HEARING DATE 14 July 1993
Disciplinary procedures - Common Professional Examination - Disciplinary hearings - Denial of justice - Unacceptable bias in a domestic or academic body - Propriety of staff participation - Material failure - Rational or proportionate response to an offence of less than cheating - Exercise of discretion because of applicant's failure to exhaust domestic remedies
HEADNOTE
N was a student at Manchester Metropolitan University (MMU), formerly Manchester Polytechnic. He was taking the Common Professional Examination (CPE) of the Inns of Court and the Law Society. MMU was an approved institution for this purpose. In the end-of-year examinations, N took into the examination hall some closely written pages of notes, which were noticed by invigilators and resulted in disciplinary measures against him. N sought an order of certiorari to quash two decisions taken in the name of MMU. The second of these was a decision of the university's board of examiners for the CPE that N be deemed to have failed the examinations and not be allowed to resit them. The CPE board is a joint body of the Council of the Inns of Court and the Law Society. It sets standards by which accredited institutions educate and examine intending lawyers. There was no formal relationship between the board and the university. Therefore, the CPE procedures were regulated by two sets of rules. These were the faculty's own Procedures for the Conduct of Examinations and the university's CPE Assessment Regulations. The latter were derived from the CPE board's own model regulations. Under the faculty procedures, where a student had cheated, plagiarised or otherwise sought to gain an unfair advantage, the board of examiners could exercise discretion in a manner appropriate to the case. Under the university regulations a student shown to have cheated failed the CPE and was not permitted to take the CPE again. In 1990 the CPE board rejected a proposal that the faculty's discretionary rule should apply to the CPE offences. However, the CPE board did accept an addition to the MMU's CPE regulations that, 'no student shall... attend a meeting of all or part of the Board other than for the purpose of his/her own viva voce examination'. There were detailed provisions on appeals and associated procedures in the Student Regulations and Procedures. On 25 June 1992 the Faculty Examinations Disciplinary Committee held a disciplinary hearing. This was the only oral hearing accorded to N. N was present and had representation. Evidence was called on his behalf both as to facts and as to character. Various testimonials were read. N's personal tutor gave oral evidence strongly in his favour. The disciplinary committee found that N was guilty of attempting to gain an unfair academic advantage but that there were mitigating circumstances in terms of N's mental state. No formal recommendation was made, but the board of examiners was asked to determine the appropriate academic action or penalty in the light of its findings. In not making any recommendation, the disciplinary committee was departing from an express requirement in the regulations governing faculty procedures. The CPE board of examiners met on 3 July 1992. It adjourned until 9 July 1992 to obtain further information about the mitigating circumstances. N asked if he could attend on 9 July 1992, but was informed that he was not permitted to do so. On 9 July 1992 the board decided that it had to consider N's case under the university's CPE regulations. It determined that N had cheated and therefore, in accordance with the regulations, failed the CPE and was not permitted to take it again. On 4 August 1992 the academic registrar wrote to the chairman of the board of examiners. He expressed the view that the board had made a serious error in finding that N had cheated under the CPE regulations. He advised that it should reconvene and revoke its decision, and then proceed to determine what action, if any, it wished to take on imposing a penalty on N. The academic registrar also wrote to N informing him of his view. On 22 September 1992 the CPE board of examiners reconvened. It was chaired by R, who had been one of the chief invigilators at the original examination. The other chief invigilator also took part, as did N's personal tutor. The board decided: (1) to rescind its original decision; (2) that N be deemed to have failed the full diet of his original examinations; and (3) that he should not be allowed to retake them. Letters from N and his parents were read before the board. The court found that the other testimonials which had been before the disciplinary committee had not been before the board; nor had the minutes of the disciplinary committee.
Held - granting the application and quashing the two decisions of the board of examiners -
(1) The CPE regulations were not exhaustive. They were a supplement to the faculty procedures. In addition to the offence of cheating which was provided for in both sets of rules, there was a distinct offence of attempting to gain an unfair academic advantage and the disciplinary committee was entitled to find N guilty of it.
(2) As there was a full prior hearing at which the material facts were found, there was no denial of justice in relation to the hearing on 22 September 1992 such as to render the hearing invalid. What amounts to an unacceptable bias in a domestic or academic body has to be decided by careful reference to the framework in which it operates. The contextual starting-point is not necessarily determinative of the outcome, for much may depend on external factors. What amounts to bias is not a fixed quantity but a function of the procedure under scrutiny and the events occurring in the course of it. Accordingly, there are limits to the propriety of staff participation.
(3) The board of examiners knew in principle what function it was being called on to perform.
(4) There was a material failure on the part of the board of examiners on 22 September 1992 to take into account material which it was incumbent of it to take into account, namely the full evidence in mitigation which had been placed before and accepted by the disciplinary committee. Such a failure will ordinarily vitiate the material proceedings, nullifying the decision.
(5) The court was not prepared to hold that it could never be, or could not on the limited evidence then before the board have been, a rational or proportionate response to fail a student permanently for something less than cheating.
(6) This was not a proper case for an adverse exercise of discretion because: (a) N had been refused a copy of the minutes of the meeting of 22 September 1992 and therefore had no evidence of a material irregularity or at least not enough evidence of it; and because (b) recourse to the MMU's own review procedure would not have been as certain or as full as recourse to law.
Statutory provision considered
Education Reform Act 1988, Chapter II
Cases referred to in judgment
R v Amber Valley District Council ex parte Jackson [1985] 1 WLR 298, [1984] 3
All ER 501, QBD
R v Barnsley Metropolitan Borough Council ex parte Hook [1976] 1 WLR 1052,
[1976] 3 All ER 452, CA
R v Gough [1993] 2 WLR 883, [1993] 2 All ER 724, HL
R v Governors of the London Oratory School ex parte Regis [1989] Fam Law 67
R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC
696, [1991] 2 WLR 588, [1991] 1 All ER 720, HL
COUNSEL
Patricia Hitchcock for the applicant
David Richardson for the respondent
PANEL: Mann LJ and Sedley J
JUDGMENT BY SEDLEY J
The applicant was in 1992 a law student at Manchester Metropolitan University, formerly Manchester Polytechnic. He had come there with first class honours in economics and politics from the University of Wales at Cardiff, and he intended to go on to read for the Bar at Lincoln's Inn, where he had been awarded a Hardwicke scholarship in spite of the fact that his degree was not in law. In order to do this he had to complete the one-year course leading to the Common Professional Examination of the Inns of Court and the Law Society and this he did at Manchester Metropolitan University, which is one of the higher education institutions approved for the purpose. In the end-of-year examinations the applicant foolishly took in with him some closely written pages of notes which were noticed by the invigilators and resulted in the disciplinary measures from which these proceedings arise.
The applicant seeks an order of certiorari to quash two decisions taken in the name of Manchester Metropolitan University, one on 9 July 1992, the other on 22 September 1992. As will appear, it is the second of them which matters, since by the second the first was rescinded and the respondent does not seek to revive or rely on it. The material decision was a decision of the university's Board of Examiners for the Common Professional Examination that the applicant be deemed to have failed the examinations and was not to be allowed to resit them. It is on the process leading to this decision that Miss Hitchcock, on the applicant's behalf, bases a series of cogently argued challenges.
The respondent is a body corporate by virtue of Chapter II of the Education Reform Act 1988. As a public institution discharging public functions, and having no visitor, it is subject to judicial review of its decisions on conventional grounds. It is not disputed that the applicant has a sufficient interest to bring the grounds upon which he relies before this court.
The Common Professional Examination (CPE) is a stage in the professional training of barristers and solicitors. The CPE board is a joint body of the Council of the Inns of Court and the Law Society, which sets standards by which accredited institutions educate and examine intending lawyers.
This case concerns among other things the relationship between the CPE board's and the university's regulations. The respondent has sensibly given the board notice of these proceedings but the board has declined to take part and has written that it 'is neutral to the stance taken by Manchester Metropolitan University in this case'.
There appears to be no formal agreement between the board and the university. The relationship, in the words of the university's counsel, Mr Richardson, has evolved. It appears not to be one of agency, but a mutual arrangement of benefit to both bodies. In the result there exist two sets of rules touching the CPE procedures. One is the faculty's own Procedures for the Conduct of Examinations. These contain the following provisions in Section III:
'Where it is established that a student has cheated or plagiarised or otherwise sought to gain an unfair advantage, the Board of Examiners shall consider the matter and judge the seriousness of the academic misdemeanour and exercise discretion in a manner appropriate to the case. This discretion shall include the power to fail the student in part or all of the stage assessment concerned, of final examination or assessment, and to determine whether or not the student should be reassessed. A student not permitted to be reassessed shall be recommended for exclusion from the Polytechnic.'
For 'polytechnic' now, of course, read 'university'. Just before that provision there appears at para 2.3:
'An investigation of a suspected case of cheating, plagiarism or other form of attempting to gain an unfair advantage will be conducted by the Faculty Examinations Disciplinary Committee (see Section IV) and not by either the Department to which the student belongs or by the Board of Examiners.'
By para 4.1 the following provision is made under the rubric 'Procedure to be Adopted by Invigilators in Suspected Cases of Cheating or Malpractice in Formal Examinations':
'This procedure shall apply where it is suspected that a student may be cheating or seeking to gain unfair advantage in a formal examination. Examples of what may be reasonably construed as seeking to gain an unfair advantage include:(a) retaining possession of unauthorised books or notes by a candidate at his/her examination place, or using or attempting to use unauthorised materials.'
In relation to faculty examination disciplinary committees the procedures in Section IV go on to provide:
'The Board of Examiners shall be informed of a finding of cheating, plagiarism or other form(s) of attempting to gain an unfair advantage, by the Examinations Disciplinary Committee. Further, the Committee shall make recommendations to the Board of Examiners on appropriate academic action or penalties.'
The other set of regulations is the university's Common Professional Examination Assessment Regulations which are derived from the CPE board's own model regulations. These include the following.
Regulation 29:'(a) A student who is shown to have cheated in any coursework or examination fails the Common Professional Examination and is not permitted to take the Common Professional Examination again.
(b) A student who is shown to have committed plagiarism in any piece of work which is part of the assessment for the purposes of the Common Professional Examination must be given a mark of nought for that piece of work.'
Regulation 30:
'These assessment regulations are subject to the appeals procedure of the approved institution.'
Before turning to the adjudicative procedures, it is necessary to record one episode which had repercussions on this case. In August 1990 the polytechnic, as the university then was, proposed to the CPE board an amendment of reg 29 which would have the effect of assimilating to it reg 2.5 of the Faculty Examination Regulations, conferring the same wide discretion in relation to the CPE offences of cheating and plagiarism and the faculty offence of seeking to gain an unfair academic advantage. The CPE board in November 1991 rejected this proposal and said: 'The model regulation provisions must apply'. However, the CPE board accepted an addition to the polytechnic's CPE regulations which read:
'No student shall... attend a meeting of all or part of the Board other than for the purpose of his/her own viva voce examination.'
The provisions for appeals and associated procedures of the respondent are found in the Student Regulations and Procedures. Part 3 of these, subtitled 'The Review Procedure', is formally entitled 'Procedure for Accommodating Requests for Review of Decisions of Boards of Examiners'. In the version before us, which became operative on 1 September 1992, it provides inter alia:
'The purpose of the Review Procedure is to ensure the interests of all students. The Review Procedure is not to be used simply because a student is dissatisfied with the outcome of his/her assessment but only when there are adequate grounds for doing so.1.1 The Academic Board permits only those requests for review that are based on additional information not previously disclosed to a Board of Examiners about a candidate's personal circumstances or evidence of procedural irregularity, and not requests that challenge the academic judgment of the Board of Examiners.
3.1 The following are the circumstances in which the Academic Board may require the Board of Examiners to reconsider its decision:
3.1.1 If a candidate requests such reconsideration and establishes to the satisfaction of the Academic Board that his or her performance in examinations or other forms of assessment was adversely affected by illness or other factors which he or she was unable, or for valid reasons unwilling, to divulge before the Board of Examiners reached its decision. The candidate's request must be supported by medical certificates or other documentary evidence acceptable to the Academic Board.
3.1.2 If the Academic Board is satisfied on evidence produced by the candidate or any other persons that there had been a material administrative error, or that the examinations or assessments or the proceedings of the Board of Examiners were not conducted in accordance with the current regulations for the course, or that some other material irregularity had occurred.
3.2 The Academic Board shall establish a committee for the consideration of cases arising under 3.1 (above). The committee to hear any particular case shall comprise four members of the Academic Board (one of whom may be a student member), none of whom shall be from the same department or associated with the same course as the student whose case is under consideration. One of the academic staff members of the committee shall take the chair, and there shall be a quorum of the committee when three members are present. A student whose case is under consideration in accordance with these provisions shall have the right to appear before the committee and to be accompanied/represented by a person of his/her choice. The committee shall hear evidence from both sides, have the right to access to all information it considers may be relevant, and shall be empowered by the Academic Board to reach the conclusions detailed in sections 3.3-3.5 below. In matters not covered in sections 3.3-3.5 below the chairman of the committee shall have discretion to act and the committee shall report its action to the next meeting of the Academic Board.
3.4 If the committee is satisfied that a particular student's results have been adversely affected by a material administrative error or by the examinations or assessments or the proceedings of the Board of Examiners not having been conducted in accordance with the regulations then in force, or by the occurrence of some other material irregularity, it shall require the Board of Examiners to reconsider its decision. The Board of Examiners shall forthwith report the outcome of its reconsideration to the Review Committee in writing, a copy of such report being sent to each member of the Review Committee via the Academic Registrar. This report shall indicate both the way in which the substantive issue referred by the Review Committee was given due and proper attention and consideration by the reconvened Board of Examiners and the decision that it has taken. If the Board of Examiners has not in the event modified its original decision and circumstances are such that in the opinion of the Review Committee due and proper account has not been taken of the relevant factors referred by the Review Committee to the Board of Examiners then the Review Committee shall decide what further action if any to take. Such further action may include a further referral to the Board of Examiners, or a referral to the Academic Board in which case 3.4.1 shall normally apply. Upon receipt of such a referral by the Review Committee and after a review of all the evidence and after hearing oral or written submissions by the Chairman of the relevant Board of Examiners, Review Committee and appellant student, the Academic Board may annul the decision of the Board of Examiners and direct the Board of Examiners and/or may take such action as it deems appropriate.
3.4.1 Where a Review Committee refers a case to the Academic Board with a view to the original decision of a Board of Examiners being annulled, the Academic Board shall refer the case to a Review Panel. The Review Panel shall consist of the Vice Chancellor (or his nominee) who shall be chairman and three other members of the Academic Board one of whom may be a student member and two of whom shall be either Heads of Department or Deans of Faculty. No one associated with the course concerned, with the matter under appeal or who is a member of the Faculty or extra-faculty unit within which the course is contained or who was a member of the relevant Review Committee shall be a member of such a Panel. The Review Panel shall consider all the evidence including oral or written submissions by the Board of Examiners, the Review Committee and the appellant student and shall report its findings and conclusions to the Academic Board which will accept the conclusions so made. If he deems it appropriate the chairman of the Academic Board may approve on behalf of the Board a referral to a Review Panel and may accept a Review Panel's findings on behalf of the Board.
4.1 A candidate who wishes to request reconsideration within the terms of 3.1.1, or any person who has or believes he/she has evidence within the terms of 3.1.2, shall request the Academic Registrar in writing to convene the committee and shall accompany the request by appropriate and relevant documentary evidence.
4.2 If the Academic Registrar is satisfied that the request falls within the terms of 3.1.1 or 3.1.2 then he shall convene the committee or proceed as provided for in 7.1(ii) below. In cases where he is not so satisfied.
...
7.1 In order to obviate the need to enact the formal review procedure described above:
(ii) if, upon receipt of a review request, the Academic Registrar believes there to be sufficient reason for recommending referral back to the Board of Examiners without invoking the formal review procedure then he may refer the case to the Academic Director who shall be empowered to direct a Board of Examiners to reconsider the case.
7.2 In cases where in the opinion of the Academic Registrar there is valid evidence of a material administrative error, or that the examinations or assessments or the proceedings of the Board of Examiners were not conducted in accordance with the current regulations for the course, or that some material irregularity had occurred, then notwithstanding anything in these procedures to the contrary, he may advise the Academic Director to direct the Board of Examiners to reconsider its decision.'
It can be seen that the academic registrar is given considerable powers and responsibilities. In particular reg 7.1 gives him a power to bypass the elaborately fair formal review procedure in favour of his own direct referral back to the board of examiners via the academic director. It is conceded by Mr Richardson, rightly in my view, that this short cut is intended for straightforward cases of manifest error. For reasons to which I will come, there was certainly on 9 July 1992 a manifest error in the applicant's case requiring correction, but the process of correction turned out to be anything but straightforward.
The applicant sat the Common Professional Examination at the respondent university on 1 June 1992. On that day and again on 4 June 1992 he was found by the respective chief invigilators, Mr Rayburn and Mr Grout, to have brought in with him several pages of notes which were on his desk. He was not prevented from completing the examinations, but was told on each occasion that there would be a disciplinary hearing.
The hearing which was accordingly held on 25 June 1992 before the Faculty Examinations Disciplinary Committee was the only oral hearing accorded at any stage to the applicant under the rules. No complaint is or could be made of its procedure or outcome save in one (now immaterial) respect. The committee had before it an allegation that the applicant had 'cheated and/or sought to gain an unfair academic advantage by using unauthorised notes in his possession'. The applicant was present and had representation, and evidence was called on his behalf both as to fact and as to character. In addition to evidence of the detail of the alleged offence, the committee read testimonials from the applicant's tutors from the University of Wales, his MP and a family friend, and a short report from a psychiatrist. His personal tutor, Miss Deehan, gave oral evidence strongly in his favour which is summarised in the minutes of the meeting. The formal memorandum to the chairman of the CPE board of examiners reported:
'The Examinations Disciplinary Panel found the student guilty of attempting to gain an unfair academic advantage by bringing unauthorised material into the examination room, where it was maintained on the desk and available for use by the student if he so wished.The panel found, however, that there were mitigating circumstances in terms of the student's mental state prior to and during the examination period.
The panel makes no formal recommendations but would ask the board of examiners to determine appropriate academic action or penalty in the light of the panel's findings.'
It will be observed that by declining to make any recommendation on academic action or penalty the committee was departing from the express requirement of reg 15 in Section IV of the faculty's Procedures for the Conduct of Examinations.
The applicant was informed of his right of appeal against this decision. Sensibly he did not exercise it. The finding against him was not harsh in the light of the admitted facts.
On 3 July 1992 the CPE board of examiners met, and adjourned to 9 July 1992 in order to obtain further information about the mitigating circumstances. The applicant asked if he could attend on the latter date but was not permitted to do so. On 9 July 1992 the board resumed its meeting. The result of its deliberation was set out in a letter to the applicant which in part read as follows:
'The (adjourned) CPE board decided that it had to consider your case under the CPE regulations (Revised September 1990) a copy of which is enclosed.Section 29(a) of those regulations states, "A student who is shown to have cheated in any course work or examination fails the Common Professional Examination and is not permitted to take the Common Professional Examination again."
The CPE board decided it must apply these regulations because on 23 August 1990, in a letter to the Assistant Secretary to the CPE board, the Assistant Director (Academic) suggested to the CPE board, which was at that time considering a revision of the CPE regulations, that reg 2.5 of the polytechnic regulations should apply (see enclosed extract from these).
In a letter dated 19 November 1991 the Secretary to the CPE board replied, "Regulation 29(c) and (b) Plagiarism. Your proposed amendment is rejected: the model regulation provisions must apply".
The adjourned CPE board apply reg 29(a) of the CPE Assessment Regulations, determined that you had cheated in the CPE examination in June 1992 and that, as a consequence, the decision should be communicated to the CPE board, to the Law Society and the Council of Legal Education.'
The history of the proposed rule revision referred to in this letter has been mentioned earlier in this judgment. It is, with respect, not easy to understand how a board of law examiners was able to conclude that where the written procedure allocated fact-finding to a separate body which heard and evaluated evidence and then gave to the examiners the task of deciding on penalty, it was open to the latter body not only to substitute a different finding but to consider penalty under a different set of rules. The academic registrar clearly did not understand it either. On 4 August 1992 he wrote to Mr Jones, the chairman of the board:
'I have examined all the papers relating to Mr Nolan's misconduct during examinations held on l June and 4 June 1992.It is my view that the reconvened CPE board of examiners held on 9 July 1992 has made a serious error in finding that Mr Nolan cheated within cl 29(a) of the CPE regulations.
Mr Nolan's conduct during the examinations was examined by the Faculty Examination Disciplinary Committee. That committee found Mr Nolan guilty of having sought to gain an unfair advantage. Whilst I am not entirely satisfied that this was the correct conclusion to reach on the basis of the evidence before it (in that the committee could have found him to be in breach of examination regulations and to have regarded this as a misdemeanour) the point is that the committee concluded that it was not clear beyond reasonable doubt that Mr Nolan had actually referred to the notes in his possession during the examinations in question. In short, Mr Nolan was found not guilty of cheating. Whilst it did not say "not guilty" the disciplinary committee's conclusion may be viewed as a verdict of "not proven".
It is our requirement that the facts in a case of alleged cheating be separately established. That is to say, it is for the disciplinary committee to determine the question of whether or not cheating had taken place and to report its findings on matters of fact to the board of examiners. The committee may recommend to the board of examiners such a penalty as it think fit but the final decision lies with the board of examiners. In this case, had it been established that Mr Nolan had cheated the board would have been obliged to act in accordance with CPE reg 29(a).
The key point is that it is the disciplinary committee and not the board of examiners which determines whether or not Mr Nolan had cheated. In that the responsibility of the committee is quite clear, it is not for the CPE board to reconsider the facts of the case and to substitute its own conclusion for that of the disciplinary committee. Thus the resolution put to the board by Mr Newsome and subsequently carried should be deemed to be of no effect as it is both ultra vires and contrary to the procedures under which Mr Nolan's case was being dealt with. The only question for the board of examiners to consider was that of what penalty, if any, to impose on Mr Nolan following the finding of the disciplinary committee that he had sought to gain an unfair advantage.
It seems to me that the board may have been uncertain how to act on this point due, possibly, to the fact that the CPE regulations do not refer to such a category of offence. They refer only, in this context, to cheating and plagiarism. I assume that because of its uncertainty the board chose in effect to reinterpret the phrase "attempting to gain an unfair academic advantage" (see para 7 of disciplinary committee report) as cheating. Given that this is in our regulations distinguished from cheating, it follows that the two terms are not interchangeable and the one cannot be substituted for the other particularly by a body other than that set up to determine the question in the first case.
As Mr Nolan had not been found guilty of cheating, CPE reg 29(a) should not have been applied. Notwithstanding the silence of the CPE regulations on the offence of which Mr Nolan was found guilty, the board could have exercised its discretion and imposed such a penalty as it considered appropriate having regard for the disciplinary committee's conclusion and view that there were mitigating circumstances.
My advice is that the board of examiners should be reconvened and that it should revoke its decision and then proceed to determine what action if any it wishes to take in terms of imposing a penalty on Mr Nolan. In the event of this not being practicable or of the board not accepting this advice, I would ask the Academic Board to annul the decision.'
The following day the academic registrar wrote to the applicant:
'Dear Mr NolanI have examined all the papers relating to your conduct during examinations held on 1 June and 4 June 1992 when you were found to be in possession of unauthorised notes. I note in particular that the finding of the examinations disciplinary committee was that you were guilty of the offence of attempting to gain an unfair advantage by bringing unauthorised material into the room.
Whilst this in itself is a very serious offence, recommended for expulsion, it is nevertheless a different offence to that of cheating. As you are aware, CPE reg 29(a) prescribes the outcome for a student "who is shown to have cheated".
As it has not been shown that you cheated, the board of examiners should not have applied reg 29(a) to you. I am therefore referring your case back to the board of examiners for further consideration.'
The letter went on to explain what functions then fell upon the board of examiners and reminded the applicant rightly that the academic registrar could not prejudge how the board would deal with the matter and that the applicant should continue to be aware of the seriousness of his position. Without prejudice to those matters, however, the registrar in the letter suggested that the applicant should apply for a resit of his examinations in case a resit became available to him upon the final decision of the board of examiners. The letter went on:
'I must emphasise that I am not giving you any indication of how the board will act, as I cannot do so. I am trying to give you some helpful advice which may assist you.'
The applicant has accordingly resat the examination, but the results are held in abeyance pending the outcome of these proceedings.
The academic registrar took the summary course provided for in para 11.7 of the review procedure and referred the case via the academic director to the CPE board of examiners for reconsideration. The board met on 22 September 1992, chaired by Mr Rayburn who had been one of the chief invigilators at the examination. Also taking part were the other chief invigilator Mr Grout and the applicant's personal tutor Miss Deehan who had given evidence for him at the original hearing. The full minute of the item concerning the applicant, which has been disclosed for the first time in these proceedings, reads as follows:
'D. Nolan had appealed against the decision of the CPE examining board, as outlined in the minutes of 3 July 1992.The academic registrar reiterated the circumstances of the case, the decision of the CPE examining board. He informed the board that there was an inconsistency in the decision given by the board under reg 29(a) of the CPE regulations and the polytechnic regulations. Regulation 29(a) could only come into effect if the disciplinary panel had found the student guilty of cheating. The academic registrar said that he had considered the case very carefully and had also consulted with the dean and Mr Telling of the CPE board. They had all reached the same conclusion in that the CPE examining board had acted in error in applying reg 29(a) of the CPE regulations to the case and that the board should reconsider the matter under the existing regulations of the polytechnic.
The board was advised that:
1. It should rescind the decision of the July meeting as being based upon an inappropriate regulation; and
2. It would then be open to the board to consider the gravity of offence and impose a suitable penalty. Letters of mitigation from Mr Nolan and his parents were read to the board and were borne in mind.
It was proposed by E. Newsome and seconded by J. Pagett that the decision of the July board should be rescinded.
The motion was carried.
The board then considered the student's performance in the light of the disciplinary committee findings and it was proposed by E. Newsome and seconded by J. Pagett that D. Nolan should be deemed to have failed the full diet of the June examinations (in accordance with para 2.5 of the faculty examinations regulations).
The motion was carried.
It was further proposed by J. Pagett and seconded by T. Grout that Mr Nolan should not be allowed to retake the examinations.
The proposition was carried by a vote of 8:6.
The decision of the board, therefore, was that Mr Nolan was deemed to have failed all the June examinations and was not permitted to resit the examinations.
The academic registrar advised that the decision would be reported to the CPE board on the basis that he had failed the examinations and that he would also communicate the decision to D. Nolan.'
In his affidavit the academic registrar, Mr Karczewski-Slowikowski, has confirmed that, as minuted, the applicant's and his parents' letters were read by the board of examiners. Inferentially, and without opposition from Mr Richardson, I find that there were not before the board the testimonials from the applicant's tutors at Cardiff and his MP, nor the letter from the consultant psychotherapist, all of which had been before the disciplinary committee on 25 June 1992 and had palpably influenced that committee in the applicant's favour. Nor, apparently, were the minutes of the disciplinary committee before the academic board.
Upon this foundation the following questions arise:
1. Are the CPE regulations exhaustive of the disciplinary offences which an examination candidate can commit?
2. If they are exhaustive, does the CPE offence of cheating include attempting to obtain academic advantage by deception?
3. If they are not exhaustive but are complementary to the faculty regulations, then,
(a) was there a denial of natural justice on 22 September 1992 such as to render the hearing invalid?
(b) did the board approach the subject matter on a correct basis of law?
(c) did the board take into consideration all the factors it should have done?
(d) did the board arrive at a penalty which was reviewably unreasonable or disproportionate?
4. If there was an error of process or of law, ought relief to be refused because of the applicant's failure to exhaust his domestic remedies?
Question 1: Are the CPE regulations exhaustive?
I accept Mr Richardson's argument that the CPE regulations are not exhaustive. It is unnecessary to rehearse his convincing reasons in detail. It is sufficient to say that putting the Faculty Procedure for the Conduct of Examinations alongside the Law Department's CPE Assessment Regulations, there is at once seen to be a great range of essential topics covered by the former and which would be unregulated if the latter were exhaustive. These include the mode of conduct of written examinations and the invigilation of them.
In my judgment the CPE regulations are intended to and do supplement the faculty procedure. In consequence, in addition to the offence of cheating provided for by both sets of rules, and of which the applicant was acquitted, there was a distinct offence of attempting to gain an unfair academic advantage and the disciplinary committee was entitled to find the applicant guilty of it. Had he been found guilty of cheating, CPE reg 29(a) would have bitten and the applicant would have been automatically failed without any opportunity to resit.
This being so, Question 2, a difficult question, does not arise, but Question 3 does. I take its elements in turn.
(a) Was there a denial of natural justice such as to render the hearing invalid?
Miss Hitchcock puts under two main heads her submission that there was a denial of natural justice by the board of examiners on 22 September 1992:
(1) the presence and participation of both invigilators;
(2) the refusal to allow the applicant to attend and be heard.
Both sides accept that on the recent authority of the House of Lords in R v Gough [1993] 2 WLR 883, at lowest a real danger of bias must be established. But I would also accept Mr Richardson's submission that, by analogy with the differential that can be seen between judicial bodies such as were considered in R v Gough and planning authorities such as were considered in R v Amber Valley District Council ex parte Jackson [1985] 1 WLR 298, what amounts to an unacceptable bias in a domestic or academic body has to be decided by careful reference to the framework of law and rules within which it operates. Here we have to consider the procedures of the board of examiners of a university adjudicating on a student's misconduct in an examination. In such a context, Mr Richardson submits, it is a normal and acceptable starting-point that the student, who has already had a full hearing before the disciplinary committee, should be excluded and that academics with knowledge of him or of the events leading to the charge should be able to be party to the decision.
For my part I am prepared to accept this, but only with a qualification. The contextual starting-point is not necessarily determinative of the outcome, for much may depend on external factors. Thus the rule excluding students from examiners' meetings except for viva voce examination can be sustained where, as here, a student on a disciplinary charge has a right to a full prior hearing by a fact-finding body. But I would not regard such a rule as beyond challenge if its effect were to rob a student altogether of a hearing by or on behalf of those who were to judge him, not - I stress - on examination performance but on the academic equivalent of a criminal charge. Similarly I would think that there are limits to the propriety of staff participation. Where, for example, the student faces a charge arising from some direct and personal conflict with a member of the academic staff, the rule against sitting as a judge in one's own cause may well supervene so as to require that member of the staff to stand down from the adjudicative body.
Miss Hitchcock submits that this is such a case. She says that the applicant had no opportunity to rebut detrimental views about him expressed at the meeting. She relies on R v Barnsley Metropolitan Borough Council ex parte Hook [1976] 1 WLR 1052 and R v Governors of the London Oratory School ex parte Regis [1989] Fam Law 67 for the proposition that even outside the judicial sphere the rule against bias, including the appearance of bias, applies. This I can readily accept, but it does not defeat Mr Richardson's argument that what amounts to bias is not a fixed quantity but a function of the procedure under scrutiny and the events occurring in the course of it.
In the present case I am not satisfied that on either score the proceedings of the board of examiners on 22 September 1992 were vitiated by a breach of natural justice . But it is relevant to Miss Hitchcock's further submissions that it is only because of the full prior hearing at which the material facts were found that I come to this conclusion. It was the obligation of the board of examiners to accept and not to revise or go back on the findings of the disciplinary committee. If this were loyally done, the want of a formal hearing and the presence of the invigilators was in my view unobjectionable. Whether what followed was in order falls to be considered under the coming heads of argument.
(b) Did the board approach the subject matter on a correct basis of law?
Miss Hitchcock next submits that the board of examiners misunderstood their function. They took it to be either an appeal against or a review of the decision of 9 July 1992 when in truth it was the sole hearing on the question of penalty under reg 2.5 of the faculty procedure.
While it is true that the minutes begin by referring to the hearing as an appeal and go on to show no votes except on two motions which together reproduced the outcome of 9 July 1992, it is not right to infer - as Miss Hitchcock asks us to - that nothing else entered into consideration. In particular I am not willing to infer that these are not simply laconic minutes setting out the bare bones only of what was transacted. Although the matter had reached the board by the 'short' procedure, the evidence of the academic registrar was that the board knew what they were seized of and that they had under reg 2.5 to judge the seriousness of the offence and 'exercise discretion in a manner appropriate to the case'. They chose to do so in ways spelt out in reg 2.5, and I am satisfied on the evidence that they knew in principle what function they were being called on to perform.
(c) Did the board take into consideration all the factors it should have done?
In approaching its task, however, the board had limited material. The academic registrar in para 15 of his second affidavit says:
'I have no doubt having attended the meeting in person that the board was aware of the mitigating circumstances. They were referred to in discussion the board was aware of the applicant's previous achievements and certainly approached its decision on the basis that he was of excellent character. It was fully aware and certainly accepted that he was under stress at the time of the examination. As against this however the board had to deal with infraction of an important regulation governing a professional examination.'
If there had been a full oral hearing before the board it would have been up to the applicant to present what material he wished to them, but he had no right to attend and was entirely dependent on what was placed before the board in his absence. It emerges from the evidence - as I have found - that this did not include some important statements in mitigation. In the absence of the recommendation as to penalty which the disciplinary committee should have made and of the disciplinary committee's own minutes and (inevitably) of the applicant himself, this lacuna was certainly significant and may well have been crucial. I am unable to accept Mr Richardson's submission that everything material was substantially known to the board.
I am reinforced in this by three further factors. First, this was the same body as had taken the ultra vires decision on 9 July 1992. While, on good advice, it had rescinded that decision and started again, it behove the board to be doubly cautious in what it then did. Secondly, anticipating for a moment the next head of argument, it was on any view a surprising decision that was reached, suggesting that something material in the applicant's favour may well have been overlooked. Thirdly, I am not convinced that the mere presence of the applicant's personal tutor Miss Deehan affords an assurance that the powerful mitigation which she is minuted as having advanced for him on 25 June 1992 was repeated at the board meeting on 22 September 1992. In the applicant's absence and in the absence of any evidence of what role she played at the latter meeting it would not be right to infer that her voice was heard, or as clearly heard, in the applicant's favour as it had been before the disciplinary committee.
I would therefore hold that there was a material failure on the part of the board of examiners on 22 September 1992 to take into account matters which it was incumbent on them to take into account, namely the full evidence in mitigation which had been placed before and accepted by the disciplinary committee. Such a failure will ordinarily vitiate the material proceedings and nullify the decision.
(d) Did the board arrive at a penalty which was reviewably unreasonable or disproportionate?
Before considering relief, however, it is necessary to consider Miss Hitchcock's submission that the decision is also void for irrationality or for violation of the principle of proportionality. I will assume for this purpose that proportionality is potentially available today as a discrete head of challenge in appropriate cases: see R v Home Secretary ex parte Brind [1991] 1 AC 696. The submission is a powerful one on the facts. The applicant had been acquitted of the most serious offence, cheating. The disciplinary committee had expressly accepted that he had good mitigating factors in his favour. Yet the board of examiners imposed the severest penalty available, the prescribed penalty for cheating, effectively putting an end to the applicant's chosen career. What, Miss Hitchcock forcefully asks, is left for cases of cheating?
I have already expressed the view that this asymmetry of crime and punishment reinforces the view that something material was overlooked. But it is a further step from an oversight to an intrinsically untenable decision and I am not persuaded that it is a step which this court should take on the evidence. There was proof of an offence which, although it fell short of cheating, was serious. It was and is in my view for the decision-making body of the university to decide, given the acceptance of the mitigating evidence and the conclusive finding of a lesser offence than cheating, and bearing in mind the proverbial relationship between being hung for a sheep and for a lamb, what is the appropriate penalty or disposal for the applicant.
I am not prepared to hold that it could never be or could not on the limited evidence then before the board have been a rational or proportionate response to fail a student for good for something less than cheating. It is for the board of examiners, subject always in the absence of a visitor to this court's supervisory jurisdiction, to exercise a conscientious judgment on the material properly put before it. This I have no doubt it will now do (subject to the answer to the final question, to which I next turn) but this time on the full body of material which ought to have been before it and was not, and again subject to the precise limits and purposes of the board's function.
This brings me to Question 4: If there was an error of process or of law, ought relief to be refused because of the applicant's failure to exhaust his domestic remedies?
Mr Richardson submits that the applicant ought in any event not to have the assistance of this court in the exercise of its discretion because he failed to use the respondent body's own review procedure to challenge the decision of the board of examiners of 22 September 1992. Miss Hitchcock answers this effectively: to do so, she says, by virtue of reg 3.1.2 the applicant needed evidence of a material irregularity; but he had been refused a copy of the minutes of the meeting of 22 September 1992 and so had no such evidence or at least not enough of it. It has only been in the course of this application for judicial review, for which leave was granted on wider grounds, that the minutes have come to his hand, establishing the limit of the material actually put before the board.
I would not consider this to be a proper case for an adverse exercise of discretion, both on this ground and because the available recourse would not have been as certain or as full as the recourse to law.
I would therefore grant the relief sought in the form of certiorari to quash the decision of the board of examiners of 22 September 1992. Since this would technically revive the board's untenable decision of 9 July 1992 which was rescinded only by the deficient September 1992 decision, Miss Hitchcock is entitled out of caution to drive a stake through its heart, and I would grant certiorari to quash the earlier decision as well.
Subject to submissions of counsel, I do not consider any of the other forms of relief sought to be necessary or appropriate in the circumstances and in the light of the reasons given in this judgment.
JUDGMENT BY MANN LJ
I agree.
DISPOSITION
Decisions of 9 July and 22 September 1992 quashed. Matter remitted to the Common Professional Examination Board of the Manchester Metropolitan University. Costs for the applicant. Legal aid taxation.
SOLICITORS
Morecroft Dawson & Garnetts for the applicant
Addleshaw Sons & Latham for the
respondent
DOMINIC MCGOLDRICK BARRISTER