SA, R (on the application of) v Judicial Conduct Investigation Office

MRS JUSTICE STACEY:

1. This matter comes before the court on the claimant's oral renewal application for permission to apply for judicial review of two decisions of the Judicial Conduct Investigation Office ("JCIO") on 7 and 24 June 2024 which dismissed a complaint he had made to them about the conduct of a judicial officeholder (“the impugned decisions”) together with an application for two ancillary orders.

2. Reference is also made to a subsequent decision of Judicial Appointments and Conduct Ombudsman ("JACO") of 4 September 2024 which concluded that the JCIO had carried out the correct and appropriate investigation in order to reach the impugned decisions, but no claim is brought against JACO and its decision of 4 September 2024 is not an impugned decision in this case.

3. The ancillary matters are an anonymity application which I have already dealt with in my earlier judgment, and whether the judicial officeholder about whom the claimant complained to the JCIO which led to the impugned decisions should be joined as an interested party to the proceedings, which I will deal with after this ruling.

4. The factual background is that on 21 February 2024 the claimant made a formal complaint to the JCIO about the conduct of HHJ George at two hearings on 9 October 2023 and 24 November 2023 in the Guildford County Court. It is not necessary to set out the factual background to the cases in Guildford County Court beyond noting that the claimant is a practising barrister and was also a partner of a solicitor's firm at the material time who was representing a client before the Guildford County Court. The issue that resulted in his committal for contempt of court concerned an alleged breach of an undertaking given by him to the court on behalf of his solicitor’s firm at an earlier hearing in the case. The claimant did not attend the hearing of 9 October 2023 and the criticisms made of the judge about that hearing were that she should not have proceeded in his absence and that she should have recused herself from having further involvement in the case.

5. At the hearing on 24 November 2023 before the same judge, she ordered the claimant to be committed to an immediate term of imprisonment of six weeks for the contempt that she had found he had committed. He served half that sentence until 12 December 2023 when the Court of Appeal overturned the judge's order in case number [2023] EWCA Civ 1504 . The Court of Appeal found a number of serious procedural flaws in the way in which the judge below had conducted the hearing. The finding of his contempt was quashed, as was the sentence and he was immediately released from custody. Because of the serious procedural flaws, the Court of Appeal found that it was neither appropriate nor necessary to consider the substantive merits of the application.

6. Ms Horlick KC has listed the flaws identified by the Court of Appeal (Criminal Division) today which included that there were no contempt proceedings against the claimant as the application for contempt had been against a company, Landmark Legal Limited, of which the claimant was a director; the application did not set out the particulars of the contempt; the claimant had not been informed of the right to protection from self-incrimination; or to legal advice; nor had he been advised of the availability of legal aid.

7. The claimant found his three week stay in HMP Wandsworth extremely difficult which was in coronavirus lockdown conditions and he was confined to his cell for 23 hours a day, causing immense disruption to his mental wellbeing as well as his legal practice.

8. After his release he submitted a very detailed complaint about the judge to the JCIO on 21 February 2024 which listed 15 grounds of alleged misconduct by her. In relation to the hearing of 9 October 2023, it was said that she should have recused herself from the proceedings and should not have proceeded with the hearing in the claimant's absence. At the 24 November 2023 hearing, it was said that the judge was wrong to have assumed that the claimant had admitted contempt personally; had wrongly assumed that the claimant appreciated that there was an issue of personal contempt; the judge had not properly distinguished the claimant personally from the firm; that she had failed to consider there might be a conflict of interest between the claimant and the solicitor’s firm; had failed to consider whether the claimant had been properly served with any documents; and had failed to consider whether he had had a reasonable opportunity to seek representation. Further criticisms were that the judge wrongly criticised the claimant for failing to attend the hearing on 9 October 2023; that she failed to adjourn the 24 November 2023 hearing thus giving the claimant insufficient time to consider whether to give evidence; and that her conduct during the hearing fell below expected standards. It was alleged that during the hearing she interrupted him and prevented him from making submissions; she told him to move so that the recording equipment could pick up his voice better; she interrupted his submissions again; she was aggressive and intimidating and did not give him an opportunity to speak at all; that she made findings of fact against him contrary to any evidence or factual background; that she failed to make enquiries as to his personal circumstances before imposing sentence or consider mitigation; that she gave him no opportunity to make submissions, even though she intended to impose a custodial sentence; that she gave no consideration to suspending the sentence; that and she sent him to the cells without allowing him to make a telephone call or collect his belongings, even though she accepted she had no power to restraint him; and that she displayed discourtesy and rudeness towards him throughout the hearing.

9. The JCIO considered the complaint in accordance with its rules and found in its letter of 7 June 2024 (the first impugned decision), that all matters, other than using an aggressive and intimidatory tone against the claimant throughout her dealings with him at the hearing of 24 November 2023, fell outside the scope of judicial misconduct. Instead, they fell within the definition of judicial decisions and case management absent misconduct and were thus rejected. Some of the allegations were also outside the three month JCIO time limit for complaints. The letter explained that although the Court of Appeal, per Lord Justice Baker, had found “that there were serious deficiencies in the procedure adopted on this occasion” (paragraph 43) this was a legal finding, and there was no criticism of the personal conduct of the judge.

10. The second impugned decision contained in the JCIO letter of 27 June 2024 provided the outcome of the initial investigation of the criticism that had been allowed to go forward. The investigator found that the complaint would be dismissed because it was misconceived under rule 23(e) of the Judicial Conduct Rules 2023. The rationale for the decision was this: " I listened to the audio of the hearing from 09.47-10.32 and 10.37-10.55, as described on the first page of the transcript of proceedings for 24 November 2024, (at page 58 of your document titled ‘JCIO Letter of Complaint 21.02.2024’). The judge’s tone was not aggressive or intimidatory in the example you cited, nor was it aggressive or intimidatory at any point during the passages that I listened to. Quite the contrary, the judge’s tone was measured, and straightforward throughout the hearing. The judge did not raise her voice at any time. Her questions and comments were direct and to the point, and the language she used was appropriate throughout the hearing." The law

11. The law is in dispute only in one respect. Starting with the undisputed law, judicial independence is a fundamental constitutional principle which is enshrined by section 3(1) of the Constitutional Reform Act 2005 (" CRA 2005 "). The Lord Chancellor, other ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice, must uphold the continued independence of the judiciary. Powers relating to the discipline of judicial officeholders rest with the Lord Chancellor under Part 4, Chapter 3 of the CRA 2005, in particular section 108(1) to (7). The powers are generally not exercisable unless prescribed procedures have been complied with and sections 115 to 116 CRA 2005 enable the making of regulations about the investigation and determination of allegations of misconduct by judicial officeholders and in relation to reviews and investigations.

12. The relevant regulations are the Judicial Discipline (Prescribed Procedures) Regulations 2023 ("the Regulations"). The JCIO was established under Regulation 4 to support the Lord Chancellor and the Lady Chief Justice in judicial discipline matters.

13. Under Regulation 6(1), subject to one exception which is irrelevant for present purposes, a complaint about an officeholder must be made to the JCIO. Regulation 7 allows the Lady Chief Justice, with the agreement of the Lord Chancellor, to make rules about the process to be applied in respect of complaints, and the relevant rules are the Judicial Conduct Rules 2023 ("the Rules").

14. Rule 8 provides: "A complaint must— … (c) contain an allegation of misconduct on the part of an identified or identifiable person holding an office, which is supported by relevant details as specified in guidance published by the JCIO from time to time."

15. Rule 10 then provides: "The JCIO must not accept a complaint in any case where one or both of the following applies— (a) the complaint does not meet the requirements set out in rules 6 to 9 …" The defendant therefore cannot accept a complaint which discloses no allegation of misconduct on the part of a judge.

16. When a complaint does comply with the requirements of rules 6 to 9, rule 22 prescribes that a complaint must initially be considered by the defendant. Rule 23 states: "The JCIO must dismiss a complaint, or part of a complaint, if it falls into one or more of the following categories— … (c) it is about a judicial decision or judicial case management, and raises no question of misconduct; … [or] (e) it is misconceived …"

17. Under rule 32: "Where the JCIO dismisses a complaint, or part of a complaint, under rule 23 it must inform the complainant and, if they are aware of the complaint, the office holder concerned, of the dismissal and the reasons for it."

18. Where a complaint does not fall to be dismissed under rule 23, rule 24 requires the defendant to make such enquiries as it considers reasonable and proportionate to establish the facts of the case and the defendant enjoys a discretion to determine what enquiries would be reasonable and proportionate in the circumstances.

19. The JCIO guidance is available online and it includes the following statement: "An allegation of misconduct means that your complaint is about a judge's personal behaviour not about a decision or order which they have made or how they have managed a case. It means you believe that a judge's personal behaviour has fallen below the standards of conduct in the Guide to Judicial Conduct."

20. The defendant lists a number of examples in Appendix A on its website of matters likely to be case management or judicial decisions. The examples include bias in a judge’s decision-making, appearing to react more favourably to one person’s evidence than another’s, a judge making an error of law or procedure, a judge making an incorrect order or refusing to make an order, a judge reserving a case to themselves, and a judge expressing opinions about issues or parties related to a case they are hearing.

21. Misconduct is not defined in the Act but judicial guidance has recently been provided by Dove J in Gregory & Anor v JCIO [2025] EWHC 201 (Admin). The issue between the parties on the law referred to in the first sentence of paragraph 11 above is whether Gregory turns specifically on its own facts or if it purports to set down some general observations about the definition of misconduct in the context of the judiciary.

22. Dove J held that “ the term “misconduct” must be construed in the context in which it is used, namely the framework provided by the 2005 Act … Most importantly for these purposes is the key overarching requirement for a judge’s continued independence to be guaranteed by the duties identified in section 3(1) and (6) of the Act . The need for “misconduct” to be read subject to the explicit and critical duty to safeguard judicial independence is consistent with Rule 23(c), which requires a complaint to be dismissed if it relates to a “judicial decision or judicial case management, and raises no question of misconduct”. It is clear that “misconduct” is entirely to be distinguished from judicial decisions and case management, that is to say the judge performing a judicial role. ” He further held at paragraph 49: “Once this distinction is understood it is clear that the first defendant was correct not to accept the claimants’ complaints because they did not comply with Rule 8(c) since on analysis they did not contain allegations of misconduct.” [45].

23. Ms Horlick argues that this was a decision -making process and behaviour by the judge, particularly on 24 November 2023, that was so egregious it should be investigated and is the type of case that must be distinguished on its facts from Gregory . The criticism in the Court of Appeal’s judgment of the judge below in the criminal appeal in this case is trenchant in its terms. The fundamental flaw of there being no contempt application against the claimant is the start of a litany of procedural errors identified by the court. The conduct, whether described as competence or conduct, fell so far below what would be expected of a judicial officeholder and which resulted in the wrongful imprisonment of the claimant, is just the sort of matter that requires a proper investigation by an independent body, such as the JCIO.

24. Mr Line, in opposing the application argues that Gregory makes it very clear in the context of judicial independence, misconduct has to be construed as set out in [45] set out above and it must be read subject to the explicit and critical duty to safeguard judicial independence. It is consistent with rule 23(c) which requires a complaint to be dismissed if it is about a judicial decision and case management that is not misconduct. Analysis and conclusions

25. When considering the nature of the complaints made by the claimant, it is apparent from the wording of the letter of 7 2024 June, that other than the alleged aggressive and intimidating tone, interruptions and bullying behaviour, all 15 allegations were classic examples of judicial decisions and case management that are not apt to be considered as misconduct and fall outside the scope of the JCIO remit and 23(c) and which do not include the taint of misconduct. Dove J was clear in his judgment that “misconduct” is entirely to be distinguished from judicial decisions and case management and the 15 allegations are judicial and case management decisions, not “misconduct”. Taking each criticism in turn, the assertion that the judge should have recused herself on 9 October 2023 is a judicial decision, as was the decision to proceed with the hearing that day and not adjourn it.

26. At the hearing of 24 November 2023, the judge’s assumption that the claimant had admitted contempt personally was found by the Court of Appeal (Criminal Division) to be an error of law, and possibly fact, as was her assumption that the claimant had appreciated that there was an issue of his personal contempt: that is an exercise of judicial judgment, not misconduct. The alleged failure by the judge to distinguish between the claimant personally and the firm was also a judicial decision. So too was not considering if there was a conflict of interest between the claimant and the firm. The Court of Appeal clearly concluded that those were not findings that were open to her, but those were matters for an appeal and not a judicial conduct complaint.

27. Criticism of the judge for not considering or wrongly concluding that the claimant had been served with documents and had had a reasonable opportunity to seek representation, or that it was not necessary for him to do so is an attack on judicial decision making and case management. Criticising a party who has not attended a previous hearing is not an allegation of judicial misconduct. Nor is failing to adjourn a hearing. The question of whether to give more time to decide whether to give evidence is a question of case management and the exercise of judicial discretion, but it is not a matter of judicial misconduct. The criticism of the judge for interrupting the claimant (which was not conceded or borne out by the transcript of the hearing in any event) is not an allegation of judicial misconduct but a criticism of case management. Judges frequently have to interrupt submissions and evidence that is repetitive or irrelevant in order to manage a hearing effectively and in order to control proceedings and comply with the overriding objective.

28. The moving the recording equipment so that it could pick up the claimant’s voice better was a matter of judgecraft and case management. Furthermore, it’s aim was to protect the integrity of the proceedings - and the claimant - to make sure that what he was saying was being properly recorded. All the matters complained of, other than the aggressive and intimidating behaviour, discourtesy and rudeness, were all clearly matters that fall outside the definition of misconduct.

29. The criticism of alleged aggressive and intimidatory behaviour during the hearing through the interactions by the judge with the claimant was properly subject to the first level of investigation by the JCIO. It was rejected as misconceived. Having read the transcript of the hearing in the bundle, I am satisfied there is no public law error in the decision to conclude that it was a misconceived complaint. The decision taker listened to the audio tape and read the transcript and concluded that there was no evidence of the judicial misconduct alleged of intimidation and aggression in the way in which the judge conducted herself in her personal conduct in her interactions with the claimant during the hearing. The decision taker’s conclusion is entirely consistent with the written transcript before the court and cannot be challenged as a fact in the absence of some obvious glaring error and there are none. The defendant complied with and followed its own rules of procedure in the handling of the complaint.

30. I find that the application for judicial review is not arguable, that the matters complained of largely fall well outside any possible definition of judicial misconduct and the allegations that could, in theory, amount to judicial misconduct, are misconceived because the transcript of the hearing demonstrates that the judge did not behave in the way that was alleged. It is not arguable that the decisions made were unlawful, irrational or procedurally unfair. By reference to the specific grounds of appeal, the defendant has applied the correct definition of “misconduct”; the correct test of “case management” and “judicial decision”; the allegations raised were not of case management or judicial decision; and the defendant has applied the correct test or criteria in its assessment.

31. Since it is not arguable the application is refused. Limitation

32. There was a second challenge by Mr Line on time limits. I understand the importance of this matter to the claimant and his claim was lodged one day before the expiry of the time limit and, albeit the statement of facts and grounds were not submitted until some time thereafter, and had the case been reasonably arguable I would have granted an extension of time. Addition of an interested party

33. The remaining ancillary matter is the issue of the joining of the judge as an interested party. The single judge who considered the matter on the papers directed her to be joined, but the claimant objects. I reject the claimant's arguments for opposing the judicial officeholder to be joined: the judge who is the subject of the claimant’s criticism is clearly an interested party. I note that in the Gregory case the judicial officeholders were all joined as interested parties. HHJ George self-evidently has an interest in the case because if the claimant obtains the order he seeks there would be a quashing of the defendant’s decision dismissing the case without referring it to the judicial office holder. He seeks a mandatory order for the defendant to accept and investigate all of the allegations in the complaint letter of 21 February 2024. If it were to be granted it could affect the proposed interested party. As I understand it, she has not been notified of the complaint as yet. However, since permission is refused, it is not necessary for me to order her to be joined as a party. The issue may, of course, be revisited in the event that there is a successful appeal to the Court of Appeal against this refusal of permission. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]