JCIO 28/24

A spokesperson for the Judicial Conduct Investigations Office said:

The Lady Chief Justice, with the Lord Chancellor’s agreement, has issued Mr Justice Picken with a formal warning for misconduct.

Facts

In early 2024, Mr Justice Picken applied for promotion to the Court of Appeal. As required, he nominated two independent assessors. Their role was to provide an evidence-based assessment of his suitability for the role.

Guidance by the Judicial Appointments Commission (JAC) explains that candidates can speak to their nominees about writing their assessment, for example to suggest people to whom the nominee should speak and to highlight examples of their work. However, the assessment is confidential and must not be disclosed to the candidate. The relevant guidance on confidentiality appears not only on the JAC website but also prominently and unequivocally on the assessment form itself. One of the sections on the form asks the assessor to identify possible areas of strength or weakness for an interview panel to explore.

One of Mr Justice Picken’s nominees accidentally sent the JAC a partially completed draft of their assessment form. The form included extensive comments and suggestions by Mr Justice Picken, indicating that it had been disclosed to him.

Mr Justice Picken’s representations

In his representations to the JCIO, Mr Justice Picken explained that he had a brief conversation with the nominee in which he explained the need for the assessment to be evidence-based. They also discussed some people to whom the nominee might speak. When the nominee had emailed him a draft of the assessment and asked for comments, parts of it appeared not to be evidence-based and there was no reference to the nominee having spoken to the people whom they had discussed.

Mr Justice Picken stated that he had not read the reference to confidentiality at the head of the assessment form. He did not think that there was any prohibition on his nominee sharing a draft with him. His intention in commenting on the draft was solely to ensure that his nominee understood the need for the assessment to be evidence-based. He had made clear in his covering email that the content of the assessment was for his nominee to decide. He very much regretted that he had caused anyone to question his integrity.

Nominated judge’s findings

A nominated judge concluded that Mr Justice Picken should have declined to comment on the draft assessment and deleted it without reading it. They also found that some of the judge’s comments on the draft went well beyond simply reminding the assessor of the need for evidence-based examples. They included extensive suggestions which were aimed at improving the assessment.

The nominated judge noted that if the assessment is to be independent, the candidate should have no involvement in the drafting of it. This was clear from the prominent and unequivocal reference to confidentiality at the head of the assessment form and from associated guidance published by the JAC.

Decision

The Lord Chancellor and the Lady Chief Justice agreed with the nominated judge’s recommendation to issue Mr Justice Picken with a formal warning. By reading and then commenting on the draft assessment his actions compromised his integrity and could have seriously undermined confidence in the judicial appointments process.

Notes for Editors

Media queries in relation to the JCIO should be made in the first instance to the Judicial Press Office - telephone 020 7073 4852 or via email - press.enquiries@judiciary.gsi.gov.uk

Sanctions for misconduct by judicial office-holders are set out in the Constitutional Reform Act 2005. They are, in order of severity: formal advice, formal warning, reprimand and removal from office.

For more information about the Office, including details on how to make a complaint against a judicial office holder, you can visit the JCIO website at: Judicial Conduct Investigations website