Annex A

JUDICIAL APPOINTMENTS AND CONDUCT OMBUDSMANS OFFICE

COMPLAINT BY MR XXXX YYYYYY
INVESTIGATING OFFICERS REPORT
INTRODUCTION
1. This report is prepared following a request by Mr Xxxx Yyyyyy, that the Judicial
Appointments and Conduct Ombudsman review the conduct of an
investigation by the Humber Advisory Committee (HAC) of his complaint
against Mr JA ONions JP and Mr T A Shepherdson JP. This report will form
part of the evidence considered by the Ombudsman in assessing the
complaint.
BACKGROUND
2. The papers I have seen indicate that Mr Yyyyyy faced a summons to appear at
Grimsby Magistrates Court on 2 November 2012 for non-payment of Council
Tax. He paid the outstanding tax plus part of the costs demanded in the
summons prior to the hearing. He was concerned that on the date of the
hearing the court made him liable for the outstanding costs. He subsequently
applied to Judicially Review this decision and the matter appears to have been
settled with the Council at that point. On 2 September 2014 Mr Yyyyyy
complained to the HAC about the magistrates hearing his case. His complaint
was dismissed on 16 September 2014 on the grounds that he was
complaining about a judicial decision which did not raise a question of
misconduct. Mr Yyyyy did not receive the letter and subsequently complained
about this to Judicial Office, the JCIO and to you.
THE COMPLAINT
3. Mr Yyyyyy contacted the Ombudsmans Office on 8 August 2015 and made
final comments on 3 March 2016. The Ombudsman has agreed to investigate
the concerns that: the HAC failed to properly respond to his complaint or his
correspondence and dismissed the complaint erroneously.
4. Mr Yyyyyy asked the Ombudsman to investigate his concern that the court had
not properly responded to his application for Judicial Review and had not
provided a case stated document. The complaint about the Courts handling
of the Judicial Review application would be outside the Ombudsmans remit as
it does not concern a matter which could be considered under the disciplinary
legislation as it does not concern the actions of a judicial office-holder. The
Ombudsman cannot therefore consider it within the powers granted to him
under the Constitutional Reform Act 2005.
MY OBSERVATIONS
The complaint to the Advisory Committee
5. On 2 September 2014 Mr Yyyyyy complained to the Central Secretarial Office
in Doncaster that

Investigating Officers Report - Complaint from Mr Xxxx Yyyyyy

two Magistrates, Mr ONions and Mr Shepherdson had adjudicated on his

case and allowed the local authority to enforce payment of an unpaid
element of his court summons costs; and that
his application was subsequently submitted to the Magistrates Court to
state a case in his appeal to the High Court, he believed the failure to
respond to this request was a failing in the Magistrates behaviour which
he described as conduct [which] has been such to pervert the course of
justice.
6. Mr Yyyyyy attached an affidavit to his complaint which he had produced for his
application for Judicial Review, this document set out a chronology of the
events surrounding the hearing of his case; it also set out his attempts to
obtain a response to his application from the court. The papers show that the
application was not proceeded with as the local authority responded with an
offer acceptable to Mr Yyyyyy.
The Advisory Committees handling of the complaint
7. On 16 September 2014 the HAC responded, stating that the Chairman had
dismissed both aspects of his complaint because:
first, the complaint related to a judicial decision which did not raise a
question of misconduct and
second, the complaint about correspondence in his legal proceedings
concerned actions which were not done or caused to be done by the
Magistrates.
8. I observe that the disciplinary rules state that:
The Chairman of the Advisory Committee or the Advisory Committee
must dismiss a complaint, or part of a complaint, if it falls into any of
the following categories: 32(b) it is about a judicial decision or judicial
case management, and raises no question of misconduct; and 32(c)
the action complained of was not done or caused to be done by a
magistrate.
9. I also observe that first tier complaints bodies such as the HAC do not have
the power to investigate complaints about criminal behaviour such as
perverting the course of justice this is a matter for police action if appropriate.
10. The response was sent to Mr Yyyyyy but did not reach him. I observe that the
postal address was correctly stated on the letter but that the postcode was
written as DN32 0Q3 rather than DN32 0QJ.
11. Having not received the response, Mr Yyyyyy emailed the Judicial Office HR
Team at the Royal Courts of Justice on 14 May 2015 to complain. His
complaint was forwarded to the HAC which sent another copy of the dismissal
letter to him on 29 May 2015; unfortunately this letter did not reach him (it had
the same error in the postcode but was otherwise correctly addressed). I
observe that the HAC did not email a copy of the letter to Mr Yyyyyy.
12. On 25 June 2015 Mr Yyyyyy emailed the Judicial Complaints Investigations
Office (JCIO) to complain that his complaint had been ignored by the

Investigating Officers Report - Complaint from Mr Xxxx Yyyyyy

Secretary of the HAC. The JCIO forwarded the email to the HAC on 29 June
2015.
13. On 16 July 2015 the HAC sent another copy of the dismissal letter to him,
unfortunately this letter did not reach him (it had the same error in the
postcode but was otherwise correctly addressed). I observe that the HAC did
not email a copy of the letter to Mr Yyyyyy.
14. Mr Yyyyyy then complained to the Ombudsman.
15. I asked the HAC to ask if it had a record of postage of the letters; it responded:
A log is not maintained of post that is sent out by the Advisory
Committee. Correspondence that for any reason is despatched by
recorded delivery will of course have proof of posting.
Correspondence of the description sent to Mr Yyyyyy is issued by
ordinary post and will be despatched on the date of the
correspondence or exceptionally the next working day if for some
reason the mail does not reach the collection by Royal Mail from the
court office in time.
16. The Ombudsman will consider whether there is any maladministration in the
handling of Mr Yyyyyys complaint and his correspondence.
17. The Judicial Conduct (Magistrates) Rules 2014 state that:
Making a complaint about judicial misconduct
9. A complaint must be made to the local Advisory Committee or its
Secretary.
10. A complaint must contain an allegation of misconduct
Consideration of complaint
24. The Chairman of the Advisory Committee must initially consider whether
an allegation of misconduct has been made by a complainant.
25. If not, they may refer the matter to the Bench Chairman to deal with as a
pastoral or training matter.
26. Otherwise, the Chairman of the Advisory Committee must
(a) decide what action to take under rule 31; or
(b) refer the complaint to the Advisory Committee to decide what action to
take under rule
Dismissal of complaint
32. The Chairman of the Advisory Committee or the Advisory Committee
must dismiss a complaint, or part of a complaint, if it falls into any of the
following categories
(a) it does not adequately particularise the matter complained of;
(b) it is about a judicial decision or judicial case management, and raises no
question of misconduct;
(c) the action complained of was not done or caused to be done by a
magistrate;
(d) it is vexatious;
(e) it is without substance;
(f) even if true, it would not require any disciplinary action to be taken;
(g) it is untrue, mistaken or misconceived;

Investigating Officers Report - Complaint from Mr Xxxx Yyyyyy

(h) it raises a matter which has already been dealt with, whether under these
Rules or
otherwise, and does not present any material new evidence;
(i) it is about a person who is no longer a magistrate;
(j) it is about the private life of a magistrate and could not reasonably be
considered to affect
their suitability to hold their judicial office;
(k) it is about the professional conduct in a non-judicial capacity of a
magistrate and could
not reasonably be considered to affect their suitability to hold judicial office;
(l) for any other reason it does not relate to misconduct by a magistrate.
Guidance
Rule 9: An Advisory Committee may only consider a complaint that contains
an allegation of personal misconduct by a magistrate. Misconduct is not
defined in the rules. The OED definition is Instances of unacceptable or
improper conduct or behaviour. In the context of the rules personal
misconduct relates to the magistrates behaviour for example: a magistrate
shouting or speaking in a sarcastic manner in court; or misuse of judicial
status outside of court. Personal misconduct does not relate to how the judge
has managed a case or hearing or, to any decisions or judgments made in
the course of court proceedings. The only way to challenge such matters is
through the appellate process. The Directions for Bench Chairmen, the
declaration and undertaking signed by magistrates and the Guide to Judicial
Conduct are a useful point of reference on determining whether a matter may
be one of potential misconduct. Where a complaint does not contain an
allegation of misconduct the Advisory Committee will advise the complainant
that it cannot investigate the complaint under these rules and will inform the
complainant of the reasons for rejection. Where a rejected complaint raises
issues that may need to be addressed through training or informal guidance,
the Advisory Committee Chairman may refer the complaint to the Bench
Training and Development Committee or to the Bench Chairman to deal with
as part of his pastoral responsibilities.
Rule 32 (a) A complaint must set out all the details required under rule 12 and
provide specific details about the alleged misconduct. For example a
complaint which simply states that a magistrate was rude is not adequately
particularised. In this
example the complainant should say what the magistrate said or did to cause
the complainant to believe that the magistrate was behaving inappropriately
and at which part of the hearing this occurred.
Rule 32 (b) The constitutional independence of the judiciary means that
decisions made by a judicial office holder during the course of proceedings
are made without the interference of ministers, officials or other judicial office
holders (unless they are considering the matter whilst 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, which evidence should be heard and the judgment or sentence
given. However, the manner in which the justice conducted themselves can
amount to misconduct, for example if the justice was rude or abusive or failed
to exercise a fundamental responsibility such as a failure to accept the
decision of the majority of the bench or falling asleep on the bench.

Investigating Officers Report - Complaint from Mr Xxxx Yyyyyy

Nick Rose
Investigating Officer
2016