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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lonsdale, R (on the application of) v The Judicial Appointments and Conduct Ombudsman  EWHC 2404 (Admin) (17 September 2019)
Cite as:  EWHC 2404 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
|- and -
|THE JUDICIAL APPOINTMENTS AND CONDUCT OMBUDSMAN
Iain Steele (instructed by The Government Legal Department) for the Defendant
Hearing date: 9 April 2019
Crown Copyright ©
Anthony Elleray QC Deputy High Court Judge :
(1) The Judge's failure to recuse himself.
(2) The Judge sat as a judge in his own cause and in breach of the rule that no-one should act in his own cause.
(3) The Judge should have recused himself from hearing the case as he was not capable of being impartial (given his past services on the Bar Council and the Bar Standards Board Committees).
(4) The Judge had unlawfully entered the arena as he made up three grounds for dismissing the application for permission to appeal which were allegedly untrue and which he allegedly could not have believed in: she complained that bad points made by the Judge against the prospects of her appeal could not have been held honestly.
(5) The Judge had indicated to her on the oral permission hearing that she should have placed on record matters leading to her recording of further matters in writing. Her point was that her further submissions were ignored in relation to the permission to appeal decision and that his subsequent rejection of the re-opening of the matter asserting that she had not suffered from "real injustice" could not properly have been held.
(6) The Judge acted towards her in a hostile and misogynistic and discriminatory manner. She placed reliance on her being a woman of the same age as the Judge and having hard times in recent years (the Disciplinary Tribunal proceedings, her financial hardship affected by a wrongful costs order and the need to care for her elderly mother). Further, she relied upon regard by the Judge to her retirement from the Bar.
"unable to investigate, challenge or question a Judge's decision or case handling. This is because in line with their case management functions, Judges may decide what evidence they wish to consider and the weight that should be applied to the evidence. This discretion extends to determining whether an application should be struck out. Please also note that it is not possible to guarantee in advance which Judge will hear a particular case unless a Judge has ordered that a case should be reserved to him. Members of the public are not permitted to pick and choose in advance which Judges they would like to preside over a matter. While it is always open to a party in a case to apply to the Judge to recuse himself from hearing the case, whether to agree to such an application is a matter for the Judge concerned … It might help if I explain that Judges are constitutionally independent. This means that they are entitled to make decisions and manage hearings free from outside interference by officials (including this office), Government ministers or other Judges. This applies regardless of how obvious it might seem to the complainant that the judicial officeholder's decisions and case management were flawed … Judicial decisions can only be challenged through the courts. A judicial disciplinary process cannot be used as an alternative method of challenge."
The letter of 10 October 2017 went on to point out to Ms Lonsdale that she could complain to the Ombudsman if she believed that the JCIO handled her complaint incorrectly:
"The Ombudsman does not have the power to investigate your original complaint, but he can consider how we have handled it."
"It is a very sad state of affairs that the body looking into complaints cannot read and understand the complaint. I shall take all course open to me, including judicial review if that course is open to me."
"The role of the Ombudsman is to conduct an investigation into the process by which the JCIO … handle investigations into complaints about the personal conduct of judicial officeholders, and to consider whether such investigations are conducted fairly and appropriately in accordance with set procedures. The Ombudsman is not an appeal mechanism and he cannot look into the original complaint, comment on the aspects of the Court proceedings nor the conclusions reached by the JCIO in the investigation of the complaint."
He attached a copy of the Ombudsman Complaint Booklet which sets out his role and remit in greater detail. He observed:
"It is therefore essential that you follow the suggested advice and support your complaint with specific examples of how the investigation into your complaint was not properly handled."
"3. Ms Lonsdale complained to me about the JCIO's assessment that her complaint did not contain an allegation of misconduct. She felt that the JCIO had not considered, read or understood her complaint because:
- The reason they had provided for rejecting her concerns were 'bad in law and inapplicable to the facts of [her] case and situation'; and
- The points she had outlined to the JCIO raised concerns of misconduct and should have been considered and investigated.
4. In terms of redress, Ms Lonsdale has asked that:
'The decision of the JCIO be quashed and that they be directed to consider each of my complaints and that the Ombudsman make such consequential directions as he sees fit.'
5. I have not upheld Ms Lonsdale's complaint as I am satisfied the JCIO investigated the complaint in accordance with the relevant legislation and guidance …
11. Ms Lonsdale complained to me that the point she had outlined to the JCIO raised concerns of misconduct and should have been considered and investigated.
12. Ms Lonsdale acknowledged that not every judgment on recusal would amount to misconduct, but disagreed with the JCIO's assertion that Briggs LJ's failure to recuse himself was not something it could consider. She suggested to me that the conduct of a Judge and the way the recusal was dealt with might amount to misconduct. Ms Lonsdale believed that Briggs LJ's judgment in this instance and his failure to provide her with an opportunity to make submissions on his suitability amounted to misconduct.
13. Ms Lonsdale complained to me that the reasons the JCIO provided for rejecting her complaint were 'bad in law and inapplicable to the facts of [her] case and situation.' I note that the JCIO suggestion that it was open to a party to apply to the Judge to recuse themselves was not applicable to the circumstances of Ms Lonsdale's case. However, she had not explicitly told the JCIO that she had not had the opportunity to apply for Briggs LJ to recuse himself. In any event, this did not change the fact that the JCIO correctly advised her that it was for a Judge to decide whether to recuse himself from a case. I cannot say whether Article 6 of the European Convention for the Protection of Human Rights, which gives claimants a right to a fair trial, ever makes a recusal mandatory or automatic. However, I am satisfied that the JCIO's assessment that Ms Lonsdale did not provide any evidence that did not relate to a judicial decision and judicial case management the JCIO appropriately advised her that, as her concerns related to judicial decisions, it was not something it would consider. This was consistent with the guidance provided on the JCIO's website which concludes the question of recusal as an example of something it cannot investigate. I do not find any maladministration in its approach.
14. Ms Lonsdale felt that the JCIO had failed to appreciate the context in which her complaint was made and that it had, therefore, been wrongly dismissed without consideration. For example, Ms Lonsdale complained to me that the JCIO's statement that judicial decisions can only be challenged through the courts did not provide her with an answer to her concerns as there was no right of appeal against a CPR 52.30 decision. Whilst the JCIO might helpfully have acknowledged that there is no right of appeal, the JCIO staff do not need to be legally trained and they do not provide advice on core procedure. I would not expect them to have any in depth knowledge of approved procedures and Ms Lonsdale did not say in her correspondence with the JCIO that a right of appeal was not available to her. In any event, Ms Lonsdale was essentially complaining about a judicial decision and judicial case management as detailed in guidance and the principle of judicial independence would preclude the JCIO from revealing such matters regardless of whether a further appeal was possible. I disagree with Ms Lonsdale's contention that the fact that there is no right of appeal for a CPR 52.30 application potentially made the matters complained of misconduct. The JCIO correctly advised Ms Lonsdale that judicial decisions can only be challenged through the courts and could not have considered her concerns in this regard. I do not find any maladministration in its approach.
15. Ms Lonsdale was aggrieved with the JCIO's assessment that her concerns about LJ Briggs' dishonesty were not something that it could consider. She suggested that it was misconduct because he made up reasons for dismissing her original application, denied that he had predetermined her case and failed to consider her evidence which discredited his original decision. I am content that the JCIO appropriately advised her that it could not look at her concerns. It explained that JCIO was unable to investigate, challenge or question a judge's decisions or case handling and this included what evidence was considered and the weight given to it. This was consistent with the guidance provided on the JCIO's website which includes 'What evidence should be, or has been, considered' as an example of something that it cannot investigate. I do not find any maladministration in its approach.
16. Evidence that a Judge has been hostile misogynistic or discrimination might raise a question of misconduct that he JCIO should investigate further. However, it was consistent with the appropriate guidance for the JCIO to have found that the allegations, including that LJ Briggs had discriminated against her because he was male and she was female and because he was wealthy and she was not, related to judicial decision and judicial case management and were not supported by evidence of misconduct on which the JCIO could rely. Ms Lonsdale's concerns were properly rejected and I do not find any maladministration in the JCIO's approach."
The 2005 Act
"110. Applications to the Ombudsman
(1) This section applies if an interested party makes an application to the Ombudsman for the review of the exercise by any person of a regulated disciplinary function, on the grounds that there has been –
(a) a failure to comply with prescribed procedures, or
(b) some other maladministration.
(2) The Ombudsman must carry out a review if the following three conditions are met.
(3) The first condition is that the Ombudsman considers that a review is necessary.
(4) The second condition is that –
(a) the application is made within the permitted period,
(b) the application is made within such longer period as the Ombudsman considers appropriate in the circumstances, or
(c) the application is made on grounds alleging undue delay and the Ombudsman considers that the application has been made within a reasonable time.
(5) The third condition is that the application is made in a form approved by the Ombudsman.
(6) But the Ombudsman may not review the merits of a decision made by any person.
(7) If any of the conditions in sub-sections (3) to (5) is not met, or if the grounds of the application relate only to the merits of a decision, the Ombudsman –
(a) may not carry out a review, and
(b) must inform the applicant accordingly."
"111. Review by the Ombudsman
(1) Where the Ombudsman is under a duty to carry out a review on any application under Section 110, he must –
(a) on the basis of any findings he makes about the grounds for the application, decide to what extent the grounds are established;
(b) decide what if any action to take under sub-sections (2) to (7).
(2) If he decides that the grounds are established to any extent, he may make recommendations to the Lord Chancellor and Lord Chief Justice.
(3) A recommendation under sub-section (2) may be for the payment of compensation.
(4) Such a recommendation must relate to the loss which appears to the Ombudsman to have been suffered by the applicant because of any failure or maladministration to which the application relates.
(5) If the Ombudsman decides that a determination made in the exercise of a function under review is unreliable because of any failure or maladministration to which the application relates, he may set aside the determination.
(6) If a determination is set aside under sub-section (5) –
(a) the prescribed procedures apply, subject to any prescribed modifications, as if the determination had not been made, and
(b) for the purpose of those procedures, any investigation or review leading to the determination is to be disregarded.
(7) Sub-section (6) is subject to any direction given by the Ombudsman under this sub-section –
(a) for a previous investigation ordered to be taken into account to any extent; or
(b) for any investigation or review which may form part of the prescribed procedures to be undertaken, or undertaken again.
(8) This section is subject to Section 112.
112. Reports on Reviews
(1) In this section reference to the Ombudsman's response to an application are references to any findings and decisions referred to in Section 111(1).
(2) Before determining his response to an application the Ombudsman must prepare a draft for a report of the review carried out on the application.
(3) The draft report must state the Ombudsman's proposed response.
(4) The Ombudsman must submit the draft report to the Lord Chancellor and the Lord Chief Justice.
(5) If the Lord Chancellor or the Lord Chief Justice make a proposal that the Ombudsman's response to the application should be changed, the Ombudsman must consider whether or not to change it to give effect to that proposal.
(6) The Ombudsman must produce a final report that sets out –
(a) the Ombudsman's response to the application, including any change made to it to give effect to the proposal under sub-section (5),
(b) a statement of any proposal under sub-section (5) if it is not given effect to.
(7) The Ombudsman must send a copy of the final report to each of the Lord Chancellor and the Lord Chief Justice.
(8) The Ombudsman must also send a copy of the final report to the applicant, but that copy must not include information –
(a) which relates to an identified or identifiable individual other than the applicant, and
(b) whose disclosure by the Ombudsman to the applicant would (apart from this sub-section) be contrary to Section 139.
(9) Each copy must be signed by the Ombudsman.
(10) No part of the Ombudsman's response to an application has effect until he has complied with sub-sections (2) to (9)."
The 2014 Regulations
(a) the investigation and determination of allegations by any person of misconduct by judicial officeholders, and
(b) reviews and investigations (including the making of applications or references) under ss.110 to 112.
By s.117 such regulations may provide for the provision of prescribed description that may be included in the regulations to be made instead by rules made by the Lord Chief Justice with the agreement of the Lord Chancellor. In the 2005 Act, "prescribed" means prescribed under such regulations or rules (s.122).
The 2014 Rules
"A complaint about an officeholder must be made to the [JCIO]."
Rule 6 has a heading "Complaint of Misconduct". Rule 6 provides:
"A complaint must contain an allegation of misconduct."
A "complaint document" is a document in writing which amongst other matters contains an allegation of misconduct on the part of a named or identifiable person holding an office listed in Regulation 3 of the 2014 Regulations (r.8(b)). Rule 20 provides that:
"A complaint must initially be considered by the [JCIO]."
Rule 21 provides that the:
"[JCIO] must dismiss a complaint or part of a complaint which falls into any of the following categories."
One such category in r.21(b) provides:
"It is about a judicial decision or judicial case management and raises no question of misconduct."
Where the JCIO does not dismiss a complaint under r.21 there is further provision as to the process by which it should be addressed.
The Supplementary Guidance
"Section 110 of the Constitutional Reform Act 2005 provides for the subject of the disciplinary proceedings or the complainant to apply to the JACO for a review of the handling of matters involving a judicial complaint or discipline on the grounds that there has been a failure to comply with prescribed procedures, or some other maladministration. The JACO cannot comment on the merits of any decision made in respect of a particular case. However, if satisfied that the grounds of the complaint to him are justified he may make recommendations to the Lord Chancellor and the Lord Chief Justice. If the JACO considers any decision to be unreliable as a result of maladministration he can set the decision aside and refer the matter back to the JCIO to be started afresh."
"The JCIO may only consider a complaint that contains an allegation of misconduct by a judge or other officeholder. Such misconduct relates to the judge's personal behaviour, for example: a judge shouting or speaking in a sarcastic manner in court; or misuse of judicial status outside of court. It does not relate to decisions or judgments made by a judge in the course of court proceedings. The only way to challenge such matters is through the appellate process.
Where a complaint does not contain an allegation of misconduct the JCIO will advise the complainant that it cannot investigate."
"The constitutional independence of the judiciary means that decisions made by a judicial officeholder during the course of proceedings are made without the interference of ministers, officials or other judicial officeholders (unless they are considering the matter while sitting in their judicial capacity, for example, in an appeal hearing). Judicial decisions include, but are not limited to, the way in which proceedings are managed, disclosure of documents, what evidence should be heard and the judgment or sentence given."
The Ombudsman's Guidance
"If you feel that the JCIO … has failed to handle your complaint properly or fairly, the Ombudsman may be able to help you."
That Guidance further states at Page 6:
"The Ombudsman cannot consider your complaint if:
- it is about a judge's conduct and you have not complained to a first-tier body. Complaints about judicial officeholders conduct must be made to the JCIO …
- your complaint is about a judicial decision. You could consider seeking legal advice about whether you can appeal to a higher court. If you cannot afford a solicitor you should contact a Citizens Advice Bureau or your local Law Centre;
- your complaints is made about a decision made by the JCIO … The Ombudsman can only consider the processes that these bodies have followed."
"What sort of complaints can the Ombudsman look at?
The Ombudsman can look at whether the JCIO … has failed to handle your complaint to them properly. The Ombudsman will need you to give a clear explanation of what the body you are complaining about did wrong.
The JCIO … dismissed my complaint because they said it related to a judicial decision-making. Can the Ombudsman look at this?
Yes. The Ombudsman can look at whether the JCIO … followed the correct processes in reaching their decision to dismiss your complaint. However, he cannot comment on whether their decision was correct or not.
Can the Ombudsman reinvestigate my complaint about a judge's behaviour?
No. The Ombudsman has no legal power to investigate complaints about the personal conduct of judges. This is the role of the JCIO … He can only consider whether the JCIO … handled your complaint to them correctly.
Can the Ombudsman review the decision that the judge made in my case?
No. The Ombudsman has no legal power to review a judge's decision."
"(1) The final paragraph of the attachment to his report revealed that the [JCIO] operates an unlawful and discriminatory policy which discriminates against those who are complaining against Judges who sit in the Court of Appeal, from whom there is either no right of appeal or no effective right of appeal. The Ombudsman has wholly failed to address this issue. The Ombudsman's office has revealed that where there is a right of appeal and the appellate Court comments adversely in relation to the Judge below, that the JCIO will consider the complaint. Thus, the JCIO abdicates the first decision on conduct to the appellate Court but then entertains the matter. But where there is no right of appeal, or no effective appeal, and where a review of the Judge's conduct by the JCIO is imperative, the JCIO takes no action. This reveals that complainants to the JCIO in relation to, for example, High Court Judges, obtain the protection of a right of appeal and this subsequent review by the JCIO, whereas complaints to the JCIO in relation to the Court of Appeal Judges where there is no right of appeal, or no effective right of appeal, the complainants have no remedy. The JCIO is acting unlawfully in relation to those complaints and has acted unlawfully in relation to the Claimant in this case. It is imperative to consider the conduct of a Judge of the Court of Appeal from whom there is no right of appeal. The rule of law is defeated by a Judge who can fabricate grounds for dismissing an appeal for which there is no truth, as Briggs LJ has done in this case, and then, when evidence is put before the Court under CPR 52.30 to show his wrongdoing, failed to recuse himself and sit as a Judge in his own cause, so as to dismiss the application so that his wrongdoing is not subject to scrutiny by another under CPR 52.30, is not open to appeal, is not challenge before the JCIO.
(2) The matters complained of in relation to Briggs lJ are matters of conduct, which were in breach of Articles 6, 8, 13 and 14 of the [ECHR] and required consideration by the JCIO and the Ombudsman should have so held but misdirected himself."
"(3) Alternatively, if Points (1) and (2) are not upheld the Claimant seeks a declaration of incompatibility with the Human Rights Act and the European Convention on Human Rights, since there is no effective remedy in UK law for this Applicant and many others and such applicants are deprived of the right of a fair hearing and their property in financing litigation and can be subject to discrimination, without any recourse in UK law."
(1) About Briggs LJ's decision (on 25 October 2016) which she states showed that he did not act impartially, independently or fairly (her challenges to his grounds for refusing permission, which she says he could not have held honestly, and involved her challenge to a misapprehension in the judgment that in 2000 there was only the need to nominate lay (panel) members).
(2) Briggs LJ's depriving her of opportunity to make points orally and discrimination against her by reason of her age, sex and retired status.
(3) The want of a right of appeal to the Supreme Court and the contention that despite the facts relied upon in her application under CPR 52.30 his then failure to recuse himself, his sitting as a Judge in his own cause and dismissing an application making more discriminatory remarks about Ms Lonsdale and her status (on 22 June 2017): she contends there was no effective independent impartial determination by the Court of Appeal by reason of the conduct of Briggs LJ and no right of further appeal.
(4) The toll on her of the matters that had happened to her since 2007 and her further contention that Briggs LJ defeated justice by his conduct, leaving her with no other judicial recourse.
(5) She repeats her contention that for the reasons stated in her Grounds the Ombudsman misdirected himself and alternatively she seeks a declaration of incompatibility since she has been denied a remedy at every stage.
(1) There is nothing in the Claimant's Claim Form that argues that the Ombudsman failed to follow the steps required by ss.110-112 of the 2005 Act or that the Ombudsman did not consider items in the complaint to him.
(2) The claim rested on a flawed understanding of the Ombudsman's function and remit and his ability only to consider whether JCIO complied with the prescribed procedures or whether there was some other maladministration (s.110(1) of the 2005 Act) and the prohibition in s.110(6) of the Ombudsman from reviewing the merits of the decision made by the person - whether the Judge in question or the JCIO.
(3) The Ombudsman conducted a review of the JCIO's approach including that an appropriate process had been followed and there was no maladministration and it was not for the Ombudsman to question the decision-making of the JCIO or that of Briggs LJ.
(4) The JCIO asked itself the correct question having regard to the legal framework; in particular, r.6 of the 2014 Rules which provides that a complaint "must contain an allegation of misconduct" and that the JCIO "must dismiss" a complaint which "is about a judicial decision or judicial case management and raises no question of misconduct" (r.21(b)).
(5) There was no basis for criticising the way in which the JCIO went about investigating the misconduct issue. It was not for the Ombudsman to substitute his own answer in place of that reached by the JCIO which is what the Claimant had invited him to do.
(6) It was not part of the Ombudsman's function to make a ruling on (i) whether the JCIO's answers to the misconduct issue disclosed "an unlawful and discriminatory policy" or (ii) whether Briggs LJ's conduct had violated the Claimant's rights under Articles 6, 8, 13 and 14 ECHR.
(7) The Ombudsman had appropriately and lawfully addressed Ms Lonsdale's complaint that there was no right of appeal against a CPR 52.30 decision.
(8) Ms Lonsdale did not identify any legislative provision which is said to be incompatible with Convention rights.
"1. By this application the Claimant seeks to raise points of law on the provisions governing the entertainment of complaints to the [JCIO] and the review of the determination of such complaint by the [Ombudsman]. In summary, the Claimant submits that each body has misdirected itself in law and, as a result, the [Ombudsman] has arrived at the wrong conclusion."
At Paragraph 5 she refers to her six separate grounds on 15 September 2017 for alleging misconduct against Briggs LJ. She contends that the central issue in her case is whether one or more of the six grounds of complaint is a complaint of judicial misconduct and whether she was entitled to a remedy by way of investigation. Under Paragraph 9 of her Skeleton she re-makes her six grounds of complaint against Briggs LJ. At Paragraph 10 she contends she has the right to an effective remedy against the Judge in accordance with Articles 13 and 17 of the ECHR and that if she did not have an effective remedy under the 2005 Act and associated regulations her human rights had been defeated, hence her seeking the declaration of incompatibility. At Paragraphs 10 to 28 Ms Lonsdale sets out criticisms of the JCIO and in particular its purported rejection in accordance with r.8 of the complaint as not containing an allegation of misconduct. At Paragraphs 32 to 42 she sets out her submissions against the Ombudsman. Those include that the Ombudsman had confirmed the JCIO had erred in law and there was maladministration given that there had been an allegation of misconduct and thus r.8 could not therefore apply. She submits that r.21(b) also could not have been deployed against her to dismiss her claim since her claim did raise a question of misconduct. She alleges that the Ombudsman was wrong to assert that her complaint to the JCIO was not supported by any evidence of misconduct. Further, she reiterates her complaint that the last paragraph, Paragraph 58, of the report to the Ombudsman of the investigating officer observes:
"The JCIO has previously told this office that the principle of judicial independence precludes it from reviewing judicial decisions and judicial case management and if a case is considered at a superior court and that court is critical of the lower court's behaviour in applying the law the question of misconduct might arise. However, in this instance Mrs Lonsdale suggested that she did not have the scope to pursue such an appeal."
Ms Lonsdale complains the Ombudsman did not address that issue.
"(a) Did the Ombudsman handle properly the Claimant's complaint against JCIO?
On the facts of this case, this inevitably involves considering:
(b) Whether it is rationally possible to deny the allegations of hostile, misogynistic and discriminatory behaviour by a Judge towards a litigant are allegations of misconduct.
(c) Do the Ombudsman and JCIO correctly identify the distinction between:
(i) the making of a judicial decision (which is accepted is a matter outside their purview); and
(ii) the conduct of the Judge in the course of decision-making activities.
And, if not:
(d) Is that in the case of the JCIO, because of some failure with process or maladministration about which, if acting appropriately, the Ombudsman should have intervened?
And, if so:
(e) Was the Ombudsman acting irrationally?"
"37. 'Maladministration' is not defined by the 1967 Act. It will cover 'bias, neglect, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on.' The list is open-ended, but the type of behaviour that qualifies concerns the manner in which a decision is reached or a discretion is exercised rather than the merits of that decision or the discretion itself …
38. I was referred to a number of cases as to the nature and ambit of the role of the Ombudsman … The following general propositions can be extracted from that body of case law:
- (i) The Ombudsman has no duty determine questions of law. He/she is not acting as a surrogate of the Court in determining whether there has been unlawful conduct but rather, investigating a complaint of maladministration under the powers conferred on him/her by statute.
- (ii) Maladministration is a different concept from unlawfulness; consequently in determining whether the conduct complained of amounted to maladministration, the Ombudsman is not constrained by the legal principles which would apply if they were determining whether that conduct was unlawful.
- (iii) Unlawfulness is neither a precondition of nor concomitant to a finding of maladministration, there may be maladministration without unlawfulness, and vice versa.
- (iv) Even if, with the benefit of hindsight, it might seem obvious that the public body got something wrong, the Ombudsman must look at the question of maladministration on the basis of the information that the public body has at the relevant time and not with the benefit of hindsight.
- (v) It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration or whether there was failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a Court unless it reflects an unreasonable approach.
- (vi) However the Court will interfere if the Ombudsman fails to apply standard they say thatthey are applying.
- (vii) The question of whether any given set of facts amounts to maladministration or causes injustice to a complainant is a matter for the Ombudsman alone. Whatever he may think about the conclusion reached, and even if he fundamentally agrees with that conclusion, the Court may not usurp the statutory function of the Ombudsman and it can only interfere if the decision reached was irrational.
- (viii) An Ombudsman's report should be read fairly, as a whole, and should not be subject to the hypercritical analysis nor construed as if it were a statute or a contract.
39. Therefore, even if what the relevant public body (in this case OFQUAL) did or said turns out with hindsight to have been based on a misunderstanding of the law, it will not necessarily lead to a finding of maladministration by the Ombudsman, especially if the legal issue is not entirely straightforward and the mistake was a understandable one for a layman to have made."
"We investigate … the handling of complaints involving judicial discipline or conduct …"
He refers me to s.111(5):
"If the Ombudsman decides that a determination made in the exercise of a function under review is unreliable because of any failure or maladministration to which the application relates he may set aside the determination."
Mr Davidson QC submits that r.21(b) recognises that in the course of reaching or providing a decision a Judge may commit misconduct. He contends that the decision may be right or wrong, but regardless of that, if there is misconduct there is misconduct. He contends that for a complaint to be dismissed under r.21(b) two conditions must be satisfied:
- a judicial decision or judicial case management, and
- which raises no question of misconduct.
"The complaint did not involve an allegation of misconduct"
and later going on to say it was about a judicial decision. He submits that the Ombudsman should have found a failure to follow prescribed process and/or maladministration in that the first condition in r.21(b) was not met and that even if it was (ii) the second condition in r.21(b), that the complaints did not include an allegation of misconduct, was not met. He submits that the Ombudsman irrationally failed to understand the failure of the JCIO.
(1) Her contention that Briggs LJ was dishonest in ruling against her is a complaint of misconduct.
(2) She submits that the omission of Briggs LJ to recuse himself under r.52(30) was biased and created a situation of bias in addressing that application is an allegation of misconduct.
(3) The complaint of unfavourable treatment as a woman, a person of his own age and a retiree (a discrimination claim) was a complaint of misconduct.
(1) The importance of the JCIO and its meeting the need to promote public confidence by reason of the complaint system.
(2) The importance of r.21(b) being applied correctly and correctly understood by the JCIO if dismissing a complaint.
(3) The JCIO staff do not understand r.21(b) or its role correctly. Such would be a maladministration. Similarly it will be a matter of incompetence and the failure to understand a point which is fundamental to JCIO's operation.
(4) The need for complainants (in particular, losing litigants) to be able to distinguish decisions from conduct.
(5) Ms Lonsdale's submissions to the JCIO as then a litigant in person might be criticised but contains clear allegations of misconduct, and given such patent allegations it should have been obvious that there had been a failure of process and/or maladministration and that the only rational course open to the Ombudsman was to uphold the complaint against the JCIO and require reconsideration.
(1) It is not logical to assert that "the allegations, including that Briggs LJ has discriminated against her because he was male and she was female and because he was wealthy and she was not, related to judicial decision and judicial case management."
(2) The assertion that her allegations "were not supported by an [sic] evidence on which the JCIO could rely" was wrong and inapposite. He contends that that assertion is wrong and inapposite given, for example, the complaint that "The Judge acted in a hostile, misogynistic and discriminatory manner towards me." But even if that were right, he argues the decision to reject for want of evidence would have been under r.21(a), (e) or (g) which had not been considered appropriate by the JCIO and the JCIO could not have dismissed on those grounds because before doing so it would have had to have given Ms Lonsdale an opportunity to provide adequate details under r.22.
(1) The starting point is that the Ombudsman's statutory function is limited to reviewing the JCIO's investigation process to ascertain whether there had been a failure to comply with prescribed procedures (ie the 2014 Regulations and 2014 Rules); or (b) some other maladministration (s.110(1) of the 2005 Act).
(2) The Ombudsman "may not review the merits of a decision made by any person (2005 Act, s.110(6)). He submits that that reinforces the limited ambit of the Ombudsman's role in expressly forbidding him from reviewing the merits of any decision of the JCIO or an order of the Judge who is the subject of complaint.
(1) The JCIO acknowledged the allegations and summarised them in its response dated 10 October 2017 and that whilst it did not specifically refer to the allegation of misogyny to the extent that that was a form of discrimination it appropriately identified the concern in broad terms.
(2) The JCIO correctly identified the issue under r.8 as being whether the complaint contained an allegation of misconduct. The JCIO approached that issue by applying the distinction identified in the Supplementary Guidance on the 2014 Rules that:
"Misconduct relates to the judge's personal behaviour, for example, a judge shouting or speaking in a sarcastic manner in court; or misuse of judicial status out of court"
"does not relate to decisions or judgments made by the judge in the course of court proceedings. The only way to challenge such matters is through the appellate process."
(3) The JCIO explained why the Claimant's concerns could not be investigated. In particular, it referred to the constitutional independence to the judiciary and the freedom of Judges to decide what evidence they wished to consider and the weight that should be applied to that evidence. This was consistent with the information provided by JCIO on its website about what it could and could not consider. Mr Steele goes on to say that the Ombudsman was entitled to conclude that there was no basis for criticising the way in which the JCIO went about investigating the misconduct issue and reaching its decision. It was not for the Ombudsman to substitute his own answer in place of that reached by the JCIO.
"The underlying purpose of that constraint [ie r.21(b)] is of course to protect judicial independence in decision-making as further confirmed by the [2005 Act]."
Mr Steele points out that the position is different if a High Court has already criticised a Judge's decision-making since the JCIO can then take the High Court's finding as read and would not itself have to express any view on the merits of the Judge's decision. He observed that a Judge who has called one of the parties or witnesses an offensive name in his judgment could potentially be found guilty of misconduct in the same way as a Judge who verbally called someone an offensive name during the course of a hearing. For the JCIO to investigate such matters would not cross the line between judicial conduct and interference with judicial decisions. He makes the point that by contrast Ms Lonsdale's complaints necessarily involved asking the JCIO to examine and find fault with Briggs LJ's reasons for his decisions which crosses what he calls an important line. He points out in relation first to the allegation that Briggs LJ "acted in a hostile, misogynistic and discriminatory manner towards me" does not suggest any such language having been used. Ms Lonsdale has said that what the Judge did was "repeatedly dismiss what I say for discriminatory reasons which have no basis in law and (ii) said that because I am retired from the Bar I am not entitled to a remedy or justice." Such, Mr Steele contends, is a direct challenge to the Judge's reasons for his decision to refuse permission to appeal. At Section 22 of his judgment he held there was no other compelling reason why the appeal should be heard since the Claimant "received the mildest sentence for a breach of the Public Access Rules and has, in any event, long since ceased to practice as a barrister." He refers also to Paragraphs 4 to 6 of Briggs LJ's Order refusing the application under CPR 52.30 to re-open the appeal. He submits that, as the Ombudsman noted, Ms Lonsdale's allegations are not supported by any evidence on which the JCIO could rely - i.e. a finding of a higher Court. Absent such a finding, it would have been constitutionally improper for the JCIO to express a view about Briggs LJ's reasons for his judicial decision.
(a) A failure to comply with prescribed procedures; or
(b) Some other maladministration.
(a) I do not consider it arguable that the Ombudsman failed to handle properly Ms Lonsdale's complaints against the JCIO.
(b) I do not consider the Ombudsman asserted that allegations of hostile, misogynistic and discriminatory behaviour by a Judge were not allegations of misconduct.
(c) The Ombudsman (and if relevant the JCIO) did in my view correctly identify the distinction between (i) the making of a judicial decision and (ii) the conduct of the Judge in the course of decision-making activities.
(d) I do not consider there was a failure of process or maladministration about which the Ombudsman should have intervened.
(e) I do not consider the Ombudsman acted irrationally.
(1) The problem that the Ombudsman was prohibited by s.110(6) of the 2005 Act from reviewing the merits of a decision whether by a Judge or the JCIO.
(2) The fact that Ms Lonsdale had no right of appeal against the decisions of Briggs LJ and so there was no judicial criticism of his behaviour, does not arguably indicate that the Ombudsman's findings that the JCIO followed an appropriate process and there had not been maladministration, were unlawful.
(3) The complaints of discrimination related to reasons for dismissing the application for permission to appeal (and the want of need to reopen the appeal) unarguably related to the merits of his decisions and were beyond the "purview" of the Ombudsman (or the JCIO)).