Clarke, R (on the application of) v Cardiff University

A decision-making body acts unfairly where persons with first-hand knowledge of disputed facts participate fully in deciding an application, while also presenting an account adverse to the applicant’s credibility. This is especially so where their views may materially influence the outcome. The court should distinguish between providing factual information and participating in the substantive decision. An academic appeal or review process must also give the applicant a fair opportunity to respond to adverse factual material. A challenge to a superseded decision will generally be academic where relief could have no practical effect, but a decision with continuing consequences may still properly be reviewed.

The claimant challenged decisions concerning her results on a Bar Vocational Course provided by Cardiff University. She alleged that the process for considering extenuating circumstances affecting a Negotiation assessment was procedurally unfair because two members of staff who had been involved in the events also participated in the decision.

She also challenged decisions concerning the marking of an Advanced Criminal Law assessment. During the proceedings, that issue was reconsidered and the claimant was awarded a Competent grade, which she accepted. The remaining substantive issue was whether the decision of the Extenuating Circumstances Committee, and the subsequent decision of the Re-Convened Examination Board, should be quashed.

1. The court declined to consider the lawfulness of the Re-Convened Examination Board’s later decision concerning Advanced Criminal Law. That decision had been superseded by the Awards and Progress Committee, and any relief would have had no effect on the claimant’s accepted Competent grade.

2. The decision of the Extenuating Circumstances Committee concerning the Negotiation assessment had continuing practical significance. The claimant might otherwise have to disclose that she had initially failed and retaken the assessment.

3. The Committee acted unfairly. Mr Jerram and Ms Walsh had first-hand knowledge of the disputed events immediately before the assessment. They gave accounts which were adverse to the claimant and capable of affecting the assessment of her credibility. They nevertheless participated fully in the decision-making process. Their role should have been confined to providing factual information, with the substantive decision taken by persons who had not been involved in the disputed events.

4. The court did not regard R v Liverpool John Moores University ex parte Hayes [1998] ELR 261 as compelling a different result. That case was materially different because it did not involve persons with first-hand knowledge of disputed facts giving their version to the decision-making body and then participating fully in the decision.

5. The claimant was also arguably treated unfairly by the Re-Convened Examination Board because Mr Jerram and Ms Walsh remained present and could repeat their adverse account, while the claimant had no specific opportunity to respond. It was unnecessary to reach a concluded view on that issue.

6. The decision of the Extenuating Circumstances Committee dated 30 June 2005 was quashed. The court also proposed to quash the decision of the Re-Convened Examination Board dated 27 September 2005 insofar as it concerned the claimant’s application for extenuating circumstances.