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Class of Degree

December 10th, 2010 by James Goudie QC

A graduate failed yesterday in his judicial review challenge to decisions by the Board of Examiners at Queen’s University, Belfast, refusing to reclassify his 2:2 degree.  The Claimant launched proceedings after missing out on a 2:1 classification in electrical engineering by half a percent.  He claimed that if he had received better supervision he would have achieved a higher degree.  Procedural flaws in the decisions were acknowledged by the University, which intends to convene a further hearing of the Board of Examiners to study the case.

However, Treacy J, in the Northern Ireland High Court, ruled that the case should remain exclusively within the jurisdiction of the University’s own appeals body.

Even if the further hearing of the Board of Examiners confirms the existing classification, two further rights of appeal are open to the Claimant, said the Judge. The Claimant can challenge the outcome to the University Central Students’ Appeals Committee and to a Board of Visitors.

A second argument on the right to education was also advanced.  The Claimant’s job prospects were said to have been jeopardised because of the degree awarded.  The University contended that a judicial review application was not the proper forum for the challenge, and that a Board of Visitors has been established to consider student appeals and complaints.  Refusing leave to apply for a judicial review, Treacy J said there was nothing in the jurisprudence to support a proposition that assessments and procedures for determining disputed degree classifications fall with ECHR Art 6 dealing with the right to a fair hearing.  The Judge also rejected arguments on the right to education, on the basis that the ECHR said nothing about rights to degrees or other academic qualifications.

James Goudie QC

Catastrophic Injury at School

December 10th, 2010 by James Goudie QC

In Brown v North Lanarkshire Council [2010] CSOH 156 the Court of Session held that a LEA was liable for injuries suffered by a 10 year old school pupil in Motherwell when another pupil’s paintbrush penetrated his eye and brain while painting at floor level, where it was clear from the evidence that no consideration had been given by teachers as to the role which the brush might play in the activity, the risk of a penetrating injury from the brush was real and foreseeable, and a reasonable person in the position of the teachers would have taken steps to prevent the foreseeable risk of harm, either by provision of different brushes, or by allowing the work to be done at a desk.

Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), applicable in England and Wales and in Scotland, requires every employer to make a “suitable and sufficient assessment of the risks to the health and safety” not only of his employees but also persons not in his employment “arising out of or in connection with the conduct by him of his undertaking”.  The Judge held that the effect of Regulation 3 could not be to create a common law duty to assess risk in the manner required by the Regulations, as the mechanism for risk assessment under statute could not define what was required at common law; but the general nature of the duty on a school teacher was to take reasonable care for the safety and health of their pupils, and to exercise care and forethought having regard to their age, inexperience, carelessness and high spirits and the nature and degree of danger, not to subject them to avoidable risks of harm, applying Beaumont v Surrey County Council (1968) 66 LGR 580, where Geoffrey Lane J, as he then was, described the standard of care for a teacher as “a high standard”.  The risk arose not from the use of the brush in itself but from the circumstances of its use.  It was these circumstances which had to be considered in assessing whether there was a foreseeable risk of injury.  The brush was a long pointed object being used t floor level with its sharpest end uppermost; the children were in close proximity to each other in an unstable position where backward and forward movement was expected.

James Goudie QC

Higher Education Funding

December 9th, 2010 by Edward Capewell

Tempers are running high both inside and outside the Palace of Westminster, as the Speaker of the House of Commons has just called the first of two divisions (votes) on the coalition government’s plans to raise tuition fees. But what are MPs actually voting on?

The first vote relates to section 24 of the Higher Education Act 2004 which provides, in short, that a governing body of a relevant higher education institution may not set fees above a specified  “higher amount”. That higher amount is currently set by regulation 4 of the Student Fees (Amounts)(England) Regulations 2004 at £3290. Regulation 5 sets a higher amount for courses of a certain length. That is currently £1640. The first vote in the Commons today is therefore in the following terms:

“That, for the purpose of section 24 of the Higher Education Act 2004, the higher amount should be increased to £9,000, and to £4,500 in the cases described in regulation 5 of the draft regulations in Command Paper Cm 7986, and that the increase should take effect from 1 September 2012.”

The second vote then is to approve the draft regulations (which you can find here) which will make these changes. These are The Higher Education (Basic Amount)(England) Regulations 2010. The vote is in these terms:

“That the draft Higher Education (Basic Amount) (England) Regulations 2010, which were laid before this House on 29 November, be approved.”

Will the ayes have it?

Wise men, angels and shepherds

December 8th, 2010 by Rachel Kamm

The Information Commissioner has produced a Good Practice Note on the taking of photographs in schools. The ICO press notice gives a seasonal example: “Having a child perform at a school play or a festive concert is a very proud moment for parents and is understandably a memory that many want to capture on camera. It is disappointing to hear that the myth that such photos are forbidden by the Data Protection Act still prevails in some schools. A common sense approach is needed – clearly, photographs simply taken for a family album are exempt from data protection laws. Armed with our guidance, parents should feel free to snap away this Christmas and stand ready to challenge any schools or councils that say ‘Bah, Humbug’ to a bit of festive fun.” The guidance states that the Data Protection Act 1998 is unlikely to apply in most situations where photographs are taken by parents in schools, although it does apply when photographs of children are taken for official use by a school or college (such as for issuing identification passes). The ICO advises that in the other small number of instances where the Data Protection Act 1998 does apply, it will usually be sufficient for the photographer to obtain permission from the parent or individual to take a photograph. The guidance is available here: http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_photos.pdf.

 This post is also available on 11KBW’s information law blog: http://www.panopticonblog.com/.

“Corrupt Gift to Education Officer”

December 6th, 2010 by James Goudie QC

On 1 December 2010 the Court of Appeal heard an appeal in R v Webster [2010] EWCA Crim 2819.  Webster (W) had been charged with corruptly giving gifts to P and to A, employees of Cambridgeshire County Council (the LEA).  P had been charged with corruptly receiving the gift to him.  W had purchased an off-the-shelf company, Education All Ltd, as a business vehicle for the supply of educational aids to schools. He was the effective owner and managing director of the company. About fifty per cent of his business came from the LEA’s ICT department. Between Autumn 2007 and December 2008 the turnover of the LEA/Education All business was  £250,000. P was a procurement officer. His role was to advise schools and colleges about technical solutions and specifications. The ICT department acted as middle man between the supplier and the school. Most of P’s invitations to quote were made through a more junior employee, A. A would receive requests from schools for advice about their needs. If a school or schools needed equipment W would be contacted by e-mail and invited to quote. If the quotation was accepted and the order confirmed W would make the supply and present an invoice. A would process some of the requests but the larger contracts were passed to P. A would follow up the contracts on behalf of ICT. The LEA’s policy on gifts was that any gift or offer of a gift should be disclosed even if it was declined. A gift of money should always be disclosed and refused. “Token” gifts such as pens or mouse mats could be accepted.  W as a Christmas gift delivered a DVD/VCR recorder and player to P.  A was in almost daily contact with W.  W made a £100 deposit into A’s PayPal account as a Christmas gift. It was declined by A and the money was returned. Shortly afterwards W made a routine visit to A at work and asked to speak to him in the car park. They went to A’s car. When A opened the driver’s door W placed an envelope containing £100 in cash in the interior door pocket and walked away. A reported the matter to his line manager and the police were informed.

W was convicted.  He appealed against his conviction.  The sole ground of appeal was that, in contravention of ECHR Article 6, he did not receive a fair trial, because the (pre-Bribery Act 2010) statute required him to “prove” that the gift was not “given … corruptly as … [an] inducement or reward”, and that he argued violated the presumption of innocence to which criminal charges are subject under Article 6.  The appeal succeeded.  The Court of Appeal held that W’s conviction under the Public Bodies Corrupt Practices Act 1889 s1(2), read together with the Prevention of Corruption Act 1916 s2, was unsafe, as s2 placed a reverse burden of proof on W and unjustifiably interfered with the presumption of innocence.  The Human Rights Act 1998 s3 permitted the Court to “read down” s2 so as to require W to discharge an evidential burden rather than the legal burden of proof.    The ultimate legal burden of proving to the criminal standard that the gift was corruptly made must rest upon the prosecution.

James Goudie QC