 – provides for statutory consultation by a specified consultee (Regulation 30).
Procedural Fairness
The Court reaffirmed that the principles of procedural fairness, as set out by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, apply to the exercise of statutory powers such as those exercised by the Judicial Appointments Commission (JAC) (J [46]-[47]). In Doody, it was held that fairness requires an individual to know the gist of the case he has to answer and that fairness is inherently flexible and must be assessed contextually. The Court held that the JAC could not lawfully adopt a rigid policy permitting disclosure only in exceptional circumstances (J 72-73). Such an approach constituted an impermissible fetter on its discretion (J [73], [86], [88] (ii)).
The Court also applied the reasoning of Singh LJ in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, affirming the well-established principles that procedural fairness, grounded in the principles of natural justice (bias or the opportunity to be heard), serves to prevent legal error in public decision-making. The Court held that the JAC ought, in fairness, to inform candidates in advance that comments will be sought about them from the Consultee and sub-consultees (J [19] (vi) and J [87]).
It held that candidates must be informed in general terms of how sub-consultations work and the categories of individuals who may be sub-consulted; it is insufficient to provide an online link (J [82]). The JAC, the Court emphasised, is under a duty to act fairly when using negative material [J [79].
Substantive fairness and abuse of power
The Court, citing Singh LJ in Talpada, affirmed the doctrine of substantive fairness, which is important in ensuring that a public authority acts lawfully and, in particular, does not abuse the powers which have been entrusted to it by Parliament (J [84]). However, the Court held (applying the reasoning in Talpada) that the doctrine of substantive fairness does not grant courts broad discretion to overturn executive decisions that are non-justiciable.
Under this doctrine, only substantive unfairness that amounts to an abuse of power is justiciable, and the court’s role is principally to “correct errors of law made by public authorities and ensure that fair procedures have been complied with” (J [81] referring to Talpada). This is intended to ensure the separation of powers so that the Courts do not encroach on executive decisions which are non-justiciable. This legal certainty—ensuring predictable rules—is essential to the rule of law, just as much as correcting abuse of power (J [85] referring to Talpada).
The Court found no basis for concluding that the decision of the JAC not to appoint could be quashed on substantive fairness grounds following the reasoning in Talpada. Whilst the unfair failure to inform candidates in advance about the sub-consultation process was wrong, this was not an extreme case in which the Court should intervene to exceptionally quash the decision on substantive fairness grounds (J [85]).
Regulation 30
The Court held that, although Regulation 30 refers to a single statutory consultee, it does not forbid that consultee from seeking input from others (J [19] (i)-(ii) J [55] and J [57). Therefore, the JAC’s use of sub-consultees was not inherently unlawful.
However, the Court found the JAC’s rigid policy of non-disclosure—only allowing disclosure in “exceptional” cases — to be an unlawful fetter on its discretion. The JAC’s failure to inform candidates that wider third-party consultations might occur was also unfair, as candidates are entitled to know in advance who may provide information.
The Master of the Rolls held that there was serious doubt about whether the consultation contemplated by regulation 30 is the kind of statutory consultation undertaken by the JAC. It does not, however, matter because the kind of consultation and sub-consultation undertaken by the JAC is lawful under section 88 (1) (J 19 (i), J [55]-[56]). The Master of the Rolls held that the JAC has consistently used sub-consultations to solicit feedback on candidate competencies rather than on the demands of the office.
The decision of Lord Justice Underhill on Regulation 30
Lord Justice Underhill rejected the JAC’s reliance on Regulation 30 to justify its practice of obtaining third-party feedback on judicial candidates (J [91]-[95]). Although described as a provision for “Consultation,” the regulation, on its proper construction, authorises only direct consultation with a single individual—namely, the Lord Chief Justice or a person with “relevant experience” of the office in question (J [91]-[92]).
His Lordship held that the phrase “relevant experience” is best understood as experience comparable to holding the judicial office itself (J [92). But even if “relevant experience” could be stretched to encompass experience of the qualities of the candidates (as suggested by the Master of the Rolls), that still does not help because, as the Master of the Rolls points out, the SPJ or their deputy will have no personal knowledge of many or most of the candidates which the Deputy Senior Presiding Judge (DSPJ) does not ordinarily possess: (J [92]). In practice, consultees such as the DSPJ operate as intermediaries, soliciting views from others—something Regulation 30 does not permit (J [92]).
However, his Lordship agreed that, on the available materials, section 88 supplied an alternative basis that did not affect his Lordship’s agreement with the Master of the Rolls on the lawfulness of such exercises based on the rules of fairness, though Regulation 30 was in equivalent form.
Consequences of the above guidance
The Court granted the judge the following landmark declarations:
1. The Judicial Appointments Commission (JAC) must not unlawfully restrict its discretion by limiting disclosure of such information, or its gist, to only “exceptional circumstances.”
2. To ensure a fair selection process under section 88 of the Act, the JAC is required to inform candidates in advance of the categories of individuals from whom it may seek views or information during the selection process. Transparency and fairness are essential to lawful decision-making.
Section 139 of the CRA 2005
The Court of Appeal held that section 139 (5) of the CRA 2005 does not impose an absolute bar on the disclosure of adverse comments received during the judicial appointments process. The Court held that consent from the information source is not required where disclosure is “necessary” for the JAC to fulfil its statutory functions under section 139 (4) (b) (J [19 (iii)). Section 139 (5) is not a standalone requirement overriding the broader statutory framework.
The Court identified five lawful responses available to the JAC when handling negative material: (1) ignore it, (2) test it indirectly at interview (i.e. subject to the requirements of fairness – emphasis added in brackets), (3) disclose a summary or gist, (4) seek the informant’s consent for full disclosure, and (5) disclose without consent, if necessary, under section 139 (4) (J [71]). The JAC’s refusal to consider all options was held to be unlawful.
Lord Justice Underhill’s decision on s.139
Lord Justice Underhill provided guidance on the construction of section 139 (J [96]-[100]): subsection (1) establishes the general rule of confidentiality; subsections (2)–(3) define its scope; subsection (4) lists exceptions based on lawful authority. If one of these exceptions applies, disclosure is permitted. These exceptions are alternative and include disclosure necessary for judicial functions, disciplinary actions, or legal proceedings, regardless of consent, and disclosure with consent.
However, because subsection (5) refers back through subsection (3) to the definition of “confidential information” and ultimately to subsection (1), it remains subject to the lawful exceptions in subsection (4). Thus, subsection (5) does not override the lawful exceptions but qualifies how confidentiality is managed, particularly protecting sources from identification unless disclosure is necessary under one of the lawful authority grounds.
Lady Justice Nicola Davies agreed with both judgments, preferring the conclusions of the Master of the Rolls on Regulation 30.
Consequences of the above guidance
The Court proceeded to grant the following landmark declaration:
1. Section 139(5) of the Constitutional Reform Act 2005 does not bar the disclosure of information provided by one identifiable individual about another, where section 139 (4) applies.
Party representation
Ben Collins KC and Nicola Newbegin (instructed by RRM Law Limited) for the judge
Sir James Eadie KC, Robert Moretto and Natasha Simonsen (instructed by the Government Legal Department) for the Defendant/Respondent (the JAC)
Arfan Khan and Tahir Ashraf (instructed by 4A Law Limited) for the Intervener (the Intervener)
The judgment can be accessed through the following link: