Judge: “Failures endemic” at Judicial Appointments Commission

• BARNIE CHOUDHURY
• 22 April, 2023

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By: BARNIE CHOUDHURY

JUDGES are sharing so-called “live questions” used in recruitment exercises with consultants offering to coach candidates to get top judicial appointments, a tribunal has heard from a senior south Asian judge. 

On the second day of the online hearing, Judge Abbas Mithani KC, suggested the current process could be open to abuse.

It emerged that the Judicial Appointments Commission [JAC] uses “a bank of questions” which are swapped around for different recruitment dates.

During cross examination of the JAC’s head of corporate services, Ian Thomson, Mithani asked, “It is a fallacy, isn’t it Mr Thomson, to assume that those who have been successful or unsuccessful in the past will not wish to share such information as they are able to with these consultancy organisations?”

The judge heading the General Regulatory Chamber hearing, Lynn Griffin, asked whether Mithani had any evidence for his allegations.

He had not included any evidence because it would mean naming some of the consultancies which he “didn’t think was right”, he responded.

Possible abuse

The designated civil judge for the West Midlands and Warwickshire, also accused the body which appoints members to the judiciary of allowing some candidates to have an advantage over others.

The tribunal is determining whether the JAC and the Information Commissioner’s Office [ICO] were wrong to withhold material sought by Mithani through three of his freedom of information requests. The judge wanted the information to investigate whether there was racial discrimination and gender bias when it came to judicial appointments.

The tribunal heard that in one part of the exercise, candidates are asked to answer scenario questions.

In a detailed cross examination, Mithani took Thomson through evidence of how candidates who had previously applied to become a judge and failed could be given the same questions when they reapplied.

“A applies in the 2015 resident judge competition,” he surmised, “he’s given an interview and refused.

“Three years later, he applies for an identical position either in that circuit or another circuit.

“Are you saying that the JAC will go back to see whether he has applied in the previous exercise?”

Thomson told the three-member panel that while the JAC would not look at the records of the individual applicants, it would not repeat the same questions in successive job competitions in the same region.

He said, “I would imagine if, for example, that only two people applied for a particular exercise, which was four years apart, and people were aware of that there is a connection, the information is not finalised until the last possible moment, things could alter.

“That’s why we have reserve situational questions that we can use.

“But I don’t think we would look back on the candidates because that would be unfair looking back because a candidate should have the right to apply when they feel they are suitable.”

Thomson conceded that it was possible that someone from the selection team could recognise a candidate who had previously applied for the same role.

In that case, he said, the team would decide the “whether the situational question is appropriate”.

Endemic failures

In a testy exchange, Mithani asked Thomson whether he “seriously expected” the panel or him to believe that the JAC relied on the memories of staff members to recognise repeat candidates.

The head of corporate services maintained that in certain situations, such as the team which organises selection processes for senior leaders, where the numbers were few, then JAC staff would remember those who had applied before.

“In any selection exercise,” argued Mithani, “whether it’s for a senior leadership position, circuit judge, district judge, or deputy district judge, if that situational question is used again, it is inconceivable that the staff would be able to recall them.”

He continued that there were “failures which are endemic at the JAC” and that it “pays lip service to the regulations and the provisions which govern it.”

Counsel for the JAC, Natasha Simonsen reiterated her contention that Mithani’s allegations were “serious, unsubstantiated and baseless”.

In re-examining Thomson, the barrister asked whether the JAC or he had misled the ICO, or whether “there was some sort of a cover up”, or whether he was “trying to hide anything”, to which he said no.

The Information Commissioner’s Office is not taking part in this tribunal, which is expected to resume in June.

Also read: Judicial head “guilty of gross negligence and deliberate recklessness”