England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds, West Yorkshire LS1 3BG
		22nd June 2012

1. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Christian Echendu is aged 42 years. He was, as I understand it, educated in law at a university in Nigeria. He enrolled at the school of law at the University of Leeds to undertake a Masters degree in law.
2. During the period of time that he was at the university he was found guilty of cheating twice. He has, in consequence of a decision of the university, been excluded from the University of Leeds and sent down without a degree. He now seeks to make a judicial review application in respect of a decision of the university. I shall refer to the University of Leeds as "the university" throughout this judgment where appropriate.
3. This is a renewed application for permission to apply for judicial review. It was refused by His Honour Judge Behrens on 15th March 2012. The claimant has appeared in person before me today and has represented himself throughout.
4. The decision sought to be impugned is that of the Director of Student Education of the University of Leeds of 27th October 2011, informing the claimant that he had failed an examination and thus would be sent down from the university. The claim to judicially review that decision was made on 27th January 2012. I have had the advantage of reading all the relevant papers in this case. I have also heard from the claimant himself this morning, in submissions spanning approximately 45 minutes.
5. I regret to say that I have been subjected to a barrage of what can only be described as confused and confusing submissions. The claimant tells me he has a law degree from a university in Nigeria; I truly regret to say that I have seen no evidence of legal learning.
6. Let me turn to the circumstances of this case as I discern them to be. The claimant was a post graduate LL.M student between 2005 and 2011. The claimant sets out his academic progress, as he asserts it to be, at the University of Leeds in his statement. It need not be recited by me as it is irrelevant to the issue before me today.
7. The university, in common with all respectable academic institutions, has a strict rule about plagiarism. This is all contained in the Academic and Appeal Regulations of the University of Leeds (the regulations). Plagiarism is regarded by the university, quite rightly, as cheating. Cheating strikes a hard blow to the root of academic studies. It is wholly unacceptable and universities are perfectly entitled to take a very tough line, so it seems to me, on individuals who cheat. In many universities an individual who cheats once is removed from the university and sent down. In the University of Leeds the claimant in this case has been treated demonstrably fairly.
8. The procedure for dealing with matters of this kind is fully set out in the regulations. It is unnecessary for the purposes of this judgment to set them out. I have read them with some care.
9. I turn therefore to the factual basis of this case. On 17th March 2009 the university Committee on Applications found the allegations of plagiarism against the claimant proved. It is pertinent to note that some were denied and had to be proved, others were admitted. It may well be argued that a very lenient penalty was imposed by the university. It was adjudged on that occasion the claimant would be allowed to expunge his plagiarism and submit new work in a period of 2 years.
10. Coincidental in time the claimant commenced a complaint against the Director of Learning and Teaching within the School of Law. This was investigated by Professor Halson who was head of the School of Law. It was not upheld and in particular assertions of discrimination were dismissed. No further action in relation to that was taken by the claimant.
11. Those matters were investigated during the months of February and March 2009. Regrettably there was more plagiarism by the claimant, or to use blunt language, cheating. This was investigated by the university in 2010 and determined on 29th July 2010 against the claimant. He was informed of that decision within the 7 day time limit imposed by the regulations.
12. Very fairly the investigative committee decided not to impose an immediate sanction because there were concerns about the claimant's well-being. All of this is fully documented in the letters and emails in the bundle. As a result of the university's fairness, it was decided to seek medical information about the claimant. That information was in due course of time provided to them and the committee reconvened on 15th December 2010. The punishment imposed by the Committee was again arguably extraordinarily lenient for they said:

"Subject to submitting a pass standard test essay, the claimant would be permitted a single final opportunity to re-sit his Criminal Law Essay 2, with the submitted essay being to a pass standard."

There was no appeal against that decision. I repeat: it was arguably a very lenient punishment.

13. The operative decision in this case was the decision of 15th December 2010, for it is that date upon which the sentence was passed in respect of the second finding of cheating. The simple fact of the matter is the claimant did not pass the examination. Consequently he was excluded from the university.
14. The decision, of which he makes complaint of 27th October 2011, was simply a letter pointing out that he had failed the examination and thus the university, pursuant to the decision of 15th December 2010, was obliged to exclude him without the award of a degree. It is worth noting a letter sent to the claimant of 16th December 2011:

"Although it is unclear from your letter whether you wish to appeal the result of your Law 5750M essay, as Miss Eileen Dickinson in the Office of Academic Appeals and Regulations has previously advised, you have up to 12 weeks from the date you were informed of the decision (that is from 27th October 2011) to lodge an appeal against that essay mark. Should you wish to do so, you might find it useful to consult the Student Advice Centre in Leeds University Union on lodging an appeal."

15. There was no appeal against the academic decision to fail the claimant. Consequently the university was implementing the decision of 15th December 2010. It is important to note that there was no appeal against the decision of the 15th December 2010 either.
16. I must record that the claimant was provided with the test essay, which he passed. He was then provided with the essay question for the purposes of the real re-sit, as I have indicated. The claimant only achieved a mark of 47 when the pass mark was 50. Consequently, as I have said, he failed the examination. He knew the consequences and on 27th October 2011, as I have previously indicated, the university excluded him without the award of a degree.
17. On 18th November 2011 the claimant sought to reactivate his February 2009 complaint against the Director of Learning and Teaching. The university responded, as I have explained, saying it was not minded to do so in the letter to which I have already called attention.
18. The decision of which complaint is made is that of 27th October 2011. That was the letter which simply advised the claimant he had failed the examination and implemented the decision which flowed from the conviction on 14th July 2010 of cheating. The sentence arising from that second finding of cheating was imposed on 15th December 2010. The letter of 27^th October 2011 simply implemented the decision that was made much earlier allowing another chance to sit the examination, which the claimant then failed. He was given a second chance; and he failed the examination.
19. The claimant has made a number of assertions which I feel can be distilled as follows. He asserts the university acted in bad faith and oppressively. He says he has been victimised by the exclusion. He appears, in his application, to make a number of complaints against the Director of Learning and Teaching and he makes a complaint about certain delays. He says that these delays contravene the university's own timetable which is set out in the regulations. He asserts that the university has acted outside its power in the letter of 27th October 2011; and he accuses the university of bias. He invites the court to set aside the decision; and, indeed, asks the court to direct the University of Leeds award him with a degree. In his submissions before me today the claimant has asserted that a variety of his human rights have been breached.
20. I turn, therefore, to the law. The court has no jurisdiction to hear a claim which relates to the exercise of academic judgment. In this regard one only needs to refer to the following cases: Maloney v Anglo-European College of Chiropractors [2009] ELR 111, [2008] EWHC 2633; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; and also the case of S v Chapman [2008] EWCA Civ 800. It is clear that any student may pursue a claim for breach of contract against his university for breaches of regulations governing the conduct of examinations. But the question of academic judgment is not open to challenge by judicial review. It appears to me, in this case, the claimant is complaining about academic judgment when one tries to fathom the core of his argument.
21. In this case there are actually three decisions: (1) The first plagiarism decision and punishment of 17th March 2009; (2) The second plagiarism decision on 14th July 2010; and (3) The sentence (arising from the second plagiarism decision) imposed on 15th December 2010 for the reasons which I have given earlier (namely the desire to ascertain the medical situation of the claimant).
22. Those were academic judgments arising from decisions about cheating by the claimant. No complaints were made at the time; in the sense that there was no appeal launched against either of these cheating decisions; and any complaint against those decisions is now comprehensively out of time for this court, even if it had jurisdiction.
23. The further decision, indeed if it was a decision at all, is contained within the letter of 27th October 2011. It simply points out that the claimant failed the examination and the decision of 15^th December 2010 would be implemented. If the claimant is asserting the university at any stage has indulged in unfair treatment, either in relation to Professor Halson's decision or the later decision not to re-open the matter, he could have referred it to the Office of the Adjudicator for Higher Education under Part 2 of the Higher Education Act 2004. This replaced the old concept of the visitors to a university. In this regard one only has to refer to the case of R (on the application of Koyama) v Registrar & Secretary University of Manchester [2007] EWHC 1868 (Admin). Consequently this court will not entertain applications if there is an alternative form of remedy.
24. Consequently, pulling these various strands together, I set out now my conclusions in this case. First, the claimant failed an examination which he was permitted to take following an academic decision in a plagiarism or cheating case. He knew the consequences. Second, those decisions were academic decisions. There was no appeal against the original decisions. They are not open to challenge in this court in any event. Even if they were, the claimant is now comprehensively out of time for challenging them. Third, the decision of the 27th October 2011, of which complaint is made, is a not actually the operative decision. It was notification the university intended to implement earlier academic decisions.
25. The simple fact is the claimant was given two very lenient sentences by the university, in my judgment. On the second occasion he was given the opportunity to re-sit an examination in the way I have described. He failed that examination. If he has any complaint against the way the examination was marked he had 12 weeks from the notification in October 2011, to launch an academic appeal to the relevant body within the university. He failed to do so. Consequently, in my judgment, he cannot now complain to this court, even if these matters were open to challenge in this court. In other words, not only are they not open to judicial challenge, for they are academic decisions, but there is in any event an alternative remedy of which the claimant has not availed himself.
26. Finally, if his complaints are about injustice and discrimination in relation to the conduct of the university, he had an opportunity ages ago to make a reference to the Adjudicator for Higher Education under Part 2 of the Higher Education Act 2004. That is, indeed, the appropriate way to make that sort of complaint. There is an alternative remedy. Therefore, if his complaint (which is somewhat confused, to put it mildly) is in relation to the February and March 2009 assertions of discrimination, then that was the appropriate route, ages ago.
27. I have looked at this matter with some little care. I have approached the case with an entirely open mind. The simple fact of the matter is the claimant has had every opportunity to appeal decisions that have been made upon the way. He has chosen not to do so. The university, in my judgment, has acted with conspicuous fairness and leniency, it may be argued; for to be convicted of cheating twice and to be given an opportunity to pass an examination again is indeed a very fortunate position for any student found guilty of cheating.
28. I have viewed the procedures adopted by the university with some little care. This claimant has been treated very fairly. There is no procedural unfairness, in my judgment. The points he raises are utterly unarguable and in these circumstances I have no hesitation whatsoever in refusing this application.
29. Accordingly, the renewed application for permission is dismissed.
30. HIS HONOUR JUDGE JEREMY RICHARDSON QC: There we are Mr Echendu, I am sorry your case is utterly unarguable. Thank you.
31. I am just looking to see if there is any claim for costs against you from the university but I do not believe there is. No; the application is simply dismissed. Very good; thank you.