R Hazim Mustafa v The Office of the Independent Adjudicator for Higher Education Queen Mary, University of London (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males |
| Judgment Date | 23 May 2013 |
| Neutral Citation | [2013] EWHC 1379 (Admin) |
| Docket Number | Case No: CO/13044/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2013 |
and
[2013] EWHC 1379 (Admin)
The Honourable Mr Justice Males
Case No: CO/13044/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Lawson and Mr Leon Glenister (instructed by Fisher Meredith LLP) for the Claimant
Ms Aileen McColgan (instructed by E J Winter & Son LLP) for the Defendant
Introduction
The Harvard academic and songwriter Tom Lehrer recommended plagiarism as the route to academic success, wealth and fame, but his tongue was firmly in his cheek. For universities and other educational bodies plagiarism is no laughing matter, especially with the vast scope for such activity presented by the internet. Nor is it for those students who are accused of having committed plagiarism, perhaps wrongly, and who may wish to appeal against any such finding. The question raised by this case is whether a university's decision that a student has committed plagiarism is final or whether it can form the subject of a complaint to the Office of the Independent Adjudicator for Higher Education ("the OIA").
During the academic year 2007–8 Mr Hazim Mustafa was a student at Queen Mary University of London studying for a Master's degree in project management. One element of the course required him to submit an essay on the risk management of a large technology based project. Mr Mustafa submitted an essay entitled "Identification of risks for Dubai Metro", but this essay was awarded no marks on the grounds that parts of it were plagiarised. Aggrieved by that decision, Mr Mustafa appealed unsuccessfully to an examination offence panel of the university. He appealed further, again without success, and eventually made a complaint to the OIA. The OIA rejected the complaint on the ground that the existence (and if so, the extent) of plagiarism was a matter of academic judgment, with the consequence that the university's finding of plagiarism could not form the subject of a complaint to the OIA.
This claim for judicial review, brought with the permission of Sir Stephen Sedley, challenges the decision of the OIA to reject the complaint on this ground. The issue on which permission was given was "whether the determination of plagiarism is necessarily a matter of judgment and so always outside the OIA's jurisdiction". However, in addition to that issue of general principle the question also arises whether, even if there may be cases where a determination of plagiarism need not involve an academic judgment, this is or may be such a case.
Mr Mustafa had other complaints about his treatment by the university, but those complaints were rejected by the university authorities and by the OIA. Permission to challenge the OIA's decision relating to those other matters was refused.
The legislation
The OIA is designated pursuant to section 13 of the Higher Education Act 2004 as the operator of a scheme for the determination of "qualifying complaints" against universities and colleges including Queen Mary. "Qualifying complaints" are defined by section 12, which provides as follows:
" Qualifying complaints
(1) In this Part 'qualifying complaint' means, subject to subsection (2), a complaint about an act or omission of a qualifying institution, which is made by a person —
(a) as a student or former student at that institution, or
(b) as a student or former student at another institution (whether or not a qualifying institution) undertaking a course of study, or programme of research, leading to the grant of one of the qualifying institution's awards.
(2) A complaint which falls within subsection (1) is not a qualifying complaint to the extent that it relates to matters of academic judgment."
The rules of the scheme established by the OIA provide that:
"3. The Scheme does not cover a complaint to the extent that: …
3.2 it relates to a matter of academic judgment."
Accordingly the OIA cannot consider a complaint to the extent that it relates to matters of academic judgment. The critical question, therefore, is whether Dr Mustafa's complaint to the OIA that the university had wrongly found him guilty of plagiarism related to a matter of academic judgment. That would necessarily be so if a determination that plagiarism has been committed is always a matter of academic judgment, but it would also be so if on the facts of this case the university was making an academic judgment.
Background
Mr Mustafa's course required him to submit one piece of coursework and to sit seven exams at the end of the course. The coursework, worth 30% of the total marks, was meant to be undertaken in groups but unfortunately Mr Mustafa was unable to find a group to join and therefore had no alternative to working on his own. He was, however, allowed extra time to complete the work. Even so, he was unable to submit a finished essay by the deadline of 9 April 2008 and handed in what he accepts was an incomplete piece of work about the oil industry in Vietnam. A week later, he went to see the course lecturer, Dr Keith Arundale, who told him that the essay was not referenced and that it failed to address the tasks set.
Mr Mustafa's exams began on 1 May 2008. At a meeting on 8 May with Dr Ray Smith (the head of the faculty) and Dr Stuart Peters (his supervisor) Mr Mustafa was told that the essay which he had submitted would be treated as a draft and that he would be allowed until 16 May 2008 to submit a final version. Mr Mustafa decided, however, to write about the Dubai metro system instead of the Vietnam oil industry. That meant he had to start all over again and complete the work within eight days, but that was his choice. He submitted the final version on that day.
This work had to be done during the period when Mr Mustafa was also sitting exams. He failed those exams, he says because the work required to be done to complete his coursework did not allow time for proper revision and because he was exhausted, stressed and depressed at the limited time he had been given to submit the final version of his essay.
On 29 June 2008 Mr Mustafa received an e-mail from Dr Smith, stating that he had failed six of his exams and that his coursework was being reviewed for suspected plagiarism. On 10 July 2008 he was told by the assistant academic registrar that:
"The specific allegation is that 32% of your essay matches with a website on railway technology and that other sections of your essay match other websites without appropriate referencing."
At a meeting on 18 July 2008 it was explained to Mr Mustafa that his essay included extensive quotation without the use of quotation marks. Mr Mustafa's response was that although he had not used quotation marks, he had made it sufficiently clear by the use of square brackets referring to sources at the end of paragraphs that he was indeed quoting from them. He referred to coursework by other students which, he said, had contained a similar amount of quotation, but which had not attracted an allegation of plagiarism.
In September 2008 Mr Mustafa resat the exams which he had failed, but he failed them again. He says that this was because they were very close together, and he was stressed and depressed.
An examination offence hearing took place on 27 January 2009. The panel asked whether extensive but nevertheless referenced quotation constituted plagiarism. Reference was made to the university's Academic Regulations for the year 2007–8, referred to below.
The examination offence panel upheld the decision that Mr Mustafa had committed plagiarism. The minutes of the hearing include the following passage:
"The Panel noted that the essay read as a continuous piece of narrative and without the proper use of quotations it was not possible or very difficult to determine which text was taken from an external source and which was Mr Mustafa's own work. This was especially misleading as it was now evident that the text had been quoted verbatim.
Mr Mustafa agreed with this point however he stated in response that as this section of the essay was the introduction concerning the background of the client and contained no statistical data he did not need to reference it in the same manner as the main body. …"
The panel's decision was recorded as follows:
"The panel were content that Mr Mustafa had been provided with sufficient guidance in regards to the plagiarism offence and that he had not made effective use of the guidelines available to him. When reading the dissertation it was not possible to determine quotes from sources. The Panel summarised that it was standard academic practice to ensure that any text included in a piece of work that was not your own should be clearly put into quotations [sic] marks.
Upon consideration of the evidence presented to it and the representations of the Assistant Academic Registrar and Mr Mustafa, the Panel agreed that the allegation of plagiarism on the part of Mr Mustafa was proven and that an examination offence had been committed."
It is Mr Mustafa's case that these minutes, produced some time after the hearing, do not accurately or at any rate fully reflect what happened before the panel. They do not refer to the discussion about whether extensive but referenced quotations constituted plagiarism. I see no reason to doubt that such a discussion occurred. Equally, however, I see no reason to doubt that the minutes accurately record...
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