James Richardson QC v Judicial Executive Board [2018] EWHC 1825 (Admin)

James Richardson QC v Judicial Executive Board [2018] EWHC 1825 (Admin) was an application for permission to apply for judicial review before Lord Justice Sales in the High Court (Administrative Court). The application was refused both on procedural grounds and on the merits.

Mr Richardson QC, at the time editor of *Archbold Criminal Pleading, Evidence and Practice*, challenged two alleged decisions relating to the choice of criminal law textbook to be purchased from the public purse for placement on the bench in Crown Courts throughout England and Wales. The primary decision under challenge was that reflected in a letter dated 30 June 2016 from Burnett LJ (as he then was), as Chairman of the Judges’ Council Library Committee. That letter explained that the Judicial Executive Board (the JEB) had decided to adopt a uniform approach across criminal courts, replacing a previous system under which local courts had independently chosen between *Archbold* and *Blackstone’s Criminal Practice*. The letter stated that after soundings had been taken from judges sitting in the criminal courts, the decision for the coming year would be to place *Blackstone* on the bench. The letter indicated that the preponderance of judicial opinion favoured *Blackstone* as “more useful”, “better written” and providing “better treatment of CPR and the Sentencing Guidelines”. It was emphasised that the decision would be revisited in coming years and that there would be no de facto monopoly. Judges retained personal allowances to purchase *Archbold* if they wished, and online access remained available.

Mr Richardson instituted proceedings only on 15 February 2018. His delay was partly attributed to the acquisition of further evidence after June 2016. In particular, he learned by October 2017 that a majority of judges in the consultation had in fact expressed a preference for *Archbold*, contrary to the indication in the 30 June 2016 letter, and he discovered in September 2017 that Sir Brian Leveson, an advisory editor of *Blackstone*, had participated in the JEB meeting of 23 June 2016 at which the selection was decided. These matters were said to strengthen the case for challenge and to justify the delay.

Mr Richardson also alleged the existence of a second decision, reflected in a letter dated 14 December 2017 from the Government Legal Department, which stated that the judicial library and information service had begun preparing for a planned review of the choice of in-court textbook in readiness for the 2019 editions of both books. Mr Richardson submitted that this letter indicated a further decision and foreshadowed the adoption of the same flawed procedure.

Lord Justice Sales refused permission on the basis of undue delay. He held that, insofar as the challenge was directed to the decision of 30 June 2016, the proceedings had been brought well outside the three-month period prescribed by CPR 54, even allowing for the later acquisition of supplementary information. It was obvious that if Mr Richardson wished to prevent the decision being acted upon in time for the forthcoming year’s purchases, he needed to act promptly. The matters relied upon in his witness statement could not justify the delay. The fact that Fulford LJ’s letter had indicated a future review of the decision did not explain or justify delay in challenging a distinct earlier decision. As to the letter of 14 December 2017, the court held that it did not contain any relevant decision capable of challenge. It merely indicated that a review would be undertaken, without specifying the outcome or process to be adopted. Any challenge based on that letter was premature.

Mr Richardson advanced four substantive grounds of challenge. Under Ground 1, he contended that the decision was taken by the JEB ultra vires, since the JEB had no statutory power. The defendants responded that the JEB was an informal advisory body assisting the Lord Chief Justice, who was the actual decision-maker exercising powers under section 7(2) of the Constitutional Reform Act 2005. That provision confers on the Lord Chief Justice responsibility for, among other matters, representing the views of the judiciary to the Lord Chancellor and maintaining arrangements for the welfare, training and guidance of the judiciary. Lord Justice Sales held that it was clear beyond argument that the relevant decision-maker was the Lord Chief Justice and that he plainly had power under section 7(2)(a) and (b) to represent judicial views and maintain appropriate arrangements, including by advising the Lord Chancellor on the books to be purchased.

Ground 2 alleged procedural unfairness in the conduct of the consultation. An email dated 13 April 2016 had been sent to resident judges inviting them to consult their colleagues and respond by 6 May. High Court judges sitting in crime and Court of Appeal judges sitting in crime were also canvassed. Lord Justice Sales rejected the unfairness complaint. The consultation email made clear what decision was contemplated: whether judges in the Crown Court would be better served by having *Blackstone* rather than *Archbold* immediately available in court. It was unnecessary to consult practitioners or others, since the question concerned judicial preference for the utility of the works in court. The request to resident judges to consult colleagues adequately opened the process. The court found no arguable unfairness in the framing of the consultation or the persons consulted.

Ground 3 alleged bias on the part of JEB members. Mr Richardson contended that certain judges on the JEB had been criticised by him in his capacity as editor of Criminal Law Week and that Sir Brian Leveson’s position as an advisory editor of *Blackstone* created an appearance of bias. Lord Justice Sales held that since the Lord Chief Justice was the actual decision-maker, any alleged bias on the part of JEB members was not material to the lawfulness of the decision. In any event, the complaint was unarguable on the facts. The JEB’s role was administrative and advisory, not judicial. Judges regularly face criticism from a variety of sources; the fact of past criticism by Mr Richardson did not give rise to a properly arguable appearance of bias. As to Sir Brian Leveson, the Lord Chief Justice was aware of his editorial connection; the position was unpaid and Sir Brian derived no financial benefit from the choice. His judicial experience made him well-placed to comment. There was no proper inference that his advice might have been distorted. The court also held that, in any event, section 31(3D) of the Senior Courts Act 1981 applied: it was clear the same decision would have been reached, because the Lord Chief Justice was entitled to assess the consultation responses as showing a preponderance of judicial opinion in favour of *Blackstone* and would have adopted that view irrespective of Sir Brian’s participation.

Ground 4 asserted that it was irrational to conclude that the consultation responses favoured *Blackstone* when in fact the majority had indicated a preference for *Archbold*. Lord Justice Sales reviewed the digest of the consultation responses and found no arguable irrationality in the assessment. He held that there were no properly arguable grounds for maintaining that the decision-maker had reached an irrational assessment of those responses.

For all these reasons, both procedural and substantive, permission to apply for judicial review was refused. In short, the application failed on account of undue delay, the absence of any challengeable second decision, and the lack of any properly arguable ground on the merits, whether based on ultra vires, procedural fairness, bias, or irrationality.