Edinburgh postgrad excluded from study has decision of Student Appeal Committee rejecting exclusion appeal quashed

About this case:

• Citation:
  [2023] CSOH 44
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

Chase Shaffar-Roggeveen, who enrolled to study towards a PhD in archaeology in 2019, argued that the Committee had acted unlawfully in taking the view that he had not provided sufficient grounds to appeal an exclusion decision. He averred that relevant factors had not been considered by the Committee, including supervisor bias and the fact that he had not been provided with information necessary to argue his case.

The petition was considered by Lord Lake, with J Barne KC appearing for the petitioner and N McLean, solicitor advocate, for the respondent.

Not given information

The outcome of the petitioner’s first annual progression review in 2020 was that he would be required to undertake a repeat review. He was provided with feedback from his supervisors, although he expressed the view that some of what he was being asked for was “silly and a waste of time”. The repeat review was conducted in October 2020, the outcome of which was a recommendation that the petitioner be excluded from study.

As was his right under the respondent’s conditions of study, the petitioner had an interview with the Dean of Postgraduate Education, Professor Bowd, who also concluded that he should be excluded after receiving comments regarding the insufficiency of his methodology from his supervisors. An appeal was sought, in which the petitioner argued that his supervisors were prejudiced against him, that inadequate consideration had been given to the fact that they were his examiners for review purposes, and that parts of the respondent’s code of practice had not been observed.

By letter of 1 December 2021, the Student Appeal Committee informed the petitioner that he had not set out sufficient grounds for his appeal to be considered. The petitioner contended that the Appeal Committee did not consider arguments presented to it to the effect that the original decision taken had been unfair because the petitioner was not given information he required in order to argue that he should not be excluded, concerning doubts about his research capability and the viability of his proposed thesis.

The respondent contended that, irrespective of whether he was entitled to reduction, there was no real possibility that the decision of the Committee would be different absent the defects contended for by the petitioner. Matters of academic judgement were non-justiciable, and it was notable that the petitioner did not seek the reduction of the Dean’s original decision to exclude him.

Crux of the reason

In his decision, Lord Lake said of the petitioner’s first appeal ground: “The petitioner was entitled to seek an interview to ‘make his case’ for why he should not be excluded. It is apparent that what is meant is that this was his chance to put forward his argument in response to the view that he should be excluded. This was his only opportunity in the process to do that. This meant that if the respondent had a ‘case’ for the basis on which exclusion was ultimately recommended, the gist of it should have been effectively communicated to the petitioner prior to that interview. That was not done.”

He continued: “While it is true that the petitioner received feedback and that a dialogue is not required, he was not told of doubts about his research ability or as to the viability of his thesis and it was these matters which were the crux of the reason that he was excluded. It was a question of informing him of the matter that was the core of the decision that would be taken in relation to him and not a matter of protracted dialogue. That the petitioner was not told of this was a matter that ought to have been considered by the Appeal Committee.”

Turning to whether the decision ought to be reduced, Lord Lake observed: “It is correct that the petitioner does not seek to reduce Professor Bowd’s decision. It is not correct, however, that the petitioner seeks to rely on failures in that decision in the petition. The grounds of challenge ultimately turn on the failure of the Appeal Committee to consider arguments that had been put forward as to why Professor Bowd’s decision was flawed and, as such, failed to take into account a material consideration.”

He concluded: “The issue here is concerned solely with the second decision. It is not suggested it is flawed simply because of the earlier decision. The flaws arise from failures in the process of taking the later decision. There is therefore no requirement to challenge Professor Bowd’s decision. The effect of reduction of the decision of the Appeals Sub Committee is that they must consider afresh whether to allow the appeal against Professor Bowd’s decision.”

The petitioner’s motion was therefore granted and the decision of the Committee reduced.