- Wednesday, May 01, 2024
Tribunal judge hailed for decision in favour of Asian solicitor’s evidence demand
By: BARNIE CHOUDHURY
SERVING and retired judges have told Eastern Eye that the selection process by which they are appointed is “racist and corrupt to the core”.
It comes after an Asian solicitor won the unprecedented legal right to see how the Judicial Appointments Commission (JAC) chooses successful candidates.
Ashok Ghosh claims that the body was directly and indirectly racist when it rejected his application to become a deputy high court judge.
Speaking exclusively to Eastern Eye, he said the current process is institutionally racist.
“It’s a complete charade,” he said. “It looks like racism.
“If you look at everyone who’s been appointed as a deputy high court judge, you’ll see the words KC appears next to them, 98 per cent are barristers, most of them are white.
“What it looks to be is this, the real criteria they apply is first you have to be a barrister, you have to be a KC [Kings Counsel], and there’s overwhelming white KCs.
“You have to be a judge or higher court advocate, and that is what they’ve given the top marks for.
“I’m chair of the solicitors’ disciplinary tribunal, I’ve had judicial experience, so I fulfilled all the criteria.
“The Judicial Appointments Commission is institutionally racist, and it’s got to change its criteria it applies to select candidates or there will never be diversity, and the judiciary will never have the confidence of ethnic minorities in this country.
“My case proves that.”
He said that there was not a single person of colour on his selection process.
“All of the sift panel members were white, there were no solicitors, no Asians, no black people.
“Imagine if there were a white candidate and all the panel members were Asians or eight black people?
“It wouldn’t look as if it were a fair process, even if it were.
“So that is an example of institutional racism or perception of it, and what I’m saying is that the people who select are subconsciously or unconsciously biased in terms of race.
“They come from a certain background and appoint people like themselves, and the criteria overwhelmingly favour white applicants.”
Trump card
Court documents seen by Eastern Eye show that Ghosh brought his claim against six parties.
It included Lady Justice Susan Carr, a former JAC vice-chair and commissioner.
Sources have told this newspaper that she left the JAC so she could campaign to become the first female lord chief justice.
The JAC tried to have the case thrown out.
But an employment tribunal judge, Emma Burns, ruled against the commission.
In an exceptional move she ordered it to release anonymised details of candidates who were shortlisted by assessors.
“This is highly unusual,” said one south Asian judge, “because the MoJ (Ministry of Justice) and the JAC go to a judge and say, ‘the guy’s trying it on. We have the evidence, and if this reaches court, you’ll see what a waste of time it is.’
“It’s a game of poker, and the JAC holds all the trump cards.
“Usually this is enough to convince a tribunal judge to strike out the claim, but on this occasion, this judge has called their bluff.
“She not only wants to see the evidence, but she wants Ashok to see it and allow him to use it to make his case.
“The MoD, JAC, bully, tell untruths and do everything to make sure the courts don’t get anywhere near what happened because it would the house of cards tumbling down.
“This is huge, and this judge’s career is finished.
“She’s gone against the establishment, and mark my words, she will be targeted, and something will happen to make sure the evidence never sees the light of day.”
In this case, Eastern Eye understands that the JAC argued that the tribunal was not a real court.
Burns disagreed and ruled that she did have the powers to order the JAC to hand over the evidence Ghosh had asked for.
But the judge went even further than just allowing the solicitor to see the anonymised evidence of those who applied.
Burns made it possible for others with a grievance to come forward.
“In addition, with the parties’ agreement, I am publishing this case management order so that anyone with a legitimate interest in challenging the orders can learn of them and make an application under Rule 50(4),” she wrote.
Mendacity
Legal experts have told Eastern Eye that the case centres on who did what, why and whether Ghosh can prove his case on the balance of probabilities.
The JAC accepts if it loses it will have to pay compensation to Ghosh.
In court documents seen by this newspaper, the solicitor sets out his qualifications and reasons which make him suitable to be a deputy high court judge.
They include his extensive experience as a solicitor in complex legal cases and two glowing references from financial and commercial institutions who deal in billions of pounds in business.
Ghosh argued in his legal submission that it was obvious, because of the examples he gave, that the assessors knew he was a candidate of colour, despite the anonymised application form.
“A person with racial prejudice, whether conscious, subconscious or unconscious would have concluded…they had a chip on their shoulder and marked them down for these examples.”
Ghosh, according to the documents, accused the JAC and two of the assessors of being ‘mendacious’ [untruthful and lying] and ‘chicanery’ [using deception and subterfuge] to stop his passing the sift.
“Only a complete dolt, or someone who is consciously, subconsciously or unconsciously racist, would have failed to give the highest marks for these achievements in view of the specified criteria.
“The member of the sift panel are unlikely to be complete dolts because they are respectively a high court judge and a highly experienced, senior, human resources expert.”
The solicitor was referring to Judge Martin Chamberlain and Yvette Long.
Ghosh dropped his claim against Long, Lord Kakkar, the JAC’s former chair, and Lady Carr, who will head the judiciary later this year.
He has also decided not to take legal action against Ian Thomson, the JAC’s head of corporate services.
Sneakiness skulduggery
“Two current cases, both brought by eminent Asian solicitors against the JAC in connection with their applications for appointment make allegations of sneakiness and skulduggery that favour friends and relations of existing senior judges over those without such connections,” said JSN co-founder, Claire Gilham.
The recently retired judge won her seven-year fight against the MoJ to be a whistle blower, after being sacked for revealing racism and bullying by some of her colleagues.
The MoJ was forced to reinstate her.
“In Judge Mithani’s case, the secretiveness of JAC processes is being exposed, and it is alleged that this served to conceal actions outside the scope of the agency’s statutory powers with the objective of concealing just how much weight is given in selection to the opinions of existing leadership judges who hold a concealed veto over appointments.
“Now a further case is being reported in which Ashok Ghosh alleges direct and indirect race discrimination arising out of the recruitment exercise for appointment to the office of deputy judge of the High Court.
“The nub of these cases is that while judges and others serve in the JAC administering test exercises and assessing in interview, their apparent objectivity is undermined by system of secret reporting which feeds in subjective and untested opinion which systematically promotes some and vetoes others, the candidates all unaware.”
“The JSN holds that the whispers have proliferated and ramified far beyond the failsafe of sifting for genuine unsuitability,” continued Gilham.
“Leadership judges openly boast of being able to promote from among their contacts in this way.
“We have been saying so, and these cases, independently allege the same failures applied to them as we have found to be widespread among those who consult the JSN.
“As a result, the JAC is not trusted, is failing, increasingly facing legal challenge such as this over probity and fairness where the secret parallel reference system negates JAC objectivity.”
Whispering system
Ghosh said that he believed that Chamberlain put pressure on his co-assessor to change her marks.
“Transparent recruitment processes are one way, because responsible agencies combat those insidious effects being allowed to distort appointments,” Gilham said.
“It is past time that the JAC was reformed, the scope of statutory consultation defined and sharply reduced so that its untested assertions of good and bad character – or is it mates and not mates – are exposed to the candidate to give them an opportunity of challenge.
“Instead of misleading feedback designed to conceal the basis for decisions being made, candidates should be entitled to know if the reason they failed was not because they failed a test but that they were marked down through the influence of a report that said they had an unsuitable personality.
“Currently the JAC conceals not only identity of the person reporting this, which one can see some argument for in some circumstances, but the underlying information leading to this conclusion, and even the facts that such a report was made and that it was used.
“The whispering system has a further insidious effect.
“It is a direct threat to judicial independence, as judges fear to express their true views over reforms of the system or to complain of bullying or other work issues for fear of being marked out and their careers blocked.”
Judges, who wanted to remain anonymous, fearful they would be targeted, bullied and singled out for punishment, told Eastern Eye, they hoped that eventually the judiciary would realise it could no longer operate in this way.
“The entire process is racist and corrupt to the core, and it needs an independent root-and-branch inquiry into how judges are appointed,” said one south Asian justice.
“If we raise our heads above the parapet, never mind complain, we know we’ll be seen as ‘not one of us’.
“The judiciary do these annual surveys, and they point out how wonderfully they’re doing, bullying, racism, misogyny don’t exist in their world.
“What a wonderful universe they live in, when we feel scared every day, and we’re begging for that shroud, that fog, the threats to go away.
“What will it take before they admit they have a problem?
“Will it take for someone to take their life? Is that what they want?
“Ashok’s brave efforts will hopefully have a domino effect and bring this corrupt process down.”
Blackballing
Another described how judges who made a stand and went to court were pushed to financial ruin in a David and Goliath fight – which the giant almost always won one way or another.
They said, “The fact is cases fail not because they do not raise issues of great public concern about who selects and monitors judges and how, but because wide latitude was given to the senior judiciary in the statutory framework which it is not easy to challenge in the lower courts.
“We have now a judiciary that says it improves diversity – actually probably not – but confined to the lower ranks.
“We have objective standards at entry falling through the floor.
“We have permitted coaching, even paid for, facilitated by the re-use of exam materials.
“Unsuccessful candidates get crafty feedback which conceals the blackballing that takes place.
“We have a concealed secondary reference system that pushes some forward and disbars others.
“The favoured few it seems are permitted to leapfrog in and go up with unsatisfactory and even without objective assessment.
“We have pretty well political appointments at the top.
“The results? The justice system skews away from delivering the low status volume basics well.”
Another explained how judges were fast losing touch with those they dispensed justice.
“For judicial careers, glass ceilings are everywhere, the baton of power and control of change passed between the well-connected few.
“There’s low morale among front-line judges who have far less say in the development of fair legal process than do the civil service.
“We’re facing a loss of judicial experience.
“New entrants across the board who cannot demonstrate basic competency in the area in which they begin to sit.
“They find it difficult as a consequence to demonstrate independence.
“Training, designed to augment and refresh the skilled is wholly inadequate to educate from scratch.
“There isn’t just inadequate training, there is no suitable support for those launched into judicial practice with little knowledge and no experience, and then promoted far too quickly.
“The JAC, which has not improved under new management, has gone along with this and is a failed organisation having neither ensured integrity of process nor maintained standards.
“JAC Panel members, judicial college training judges, retiring front line judges, appeal judges are all saying so.”
We approached the JAC for comment.
A spokesperson said, “Clearly you will understand that judges cannot comment on matters that involve ongoing court proceedings.”
