HEARING DATE 10 May 2000
University - Examination - Conferring of degrees - Claimant disputing examination marks citing extenuating circumstances - Later meeting took place but matter not considered - Evidence of meeting not disclosed - Whether non-disclosure of meeting constitutes new evidence
COUNSEL
G Jones for the Claimant;
R Warren for the Defendant
JUDGMENT BY ELIAS J
The applicant in this case commenced her studies in September 1996 at the Chelsea College of Art and Design. She enrolled in a three-year course in Fine Art leading to a BA (Hons) in Fine Arts.
At the end of each stage the students progress is assessed by an Assessment Panel who then pass their findings to the Board of Examiners. In this case the applicant presented her work in relation to Stage II, that is the second year, to the Assessment Panel which sat in May 1998. The recommendations of the Assessment Panel were then sent to the Board of Examiners, who met on 8 July 1998. The applicant was assessed as completing Stage II satisfactorily by the Board of Examiners. She was marked a B- for her studio art work and a C+ for her essays and course work in Art History. Such marks only marginally effect the actual award or degree given at the end of Stage III but they are of course an indication of how the student is progressing. Stage II results are also potentially material in that they may influence the prospect of a student doing graduate work, since applications to do such work are generally made during the course of the third year before the final examination results are known.
The applicant appealed the Stage II assessment and she set out the written grounds of her appeal in a letter dated 1 October 1998. This made reference to a number of distressing personal circumstances to which she had been subject and which she felt had not been properly drawn to the attention of the panel or the Board. It is pertinent to note that in this letter no reference was made to any extenuating circumstances arising out of any complaint of sexual harassment. The appeal was in fact lodged late but by a letter dated 17 November, the applicant was informed that the appeal would be allowed and there would be a reconsideration.
During the course of correspondence prior to that notification, the applicant raised claims of sexual harassment by her tutor. As a consequence, Colin Cina, the head of the respondent College, saw the applicant on 30 October 1998, where she made various allegations of harassment. These were subsequently to surface as part of the extenuating circumstances on which she sought to rely.
The decision to uphold the appeal had been taken by the acting Dean, Mr Yates, who was also Chair of the Board of the Examiners. He was responsible for arranging the reconsideration by the Assessment Panel. Originally, this was to take place on 30 November but the applicant objected to that date. There was then extensive correspondence about, amongst other things, precisely how the applicant should be permitted to inform the panel about the extenuating circumstances arising out of the alleged sexual harassment.
First, in a letter dated 28 January 1999, the Dean outlined the material that would be placed before the Panel and added the following footnote:
"Your letter and attachments of 1 October 1998 set out extenuating or special circumstances which you feel may have a bearing on the production of the assessed work. However, if you feel there were other aspects of your health, your state of mind, your welfare or your personal circumstances which adversely affected your work submitted for assessment, you may provide a further written statement to be supplied in writing in advance of the meeting. Any such statement must respect the sensitivities and confidentiality of matters being dealt with under separate management procedures..."
This was clearly a reference to any observations which the applicant might wish to make in respect of the sexual harassment charge. The applicant considered that this comment effectively prevented her from putting her submissions in a satisfactory way.
In a reply, dated 31 January 1999, she said that if she were unable to state precisely what the tutor did and the consequences of that, the Assessment Panel, and thereafter the Examination Board, would not be able properly to appreciate the extenuating circumstances. She wanted to put a full statement, plus two witness statements before the panel - these statements bearing on the harassment charge - so that they could consider them fully.
On 5 February, the Dean replied as follows:
"...you are aware of the sensitive and confidential nature of your witness statements. With due regard to natural justice and the law not least in protection of yourself and the Institute from charges of defamation, you are advised to concentrate on any further statement of your extenuating circumstances which you require to go in front of the panel. It is suggested that you concentrate not on what [the tutor] did but, as stated in my letter of 28 January 1999, on your health, your state of mind, your welfare or personal circumstances insofar as it might have adversely affected your work submitted for assessment."
The applicant again objected to this limitation and asked in terms, by a letter dated 7 February:
"Are you saying that you refuse to submit my statements to both the Panel and the Board?"
The applicant was told in response that she could put in a further statement regarding her extenuating circumstances but the Dean added:
"You have been aware for some time of the issues of sensitivity and confidentiality regarding the evidence of extenuating circumstances, and have been advised how you might address these matters."
The applicant clearly understood this to mean that she was prevented from presenting the full case about the extenuating circumstances which she wished to put before the Panel. In the event, the applicant provided no further statement of extenuating circumstances relating to the harassment charges. She appears to have taken the view that either she should be entitled to draft the document in her own way or it would not be provided at all. In its place an anonymised summary of the allegations, creating potentially extenuating circumstances relating to the harassment, was provided by the College itself.
The applicant does not accept that the document provided fully and fairly reflects the effect that the alleged harassment had upon her and, of course, it was not an agreed document. (I should, however, add that in the event the allegations of sexual harassment were subsequently found to be unsubstantiated.)
The reassessment by the Panel took place on 17 February. The applicant chose not to attend, despite the fact that the principal matter affecting the assessment exercise, as one would expect, was the work she provided. The recommendation of the Panel was made and considered by the Examination Board on 19 April 1999. The decision of the Board was that the applicant should be awarded a grade B- in studio work and C+ in Art History/Theory. As an additional recommendation the Board said that at presentation for the degree - that is Stage III, the final examination - all the extenuating factors and circumstances pertaining to the applicants progress in Stage II would be placed before the final Examination Board before its decision was reached.
This decision was communicated to the applicant on 29 April. By a letter dated 13 May the applicant indicated that she wished to appeal against this reconsidered decision by the Examination Board. The grounds included a complaint that the panel had refused an adjournment. But, most significantly, the complaint was that the applicant was prevented from submitting her statement as she wished because of the restrictions that had been imposed upon her, and that the substituted statement of extenuating circumstances provided by the College was not agreed by her. It is clear, by implication at least, she was saying that that was an inappropriate and unsatisfactory document.
The Dean replied by letter, dated 10 June, in which he said that the Colleges Academic Committee would hear the appeal in accordance with reg 8(3) of Ch 6 of the Academic Affairs Handbook. He emphasised that in accordance with that provision the Academic Committee could only consider whether there had been a material irregularity by the Board of Examiners. He also stated that the Committee would not include anyone as a member who either had been involved in the delivery of the applicants course or in the determination of Stage II grades. He informed the applicant that the committee was to be chaired by Miss Linda Drew, the Colleges Quality Assurance Manager.
There were then two relevant matters which occurred prior to the appeal: first, the applicant asked for a list of all the documents and letters that would be put before the Committee - but these were not provided to her; second, on 9 January 1999 Miss Drew had what she described as a briefing meeting with the Dean and the Head of the College, Mr Cina. In a statement made in the course of these proceedings she described the discussion that took place as follows:
"Colin told me at the meeting [that is Colin Cina] that there were some sensitive issues and he briefly outlined to me the confidential and sensitive issues in question. He advised me that if anything came up about these sensitive, confidential issues they would be outside the grounds of appeal and he showed me papers which contained the sensitive and confidential material. This was the only way I would know in advance of what these issues were before the Academic Committee meeting. The issues had to be identified in case they came up.Colin went through the general history with me and the background of the matter. I understood that whilst an anonymised summary of any extenuating circumstances, including accusations of harassment might be admitted, the Academic Committee should take care that any member of staff who was the subject of any accusation be protected by the anonymised summary procedure which is the best way to achieve this. The appeal was limited to that regulation."
The Academic Committee met on 12 July. It is common ground that the applicant provided a bundle of documents which included a summary of the arguments she wanted to advance orally as well as other documentation. All the members were given the material. What happened then is again described by Miss Drew as follows:
"She [that is the applicant] produced a large bundle of papers which no one had seen before, which were individually labelled to all members of the Committee. All the members, including myself, started to read the bundle of papers until I reached page 2 early on in the bundle in which she had made a number of allegations of harassment against a member of staff. I then interrupted the reading of the bundles by the other members and told them they should read no further. I repeated what I had said to her earlier that she was restricted to the material irregularity ground for her appeal under reg 8.3. The Committee recessed and I asked Aletta Nash and her father to leave and all her bundles were piled in the centre of the table and later handed back to her. In her absence I went again through the grounds of the appeal before the Committee and referred again to reg 8.3. I said that she could refer to mitigating matters in general terms as part of the material irregularity complaint. When she came back in with her father at approximately 12.50pm I returned her bundles to her and invited her again to make a verbal statement about her grounds of appeal under reg 8.3. She queried this and said will you not hear my case? In response I said yes but it had to be within the limits of reg 8.3. She declined to do so and left with her father."
The document to which reference is made, and which caused the Chair to advise members to read no further, identifies the tutor and states that complaints of sexual and other harassment had been made against him. There was also, in fact, the misleading and unjustified comment that the complaints had not been properly or fairly heard whereas in fact they had been heard and rejected.
The document itself did not however, identify in any detail at all the nature of the allegations that had been made. It did not, in other words, set out the chapter and verse of the complaints, although they were to some extent found in other documentation attached to these oral submissions. The Committee concluded that there had been no material irregularity and, accordingly, the appeal was rejected. The Grounds of Challenge
The application for judicial review raised a number of grounds, although leave was given by Latham J in respect of only one of them, namely whether the Academic Committee was right to restrict its jurisdiction to determining whether or not there had been a material irregularity by the Board.
However, before me the applicant sought to argue further grounds arising out of the evidence, and no objection was made to this. Accordingly, I agreed to hear these matters which the applicant sought to pursue. These other grounds can be summarised as follows:
"(1) The Committee acted unfairly in refusing to consider the other documentation provided by the applicant.(2) It acted unfairly in refusing to give the applicant a list of the material on which it was intended to rely.
(3) Miss Drew, the Chair of the Committee, should not have been briefed by the Dean and the Head of College. It is said that she thereby permitted those others to determine matters which it was for the Committee alone to decide.
(4) A related but analytically independent point to (3) is that it is alleged that the decision to refuse to consider the material which the applicant sought to produce was a decision of the Chair alone (even if acting pursuant to the guidance given here at the earlier meeting); whereas, in fact, it ought to have been a decision of the whole Committee."
As I said, initially the principal ground is that the Committee had improperly restricted its jurisdiction. This raised a question of the construction of the relevant rules. However, it became clear during the course of the hearing that strictly it mattered not whether the grounds were limited to material irregularity or were indeed wider than that. The reason is that the complaint is not simply that the Board failed to consider irrelevant facts but rather that the applicant was prevented, by a deliberate decision taken by the College, from putting before the Panel, and thereafter the Board, all the material on which she wished to rely in relation to the sexual harassment matter.
It was realistically accepted by Mr Warren, on behalf of the respondent, that the decision would itself fall within the category of material irregularity. Accordingly, even on the Colleges construction of the rules, there would have been a breach by the Examination Board if their refusal to consider the applicants version of the harassment allegations had been improper.
However, given that I have heard full argument on the point I will briefly consider this aspect of the case. The rules, as I said, are contained in Ch 6 of the Academic Affairs Handbook. Chapter 6 is entitled Decisions of Boards of Examiners and Appeals. Part 5 is headed The Grounds for Student Appeals, it states as follows:
"A student may appeal against the decision of a Board of Examiners if he or she can argue that:a) there are facts which were not known to the Board of Examiners, which had they been before the Board might, prima facie, have led the Board to a different decision, or;
b) there was material irregularity in the conduct of the assessment, and either;
c) there were good and sufficient reasons why the student did not make the facts known before the meeting of the Board, or;
d) the facts were made known by the student but were not made known to the Board as such...
If the student can argue that reasonable efforts were not made to brief all students on their obligation under 2.2 above, then this may be considered a good and sufficient reason under c) above."
Part 6 sets out the appeal procedures. The Chair of the Board of Examiners may decide that there are sufficient grounds for the matter to be reviewed and that is what occurred here later, as I have indicated, in relation to the first appeal. Otherwise, however, the appeal is to be heard by an Appeal Subcommittee, which is a subcommittee of the Academic Committee, or by the Academic Committee itself.
Part 7 sets out the composition and the role of the appeal subcommittee. Part 4 is headed: Circumstances in which decisions may be reviewed. Paragraph 4.1 provides:
There are only two cases in which a decision of a Board of Examiners may be re-opened:
"a) if it is established that there are facts which were not known to the Board of Examiners which, had they been before the Board might, prima facie, have led the Board to a different decision, or;b) if it is established that there was material irregularity in the conduct of the assessment."
Any reconsideration however under that part has to be made by the Board of Examiners itself.
Part 8 is headed: Reconsideration of decisions of Boards of Examiners following an appeal. Paragraph 8.2 provides as follows:
"The reconsideration of a decision of a Board of Examiners should proceed in every way as though the Board was reaching its decision for the first time."
Paragraph 8.3 provides:
"Unless the Academic Committee or the Academic Board believes that there has been material irregularity, the reconsidered decision of the Board of Examiners or a committee which it has established under 4.8 above, shall be final."
It then curiously says, see 8.8, but in fact there is no para 8.8 in existence.
The dispute in relation to the question of construction is whether 8.3 applies so that the only ground on which the Committee could interfere with the decision of the Board of Examiners is that there was a material irregularity; or whether there is, in effect, an appeal under reg 5, in which case there is the potentially additional ground: namely, facts unknown to the Board which might have caused the Board to reach a different decision.
The argument in favour of the latter is principally that since the reconsideration must proceed in every way as though it were a first decision, it should be capable of being appealed in that same way; that is in the same way as the initial decision could be appealed. On this argument para 8.3 is to be limited to cases where there is a review of a decision by the Academic Committee or the Academic Board which is taking place independently of any appeal by a student. The possibility that this may occur seems to be envisaged by Pt 4, although the position is not altogether clear.
The contrary argument is that there has been a clear distinction between the initial consideration, which can be appealed under Pt 5, and a reconsideration, which cannot. The reconsideration on this analysis has to be treated in the same way as the initial consideration, to the extent that the Examination Board must approach both in precisely the same way. But only the initial decision itself is then subject to any right of appeal. Any reconsideration of the decision of the Board of Examiners following an appeal has to be made, it is submitted, under 8.3. and that provision, in clear terms, limits the grounds to material irregularity. On this analysis it seems to me that a student would have the right to alert the Academic Committee or Board to the possibility of those material irregularities, and could make representations, on that issue, but this would not strictly be an appeal pursuant to Pt 5 at all.
I have not found this an entirely easy matter. But, on balance, I prefer the respondents conclusion. The heading of Pt 8 seems to me important, and it is: Reconsideration of decisions of Board of Examiners following an appeal. The wording in para 8.3 is very clear. It provides in terms that the reconsidered decision should be treated as final, save where the Committee or Academic Committee or Board believes that there has been a material irregularity.
There is, moreover, some rationale between this distinction and between the initial and reconsidered assessments. If facts are not considered that ought to have been, that will justify reconsideration. However, one would assume that the student would, following the initial decision, identify all relevant facts which it is alleged were not taken into account and should have been. That, as it were, is the opportunity which has been provided to remedy that particular defect. Thereafter, the only ground for complaint can be if there was a material irregularity. In any event, whatever the precise rationale of this distinction, it seems to me that the argument advanced by the respondent is correct as far as the question of construction is concerned.
However, as I have said, it does not matter since the complaint of the applicant is that there was a deliberate decision to refuse to consider the material which she wished to advance. In these circumstances it is accepted that that would constitute a material irregularity if established.
I now turn to consider the other matters relied upon. First, it is alleged that the Committee acted unfairly in failing to consider the documentation replied upon by the applicant and which she wished to put before them. In general, fairness requires that a decision maker should consider the representations which an affected party wishes to make. This is the very essence of natural justice. In my opinion, there may be exceptional circumstances where the material being relied upon is plainly irrelevant, or the representations are made for an improper purpose and not as a genuine contribution to the relevant decisionmaking process. Even then it would almost always be prudent for the material to be considered, if only because it will in most circumstances be impossible to know until the representations have been looked at precisely whether they do fall into either of these categories. However, the desire to respect confidentiality, which was relied upon in this case, is not of itself a justification for refusing to consider otherwise relevant material.
In my view, there is no reason in principle why in an appropriate case representations may not be adapted so as to eliminate the identity of the individual named, provided the specific identity is not material to those representations. Exceptionally, of course, the courts will protect the identity of informants who provide information in confidence where the public interest requires that to be done. But even where appropriate steps can properly be taken to conceal the identity of parties named in the representation, the need to protect their identity, or the desire to do so, cannot constitute a justification for refusing to consider the representations at all.
In this case it appears from Miss Drews statement that the material was excluded because it referred to sensitive and confidential material. It could not, in my view, be rejected on that ground. Moreover, the submissions which the applicant was seeking to make could not properly be made without a reference to the fact that a sexual harassment complaint had been made against her tutor. Her contention was, rightly or wrongly, she could not properly convey the adverse effect of this conduct without descending into chapter and verse. She was not in that particular document - which caused the Chair to refuse to consider the submissions - actually identifying the specific incidents. Indeed, by adopting the rigid stance that anything relating to the sensitive and confidential matters was outside the grounds of appeal, the Chair was, in my view, effectively preventing this part of the appeal from being properly made.
I recognise that the applicant was permitted to make oral representations but it must have been wholly unclear how they could have been advanced in the light of the ruling that the Chair had made. It appears that the Chair was seeking to give effect to the outcome of the discussion she had had with the Dean and the Head of College; whether she misunderstood that guidance or whether the guidance was too restrictive is not clear, and perhaps not profitable at this stage to establish. Either way, the effect, in my view, is to prevent the applicant making the submissions she wished to make.
I have no doubt whatsoever that the briefing was made entirely in good faith and in an attempt to have regard to the interests of the tutor, who had been the subject of complaints which had, by the date of the appeal, been found to have been unsubstantiated. Moreover, it will in principle be perfectly proper in an appropriate case to brief someone about how he or she should approach the task of being Chairman of a Committee of this kind. In this case, however, the briefing appears to have been based on a misunderstanding of the legal position. In any event, it was for the Committee to decide upon the propriety of the representations which the applicant sought to submit in the light of the particular content of those representations.
Furthermore, if any decision of the kind was to be taken to limit the material submitted, in my view that should, in the circumstances, have been taken by the Committee as a whole. In fact, it seems to have been a decision of the Chair. As I have indicated, Miss Drew apparently stopped the other members of the Committee considering the material when she had read ahead and noted its content.
I consider that the case here is analogous to that of R v Wakefield and Board of Education (Schools Appeal Tribunal) ex parte (Check) (1998) Education Cases Report page 566. In that case the question was whether a pupil could be excluded from a school by a Governors Disciplinary Committee when the Committee had earlier concluded that he should not be so excluded. The Chair of the Committee took the decision that, as a matter of law, it was open to the Committee to exclude him. Ognall J held that this was a matter which should have been made by the Committee collectively. That was so even where the issue was one of law. In my view if, on a proper construction of the rules, the Committee is charged with determining a particular question then they must do so even in cases where the Committee consists of laymen and the issues they have to determine involve questions of law or mixed facts of law.
Finally, the question also arises whether the applicant should have been informed of the material which was to be placed before the Committee. It is a strong principle of English law that a decisionmaking body should not consider relevant material without giving the affected person the right to comment upon it: see, for example, Wiseman v Boardman [1971] AC 297, [1969] 3 All ER 275 per Lord Morris at 309 of the former report, and per Lord Wilberforce at page 320. As Sedley J pointed out in R v London Borough of Camden ex parte Paddock [1995] COD 130, this applies as much to public administration as it does to adjudication.
It is true that in this case the material consisted largely of correspondence known to the applicant. However, without a list of the documents, she was not able to be sure which aspects of the various correspondence were thought to be potentially significant by the Committee. Moreover, as Miss Drew testifies in her statement, the material in the pack of documents made available to the members of the Committee was considered and debated for an hour before the Committee reached its decision. This shows commendable fairness by the Committee, but it also suggests that the background material as provided was considered to be of some real significance.
It is well established here that the question is not whether the applicant was in fact prejudiced but rather it is whether there is a risk of prejudice. As Kerr J put it in Lake District Special Planning Board v Secretary of State For Environment 236 EG 417; the appropriate test is:
"Would a reasonable person, viewing the matter objectively and knowing all the facts which are known to the Court, consider that there was a risk that the procedure adopted by the tribunal in question resulted in injustice or unfairness?"
That test has been followed in a number of cases including, relatively recently, by the Court of Appeal in R v Secretary of State for the Environment ex parte Slot [1998] 4 PLR 1, [1998] JPL 692.
I cannot in this case say that all risk of unfairness was eliminated. Accordingly, I consider that there was a breach of the principles of fairness here also. For these reasons I consider the Committee did err in the way it approached its task. It has been urged upon me that even if there were defects in the procedure they would have made no difference to the outcome. This is an argument that is very rarely accepted by the courts, for obvious reasons. It must be in the very plainest of cases, and only in such cases, where one can say that the breach could have made no difference. In my opinion, it is not possible in this case to say that the Committees decision would inevitably have been the same even if the Committee had acted in accordance with its legal obligations.
I should add this: I have considerable sympathy for the College in this case. It was placed in a situation where allegations were made that sexual harassment had adversely affected the ability of the applicant to perform to the best of her ability. This was however only one of a number of potentially relevant matters bearing upon the decision to be taken by the Assessment Panel and Examination Board. Indeed, it was only one of the extenuating circumstances that was relied upon. The principal factors affecting the grades were not the extenuating circumstances but for the work submitted by the applicant herself. Moreover, the Stage II grades, as I have said, have only a marginal effect on the ultimate award, which was determined primarily by the students performance in Pt III. In this case the extenuating circumstances relating to harassment were not initially part of the appeal and they were disputed. It was an extremely difficult position for the College to be in to determine how in these circumstances they could properly and fairly assess the significance of this material.
In my opinion, the applicant was perfectly properly told that the important question was how far the alleged harassment had affected her ability to work normally. Her perception of harassment, if genuine, even if misplaced (as it was subsequently shown to be) could clearly have an adverse affect on her performance. The Panel and the Board accepted in her favour that she had been genuinely affected by the conduct alleged. Furthermore, in my opinion, it was unnecessary for the applicant to seek to present what was, in effect, the whole substance of her harassment claim in the context of providing an explanation of this particular exceptional circumstance. Nor is it plain to me why the applicant appeared to have been so unwilling to respect the confidentiality of the tutor involved. The key point, as it seems to me, is that the relationship with her tutor was an issue and the identity of the particular tutor in the context of this matter, not of course in the context of her complaints about the harassment, would not seem to be material. The complaint of harassment could not of course have been determined by the Assessment Panel or the Examination Board. However this application is not concerned with the reasonableness or otherwise of the applicants conduct. It is within a much smaller compass. The applicant contends, and is entitled to contend before the Academic Committee, that she was not given a proper opportunity to put her case before the Panel and the Board and that the statement which the College had provided did not fairly reflect the true flavour of the stress that she was under, arising from the perceived harassment.
For reasons I have given, and although I have no doubt that the College did its level best to act fairly to all parties involved, I do not think she was able properly to make the representations to the Committee that she should have been entitled to make. It follows that this application for judicial review succeeds.
DISPOSITION
Application allowed.
SOLICITORS
Teacher Stern Selby; Kingsley Napley