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BVC student wins three-year High Court fight over exam results

27 August 2009

A law student has won an extraordinary three-year legal battle with Cardiff University to prove she should have passed her BVC exams.

Alice Clarke, who has since been called to the Bar, failed her negotiation and advanced criminal law exams in 2005. In both cases, she challenged the results through judicial review.

In R (on the application of Clarke) v Cardiff University [2009] EWHC 2148 (Admin), the court heard that in March 2005, following an opinion writing assessment, members of staff at the university become concerned that some or all of the students had obtained information about the content of the exam in advance.

“They concluded that all students should be asked to produce the textbooks that they had been permitted to take into the opinion writing assessment,” Mr Justice Wyn Williams said.

“The purpose of making such a request was that it would reveal any annotation of the textbooks which, in turn, might reveal if a student had advanced knowledge of the topic of the assessment.”

Two days later Clarke set off early to drive from Swansea to Cardiff for her negotiation assessment. She left too early to receive a letter asking her to bring in the textbooks and failed to pick up a mobile phone message.

Clarke claimed that “shortly before her assessment began” she was questioned by Andrew Jerram, the course leader, and staff member Hannah Walsh, as to why she did not have the textbooks, which she found an “upsetting episode”.

She made an extenuating circumstances application, claiming she had prepared very well for the exam but was “subjected to undue stress”, only a few minutes before it started, which left her “upset and disturbed” and damaged her performance.

In June 2005, Clarke was told she had failed the negotiation assessment. She responded by making an “adversely affected assessment circumstances” application. Both her applications were rejected by the university’s extenuating circumstances committee.

Clarke made an application to the university for verification of her results, which was rejected by an examination board in September. The board also confirmed that she had failed her advanced criminal law assessment.

She issued proceedings at the High Court in July 2006, seeking orders to quash the university’s decisions regarding her negotiation assessment and a declaration that the basis on which the advanced criminal law exam had been marked was unlawful.

In April 2008, Mr Justice Collins ordered that her advanced criminal law assessment be remarked by an independent examiner, nominated by the Bar Council. The new mark, of 71 per cent, was later moderated by the university to 51 per cent, enough to pass the exam.

In January 2009, the university’s awards and progress committee resolved that Clarke’s overall result for the BVC course should be amended to “competent”.

As a result the claimant dropped her claims relating to the criminal law exam.

Mr Justice Wyn Williams said that, as far as the negotiation assessment was concerned, “the claimant would have to disclose, if asked, that she failed negotiation first time around and was required to retake that assessment.

“If, however, her application for extenuating circumstances was successful, if reconsidered, it is at least possible that the defendant would treat her retaken assessment as her first attempt.”

Wyn Williams J said he had no doubt that the views of Clarke’s course leader and colleague were “very influential” in the decision taken by the extenuating circumstances committee in June 2005.

“In those circumstances it does not seem to me to have been fair that they should have participated in reaching the actual decision.”

The judge said that Clarke was also treated unfairly by the examination board in September 2005.

“Mr Jerram and Ms Walsh were present throughout and it is to be inferred, reasonably in my judgment, that they repeated their version of the facts.”

Mr Justice Wyn Williams quashed the extenuating circumstances committee’s decision and proposed that the exam board’s decision should also be quashed to the extent that it related to extenuating circumstances.

A spokeswoman for Cardiff University said: “While the university will consider the judgment in some detail, it is important to note that the court has said that only one decision of the university, in relation to the negotiation assessment, must be considered afresh. All other claims were dismissed.

“Subject to any appeal which the university may submit, the university will reconvene the relevant board to reconsider the matter and will look carefully at the membership of that board in light of the judgment.”

The spokeswoman added that Clarke had been ordered to contribute to the costs of the action.

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