Our non-lawyer/law student readers, or even non-barrister readers, might have to forgive us for this for this Naughty Step, but it was too good to resist, particularly for those of us – i.e. me – still newly qualified enough to harbour memories of their professional courses (LPC/BVC), and also familiar, from the other side, with the conduct of University exam committees.
And so, we welcome to the Step Cardiff Law School, who are here for their truly remarkably inappropriate behaviour in the face of a High Court order, as well as managing to ensure that they lost a judicial review of the conduct of their exam committees.
Clarke, R (on the application of) v Cardiff University  EWHC 2148 (Admin) was a judicial review of Cardiff University Law School brought by a BVC student from 2004/5, Ms Clarke. The story went something like this…
Ms Clarke was taking the advanced criminal law option and the negotiation compulsory. Advanced criminal law was taught by Dr Wheeler and Ms Edwards. In November 2004, Ms Clarke was present when Dr Wheeler allegedly displayed racial prejudice against a Jewish student. A complaint was made by that student. At a later point, May 2005, Ms Clarke made a statement for the investigators of that complaint, supporting the complaint. We’ll come back to this.
In March 2005, the Defendant decided that there was suspicious conduct in an opinion writing assessment. The course leader, Andrew Jerram (remember him) decided that all students should be contacted to bring in their opinion writing textbooks in two days.
Ms Clarke did not receive the letter and voicemail apparently left on her mobile. She had a negotiation assessment on the relevant day. Shortly before her negotiation assessment, Mr Jerram and Ms Walsh – who was to conduct the assessment – apparently confronted her about her failure to bring in her textbook and demanded that she return home, get it and come back before taking the assessment – a 3 hour round trip. She was then allowed to take the assessment before going to collect the textbook.
About a month or so later, Ms Clarke submitted an extenuating circumstances form in respect of the negotiation assessment, saying that the encounter and demand from Mr Jerrarm and Ms Walsh had been upsetting and stressful, immediately prior to the assessment.
In June 2005, Ms Clarke took her advanced criminal assessment, then a few days later was told by Mr Jerram she had failed the negotiation assessment and given feedback. She then submitted a form highlighting the events before the assessment and saying the assessment had been incorrectly marked in addition. She retook the assessment at the end of June, got 62% but was awarded 50% as a retake.
On the same day the Defendant’s ‘extenuating circumstances committee’ considered and rejected her application. On the committee were Mr Jerram and Ms Walsh, who apparently gave their account of the events and rejected Ms Clarke’s account.
The assessment marks were then considered by the exam board, chaired by, well, Mr Jerram. As well as negotiation, the committee considered Ms Clarke’s advanced criminal law assessement, as marked by Dr Wheeler – he of the complaint under investigation – and moderated by Ms Walsh, whom we have already met. The criminal assessment was awarded a fail, in the 40% range. The exam board confirmed the fail and the negotiation fail/retake grade.
Still hanging on? Good. At this point, after being told of the grades, Ms Clarke mounted a challenge. The re-convened exam board (at which Mr Jerram and Ms Walsh were present, but this time both declared an interest and did not speak) confirmed the grades. Cue Ms Clarke’s application for judicial review, seeking quashing orders of the extenuating circumstances and exam board decisions…
At an early stage, proceedings were adjourned on terms that the videos of the advanced criminal assessment would be sent to an unconnected external examiner, together with a sample of others, for assessment and the full marked assessments of other candidates. After some extensive to-ing and fro-ing over a suitable examiner for months, the court gave further directions, appointing an examiner – a Ms Sutton – and ordering:
that until that exercise is completed and the result has been communicated to the claimant and the defendant neither Eversheds [their solicitors] nor any servant or agent of the defendants shall or shall seek to make any contact with Ms Sutton.
That seems clear, doesn’t it? A fairly unequivocal direction. A further direction said that any question Ms Sutton had should be put in writing and a response agreed by Claimant and Defendant before being sent to Ms Sutton by Professor Osmand, who was the contact for the Defendant.
Ms Sutton was duly provided with the materials. Ms Sutton duly assessed Ms Clarke and awarded 71%. Ms Sutton duly communicated this to Professor Osmand. At this point, the grade should have been communicated to Ms Clarke as per the order, one would have thought. But no. Instead, Prof Osmand in a series of emails, questioned Ms Sutton’s award and the basis on which she had made it. Ms Sutton agreed to lower the grade to 65% as a result. Ms Clarke was not, of course, made aware of any of this. She had asked about what was going on, but the Defendant’s solicitors had, well, not actually told her in their responses.
In fact, she wasn’t told of the grade until after a ‘reconvened exam board’, at which Mr Jerrard and Ms Walsh had the grace to actually withdraw. The exam board decided that it couldn’t actually decide what grade to award, so the first fail grade stood and Ms Clarke had failed the BVC.
Ms Clarke was given permission to amend her JR claim and did so. The Defendant, clearly firm in its view that it was right, had the advanced criminal law assessment marked yet again for consideration by the Awards and Progress Committee – being a superior committee to the exam board. The new external gave a bare pass grade. This was duly adopted by the Awards committee, who then declared that Ms Clarke had passed the BVC after all, with a competent. Therefore, they told Ms Clarke, the JR should be withdrawn.
Unfortunately for Cardiff, Ms Clarke didn’t withdraw. There was still the issue of the negotiation assessment. At hearing Wyn Williams J accepted that the ‘failure and retake’ of the negotiation assessment would remain on Ms Clarke’s record and have a deleterious effect, even if the overall BVC grade would not be affected.
On the ‘Extenuating Circumstances Committee’ decision, held:
It does not seem to me that it was fair for Mr Jerram and Ms Walsh to participate fully in the decision-making process when they were also providing information to the decision-makers which, inevitably, had the effect of casting doubt upon the Claimant’s credibility. I have no doubt that the views of Mr Jerram and Ms Walsh were capable of being very influential in this particular decision. In those circumstances it does not seem to me to have been fair that they should have participated in reaching the actual decision.
On the Exam Board decision, held:
the Claimant was not treated fairly at the hearing of the Re-Convened Examination Board on 27 September 2005. Mr. Jerram and Ms Walsh were present throughout and it is to be inferred, reasonably in my judgment, that they repeated their version of the facts. I say that since their presence throughout the hearing was justified on the basis that they could provide information about the facts. If they had been providing information to persons otherwise unconnected with the first decision that may have been justifiable. In fact they were not. The Re-Convened Examination Board contained at least two persons (three if Ms Bedford is included) apart from Mr Jerram and Ms Walsh who had sat on the Extenuating Circumstances Committee.
Neither at the Extenuating Circumstances Committee nor at the Re-Convened Examination Board did the members receive any views from the Claimant about the facts as told to the Committee/Board by Mr. Jerram and Ms Walsh. It does seem to me to be capable of being viewed as unfair that an oral explanation of the relevant facts was given (which was adverse to the Claimant) but she was given no opportunity for specific comment either in writing or orally.
Both decisions accordingly quashed.
Now trust me, it is not unusual to see a bunch of lecturers make a bad decision, then fanny about trying to resolve the resulting mess, or at least make it go away. It is also not unusual to see lecturers convinced that they could not be capable of a less than wholly objective view and so finding no improperness or conflict of interest in sitting in judgment over their own actions. But it is something I would expect of a bunch of – oh I don’t know – let’s say Art Historians.
It is bit more of a surprise in BVC tutors, who might be expected to have a grasp on the relevant broader principles. And then it is – what is le mot juste? – jawdropping to see a High Court order so blithely ignored in an attempt to squirm out of a difficult situation.
For that reason, the Cardiff University BVC sits on the Naughty Step. Bravo/brava to all concerned.
Update: the Times belatedly has the story, complete with interview with Ms Clarke, who, in a housing law related twist, apparently intends to “find work representing people whose homes have been repossessed”. Good luck to her.