AC-2024-LON-003094 - [2025] EWHC 2161 (Admin)

GROUND ONE (PROCEDURAL FAIRNESS)

Ground one as it is now formulated by the Claimant relates to procedural fairness. The Claimant submits that contrary to the terms of §6.7 of the JCQ policy (above) Mr Gibbons was directly involved in the investigation. It is argued that he should have played no role in the MPC far less should he have (as the Claimant puts it) drafted its decision or (in his words) acted as amanuensis to the MPC.

The Claimant further submits that as part of the MPC’s role was to determine whether the investigation was fair, it could not properly perform this role due to Mr Gibbons’ involvement in the same.

The Claimant submits that the investigation was not fair. This is said to be sufficient to vitiate the MPC decision. This is not cured on appeal because the appeal panel did not itself consider the fairness of the investigation(s).

In response, the Defendant accepts that Mr Gibbons should not have played the role he did at the MPC but submits that this does not impact upon the appeal panel decision which was a curative appeal. The Defendant does not accept that the MPC or appeal panel were obliged to make a finding as to the fairness of the investigation but in any event submits that the investigation was fair. The Defendant submits that the reference to “determining if correct procedures” had been followed at §6.16 of the policy is a reference to the procedures of the subject of the investigation and not the investigator.

It is accepted that Mr Gibbons should not have played the role he did at the MPC. It is clear from the email sent by the panel member that Mr Gibbons used his own words and phrases to make the MPC (as one of the members put it) sound coherent. I do not however find that there is any basis to conclude that he made the decision himself or sought to place pressure on the MPC.

One of the matters which must be determined by the MPC is whether correct procedures were followed. I agree with the Claimant that this likely relates to the investigation into the student or centre in question. This interpretation is consistent with the associated policy and training documents that I have read. This underlines the importance of Mr Gibbons not having played any role at the MPC at which the Claimant was not present.

Does this, however, vitiate the decision of the MPC in a manner that cannot be cured by the appeal panel?

It is well established that when an appellate body considers the case afresh, hears all of the relevant evidence and redetermines the merits this will have the effect of remedying any unfairness in the earlier process: see R (Gossip) v NHS Surrey Downs CCG [2020] PTSR 1239 at §37-41 applying Calvin v Carr [1980] AC 574.

The first question therefore is whether the appeal in this case was a curative appeal. As set out above the JCQ policy states that the grounds of appeal include (i) procedural error (ii) unreasonable decision (iii) new evidence or (iv) disproportionate sanction. These are more in keeping with a tribunal exercising a review function. The same policy, however, also states that the appeal hearing will take the form of “a re-examination of the evidence, comments and reports provided to and by the awarding body, and observations presented by the appellant”. This is more in keeping with a re-hearing.

What matters is what approach the panel took in this case. Having read the appeal hearing transcript and the decision, I am satisfied that the panel conducted a re-hearing. It considered all of the evidence submitted by both parties and considered the issues in the case afresh. There is no indication that a test of unreasonableness or similar was applied. This was therefore a curative appeal. Whatever went wrong at the MPC (and there is no suggestion that there was bad faith on the part of the MPC or Mr Gibbons and I have seen no evidence of the same) was capable of being remedied by the curative appeal that came thereafter. I agree with the Defendant (and the permission decision) that the appeal panel decision is therefore the only valid target of challenge. I have considered all of the evidence which has been served since the permission decision and considered the Claimant’s submissions in this regard but nothing in that material changes the position.

The Claimant submits that what went before is not cured by the appeal because the appeal panel gave no consideration to whether the Pearson investigation was fair and conducted in accordance with JCQ malpractice policy. The Claimant is correct that there is no statement to this effect within the appeal panel’s decision. The unfairness relied upon by the Claimant relates to the following features of the case:

I have dealt with complaints relating to the student investigations above.

I do not think that there is anything in the delay point. I accept that the investigation could have progressed more swiftly but this is a common complaint in investigations of this kind. No forensic prejudice has been identified. It was never argued that there was delay such as to render the proceedings an abuse of process or similar.

The reference to non-subject matter experts is to the Pearson investigators who conducted the interviews. The point is taken that none of these individuals were qualified in business studies and so were not well placed to investigate the students. The Claimant contrasts this with the external examiners appointed by Pearson who did not identify the problems which were revealed by the investigation (see below). I do not consider that the problems which were discovered required any subject matter expertise. The students failed to explain basic concepts within their own work and about the subject they were studying. This would be evident to a trained investigator.

It is correct that short periods of time were imposed by Pearson for SSS to respond to the various stages of the investigation. It would however have been open to SSS to have requested an extension. There is no reason to think that this would have been refused by Pearson. Nothing in the correspondence leading up to the MPC or appeal panel suggests that SSS was shut out from serving further evidence or submissions.

It has been a long standing complaint raised by those representing SSS and Mr Bhatti that the case against them was not clearly articulated. In my judgement the Defendant’s case was made sufficiently clear by virtue of the 28 February 2023 letter and the case summary. These documents stated that the central concern was that SSS had recruited students who were not suitable for their course and that those students had submitted work that was not their own. The case SSS had to meet therefore was whether there had been serious malpractice by SSS by virtue of a failure to recruit with integrity and a failure to detect and prevent plagiarism. Pearsons’s case was that SSS was at fault by having recruited significant numbers of such students and having failed to detect the plagiarism that these students had resorted to in order to remain on and complete their courses. This was sufficient for the Claimant to respond to. Having read the grounds of appeal and hearing transcript I do not consider that counsel for SSS was restricted in how he responded to the allegations by any lack of specificity.

I do not therefore consider that either the investigation or the appeal panel procedure was unfair. To the extent that there was a technical failure by the appeal panel to record that correct procedures had been followed, I do not consider that this could possibly have altered the outcome.