Types of investigation
The Ombudsman might investigate complaints against the Office for Judicial Complaints (OJC), Advisory Committees, Tribunals or the Judicial Appointments Commission (JAC) (or any other party involved in handling of the initial complaint) alleging issues such as:
giving inaccurate information
being prejudiced against a complainant or a judge
seriously under- or over-estimating the seriousness of a complaint
failing to respond in a reasonable timescale
not responding to a complaint in accordance with laid down procedures
Judicial Appointment Complaints
The Ombudsman will not investigate judicial appointments complaints from:
anyone other than candidates for judicial office
candidates in relation to anything other than the competition for which they were a candidate
candidates who do not claim to have been adversely affected
The Ombudsman may decline to take up a judicial appointment complaint if the complainant has not already complained to the JAC (or to the Ministry of Justice in relation to magistrate appointments).
The Ombudsman does not have to take up a complaint made more that twenty eight days after the matter complained of, but may do so at any time if he considers it appropriate.
Judicial conduct complaints
The Ombudsman will not investigate judicial conduct complaints:
- made more than twenty eight days after it can reasonably be expected that the letter informing the complainant of the outcome of the original complaint has been received. But the Ombudsman might investigate a complaint made outside the twenty eight days if the Ombudsman considers it appropriate, or while the original complaint is still being considered if the complaint is one of undue delay
- not already considered by the OJC, except where the complaint is that the OJC has taken too long to reach a conclusion or the complaint relates to a magistrate or tribunal conduct complaint about the handling by a local advisory committee or tribunal president.
Appointment complaint case studies
Case Study 1
One case concerned an unsuccessful application for appointment as a judge. The complainant was interviewed but not recommended for appointment as other applicants performed better. The complainant felt that his application was treated unfairly on the basis that, inter alia, three different panels conducted the interviews. The complainant felt that this had an adverse impact on consistency.
I upheld this part of the complaint because I found a significant discrepancy in the way one of the three panels had approached its task and there was clear evidence that this might well have affected the outcome. I recommended that the complainant be placed on the reserve list for consideration, along with other reserve candidates, should any other vacancies arise. The recommendation was accepted; having been placed on the reserve list, the candidate was subsequently offered an appointment.
Case Study 2
The complainant considered that the JAC had not properly handled his complaint to them about perceived unfairness in relation to his interview. He had been asked whether he held another particular judicial office as a means of widening his experience and, when he replied in the negative, was asked why not; he replied that he had been unsuccessful in applying in the past. Following the interview, the complainant challenged this question on the basis that it was not relevant to the competences for the post he had applied for. The JAC accepted that the question about why he did not hold that other office had been inappropriate, but did not accept that it had been wrong to ask whether he had held the office. They apologised, but confirmed that the panel had not been influenced by his answer to the second question in reaching their decision not to recommend him for appointment.
I did not uphold this complaint. I appreciated the complainant’s concern that he was asked a technically inappropriate question during the interview, and why this had caused him to question the fairness of the selection process. I also noted that the JAC’s guidance for interviewers emphasised the need to question applicants only on relevant competences. In this case, the complainant had been asked one inappropriate question which he challenged. He subsequently received an apology. I considered the response to his complaint to be reasonable and was satisfied that the JAC had taken appropriate steps to assure themselves that the complainant’s response to the inappropriate question had not been taken into account by the interview panel in reaching their conclusions about hissuitability for appointment.
Case Study 3
The complainant was concerned that he had been rejected at the shortlisting stage and complained that disproportionate weight had been placed on the self-assessment; candidates who had attended training on the application process were at an advantage; there should have been concern about the gender divide in applicants and interviewees; the ratio of interviewee to post was too low; feedback was deficient; and the JAC had not contacted a different referee as they had been requested.
I did not uphold the complaint as I found that the JAC’s decision took account of references and relevant evidence contained in the self-assessment. I also found no evidence to indicate that selection was not entirely on merit. I agreed with the complainant that candidates who had arranged private training for themselves may well have been at an advantage, but there was nothing to have prevented the complainant from doing the same. I took the view that it was for the JAC to decide what ratio of interviewees to posts available was appropriate and was content that the JAC used its discretion appropriately in selecting the number of applicants to interview in this selection exercise. I found that the feedback given to the complainant was sufficient and that, although there was an administrative error in connection with one of his referees brought about by a request for a change by the complainant at the very last minute, the JAC had apologised. I concluded that this did not constitute maladministration.
Case Study 4
The complainant was concerned that the JAC had given inaccurate information about the eligibility criteria for appointment in a particular selection exercise. The JAC had subsequently corrected the error, but this had reduced the time available to the complainant for the submission of his application. In addition, the complainant had not been invited for interview and, on receipt of feedback, felt that the information he was given suggested that weight had been given to factors not in the advertised competencies.
I found a number of problems with the handling of this complainant’s application. In particular, although the advertisement for the selection exercise was accurate, an official gave incorrect information about eligibility when a colleague of the complainant made an enquiry. Once the mistake came to light, the official issued an apology and gave the complainant an extension for the submission of his application. There were conflicting views about whether this extension was sufficient, although it was my view that the JAC should have been prepared to offer a longer extension. With regard to the provision of feedback, I was content that the sift panel did not take account of any inappropriate factors when considering whether to invite the complainant to interview, although I could see how the wording of the feedback to the complainant had led to a misunderstanding. I was nevertheless concerned that there was only limited evidence available about the processes that the JAC had followed.
In the round, it was my view that the JAC’s actions did not amount to maladministration and I did not, therefore, uphold the complaint. However, I did make suggestions about where the JAC might make improvements for the future. I recommended that the JAC review the process by which sift decisions are noted to ensure that there is an adequate record to show that an application has been assessed appropriately against the given criteria. In addition, this case highlighted the obvious need for officials to be familiar with the legislative eligibility criteria for the selection exercises on which they are working.
In response, the JAC told me that they had significantly enhanced their auditing and record keeping systems, including the introduction of standard templates for use by panels. In addition, panels have received training which stresses the importance of feedback.
Case Study 5
I considered a complaint about the then Department for constitutional Affairs (DCA). The complainant, whose application had been rejected at sift on the basis that he had not demonstrated the competency to a required level, pointed out to me that this was inconsistent with the decision of the panel for a previous competition (comprising the same members) for which the candidate had supplied identical evidence against identical competencies. In that competition the candidate had been invited for interview where he had been classed as a very good candidate but not offered appointment.
I upheld this complaint as I concluded that the difference was most readily explained by the panel placing considerable weight on a response from an automatic consultee which raised irrelevant factors and should have been disregarded. I also concluded that the panel did not take account of a statement that had been provided concerning the candidate’s visibility to automatic consultees. However, there is nothing wrong, in principle, with selection panels reaching different conclusions as the overall standard of candidates in each competition is variable.
I did not uphold other aspects of this complaint, including the candidate’s suggestion that, having performed well at interview in a previous competition, he should have been offered a place from the Reserve List when it became clear that none of the applicants would be invited for interview.
I recommended that the DCA write to the complainant to apologise for the panel’s errors in assessing his application, and acknowledge that this may have had an impact on its outcome. I did not make any procedural recommendations, as responsibility for future competitions has passed to the JAC, which has introduced substantially different processes for the assessment of candidates for judicial appointment. I did however forward a copy of my report to Baroness Prashar, the Chairman of the JAC, in case my findings were of interest to her.
Conduct complaint case studies:
Case Study 1
A complainant stated that the OJC had failed to conduct a fair and independent investigation of his allegation into a Judge’s behaviour. The OJC had invited the Judge to comment on his allegations but, in coming to a decision to ‘dismiss’ on the basis that the complaint was ‘untrue, mistaken or misconceived’, the OJC appeared simply to prefer the Judge’s version of the hearing, without conducting any independent verification (e.g. listening to the tape of the hearing).
I upheld this part of the complaint. It was my view that the OJC should have taken steps to verify what had happened before deciding between the conflicting recollections of the complainant and the Judge. I also recommended that guidelines and procedures should be established to that effect. The OJC revisited the complaint and agreed to establish appropriate guidelines for the future.
Case Study 2
I received a complaint about the OJC which was within my remit, but written in malicious, racist and abusive language.
I rejected the complaint, using my discretion under section 110(5) of the Constitutional Reform Act 2005, which entitles me to refuse to investigate a complaint if I do not feel that it is in an acceptable form. I explained to the complainant that I would be happy to investigate his concerns if they were couched in temperate terms.
Case Study 3
The complainant was concerned, inter alia, that the OJC had failed to conduct an independent investigation into his original complaint. He considered that the OJC had appeared simply to prefer the judge’s version of events to his.
I upheld this aspect of the complaint as I found that the OJC had failed to take steps independently to verify what happened before deciding between the conflicting recollections of the complainant and the judge. My statutory powers include setting aside a determination by the OJC if I believe that failings in the investigative process make the original determination unreliable. I did not need to take this action in this case because the OJC agreed to reopen its investigation into the original complaint. I did, however, recommend that the complainant be reimbursed for the costs that he had incurred in obtaining a transcript of his hearing. At the OJC’s suggestion, he had taken his own steps to provide independent verification of what had happened at the hearing by obtaining the transcript at his own expense. It was my view that this was a cost he had borne as a result of the OJC’s failure to conduct a demonstrably independent investigation and I was therefore pleased that it agreed to reimburse him fully.
Case Study 4
The complainant raised concerns with me about the way in which the OJC and a Magistrates’ Advisory Committee had refused to investigate the issues he had raised, namely that the OJC had given him inconsistent advice and taken too long to deal with his complaint.
I partially upheld this complaint in relation to the complainant’s concerns about delay. I was satisfied that the OJC and the Magistrates’ Advisory Committee followed appropriate procedures in concluding that they could not deal with the matters which the complainant had raised. However, I was concerned that it took 5 months to inform him of the outcome. Investigations into the personal conduct of judicial office holders can be complex and may take many months, but this case was straightforward and there was unnecessary delay to a degree that amounted to maladministration. I was therefore pleased that the OJC agreed to apologise to the complainant and that it had taken steps to improve the management of cases.
Case Study 5
The complainant asked me to look at how a Tribunal President had handled his original complaint. He was concerned that not all the issues he had raised had been looked at; the complaint had not been taken seriously; it had taken too long to resolve; and published procedures had not been followed correctly.
I partially upheld this complaint. I found that the tribunal had failed to inform the complainant that an investigation could not be taken forward whilst his tribunal case was still open, even though it was also telling him to contact the OJC. I could therefore understand why he believed that aspects of the complaint had not been dealt with and that it had not been taken seriously. I did not recommend any redress in this case as, once the litigation finished, the President was able to conclude his investigation of the complaint. However, my investigation highlighted a degree of confusion concerning the interface between the OJC and this particular tribunal and I was pleased that the OJC agreed to clarify the position for the future. In addition, it brought to light some inconsistencies between the rules and guidance for dealing with complaints in tribunals. The OJC confirmed that it would take this issue forward as part of its review of the rules and regulations governing the judicial disciplinary functions.
Case Study 6
The complainant raised a number of concerns about the OJC’s actions, including that it was wrong for the OJC to have implied in their communication with the complainant that the caseworker had listened to the tape, when it was only the judge who had listened to the tape, when forming his response to the OJC.
I found, in this instance, that the OJC had initially dismissed the complaint on the basis that the issues raised related to a judicial decision or judicial case management and raised no question of misconduct. The OJC subsequently agreed that some of the points raised might call into question the judge’s personal conduct but that the concerns, even if substantiated, would not warrant disciplinary action.
It is essential that the OJC seek to independently verify what happened in all cases where the complainants’ comments about a judge’s personal conduct are at odds with the recollection of a judicial office holder complained about and where the resolution of any discrepancy might have a material bearing on the outcome of the complaint. However, decisions as to whether to listen to tapes must reflect the seriousness of the concerns and I agreed with the OJC that there would be no point in seeking independent verification of comments which, even if substantiated, would not warrant disciplinary action.
I did not uphold this complaint as I was satisfied that, overall, the decision to dismiss the original complaint was based on appropriate evidence and was consistent with legislation and guidance. I did, however, have concerns about the content of the OJC’s letters to the complainant as I believed they failed to convey the basis on which his complaint had been dismissed and also commented on matters outside the OJC’s remit. I considered that these issues may have caused him to believe that the process by which his complaint had been considered was inappropriate. I was therefore pleased to be informed that the OJC had launched a training initiative to highlight, among other things, the need for caseworkers to provide more details about how decisions have been reached.