Mustafa, R (on the application of) v The Office of the Independent Adjudicator for Higher Education

The exclusion of complaints concerning academic judgment from the jurisdiction of the Office of the Independent Adjudicator applies only to the extent that the complaint relates to such a judgment. Determining plagiarism may sometimes be mechanical, but it commonly requires academic judgment. The relevant question is the nature of the judgment required on the facts. Where the issue is whether a student’s method of acknowledging sources amounts to proper acknowledgement under academic conventions, that is an academic judgment. The OIA therefore cannot review the correctness of that determination. The court must determine whether, and to what extent, the complaint falls within the statutory exclusion; the issue is not merely whether the OIA’s view was rational.

The claimant, a student undertaking a master’s degree at Queen Mary, challenged the OIA’s refusal to consider his complaint that the university had wrongly found him guilty of plagiarism. The OIA considered that the existence and extent of plagiarism were matters of academic judgment excluded by section 12(2) of the Higher Education Act 2004, although it reviewed the penalty and certain procedural matters.

The claimant argued that his essay identified its sources through endnotes and that the issue involved only applying the university’s plagiarism rules to undisputed facts. The central issues were whether plagiarism is necessarily a matter of academic judgment and whether, on the particular facts, the university’s determination involved such a judgment.

1. Claim dismissed. The university’s finding of plagiarism therefore stood.
2. Section 12(2) of the Higher Education Act 2004 excludes a complaint only “to the extent” that it relates to matters of academic judgment. It does not exclude every complaint involving an academic judgment. The exclusion principally concerns complaints whose central subject is a dispute about that judgment. Complaints in which academic judgment is peripheral may remain within the OIA’s jurisdiction.
3. The existence of academic judgment depends on the nature of the judgment required, not on whether the decision is easy or difficult. Some plagiarism cases may involve no judgment, such as wholesale copying of an internet article presented without attribution where copying is objectively demonstrated. In such a case, determining that plagiarism occurred need not be an academic judgment.
4. Here, however, the issue was whether the claimant’s endnotes constituted “proper acknowledgement” of passages copied from websites. Resolving that issue required knowledge of academic conventions and judgment about whether the references indicated verbatim quotation or merely the source of information. The characterisation of passages as introductory, factual or analytical, and the significance of that characterisation, also involved academic judgment.
5. The court rejected the submission that the case involved merely applying rules to facts. Whether the rule requiring proper acknowledgement was satisfied was itself an academic judgment. The university’s decision was therefore not susceptible to review by the OIA.
6. The court held that the question whether a complaint falls within section 12(2) goes to the OIA’s jurisdiction. The court must determine that issue, rather than review the OIA’s decision merely for rationality. The court reserved its opinion on whether a decision concerning the appropriate penalty might itself involve academic judgment.

Permission to bring judicial review was refused twice in the High Court. Sir Stephen Sedley granted permission on a limited issue. The High Court then dismissed the claim for judicial review.