Ravindu Sahan Thilakawardhana v The Office of the Independent Adjudicator The University of Leicester (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Hh Judge Jarman |
| Judgment Date | 13 November 2015 |
| Neutral Citation | [2015] EWHC 3285 (Admin) |
| Docket Number | Case No: CO/3171/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2015 |
[2015] EWHC 3285 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street Cardiff
His Honour Judge Milwyn Jarman QC
Case No: CO/3171/2015
Mr Clive Newton QC (instructed by Sinclairs Law) for the claimant
Ms Aileen McColgan (instructed by E J Winter & Son) for the defendant
Ms Claire Darwin (instructed by Watson Burton LLP) for the interested party
Hearing dates: 9 November 2015
Hh Judge Jarman QC:
In October 2013 the claimant having completed three years of course leading to a degree in medicine at the University of Leicester (the university), commenced a gap Bsc degree there. That month a friend and fellow student (referred to in the papers and in this judgment as PS) distributed some explicit photographs of a friend of the claimant which he, PS, had been sent by mistake. That led the claimant to post on the Facebook page of PS an image of a well known actor in a popular film with the words in capital letters "I will look for you, I will find you. And I will kill you." This sort of posting, known as a meme, was viewable by the Facebook friends of PS. At the same time the claimant wrote a private message to PS on Facebook containing about 170 words some of which were offensive and when taken in conjunction with the meme, could be construed as threatening. About a month later PS complained to university staff and to the police but choose not to pursue criminal proceedings. However, the university instigated disciplinary proceedings and the claimant was given a reprimand, the least serious of the possible penalties. The claimant's conduct also gave rise to the distinct question of whether, as a medical student, he was fit to practise medicine. In April 2014 a panel of the university (the panel) decided he was not so fit to practise and that decision was upheld by an appeal panel of the university (the appeal panel) in July 2014. The claimant made a complaint to the defendant, which as its name suggests is independent of the university, about the termination of his registration as a medical student, but in May 2015 the defendant decided that the complaint was not justified. The claimant now seeks judicial review of that decision.
The claim was made on eight grounds of challenge and permission to pursue all grounds was given by His Honour Judge Bidder QC. On the morning of the hearing I allowed an application to add a ninth ground, which alleges in summary that the defendant unlawfully failed to conclude that the appeal panel had in turn unlawfully failed to make findings or evaluate the factual context of the claimant's conduct or to explain its approach to that context. The main issues arising from the grounds are based on irrationality and failure to give adequate reasons and may be summarised, to paraphrase the skeleton argument of Mr Newton QC on behalf of the claimant, as follows:
i) Did the appeal panel take into account the claimant's evidence relating to the nature and context of his conduct and if not was it irrational for the appeal panel not to make findings and not to give adequate reasons;
ii) Did the appeal panel take into account all relevant mitigating circumstances and consider other sanction options and if not was that irrational or was there a failure to give reasons;
iii) As a result of the consideration of the above matters was it irrational for the defendant to have concluded that the claimant's complaint in respect of the appeal panel decision was not justified.
When considering the facts of this claim, which I shall now set out in greater detail, it is important to bear in mind certain principles which govern the extent to which the court should interfere with decisions entrusted by Parliament to other bodies. Mr Newton accepts that the test to be applied is whether the decision of the defendant is one which no reasonable decision maker possessed of expertise reasonably to be expected of the defendant would have made. It must be borne in mind that the defendant's decision makers are in general not legally qualified. Second, Mr Newton accepts that a panel determining fitness to practise must have margin of appreciation in respect of the public interest and that court will not normally interfere with evaluation of evidence and will not substitute its own judgment for that of the decision maker. However the court will consider whether the latter has taken into account all the relevant evidence or has explained any omissions. Third, as Mr Newton accepts, the focus of challenge in this claim is the decision of the defendant and not of the panel or the appeal panel, but he points out that as that involves criticism of how the defendant approached the decision of the appeal panel, the latter also needs analysis.
In order to understand the reaction to the private message which the claimant sent to PS, I set out below some of the more disturbing extracts from it, including the first and last lines:
"you fucked up! you cock sucker, after hanging out with us lankans for the past few years, you have the balls to tell [A] not to hang out with us……When you mess with a lankan, you mess with all of us……i hope you learn a lesson from this, when you are so insincere to the people around you, your little fairy tale world will collapse eventually, i'll make sure it will. [R] has seen right through your shit for years and he knew what kind person you are, so dont even look at him. i dont want to see you on a night out in leicester, or in the UK."
The director of administration of the university's medical school was asked to make a preliminary investigation into the complaint by PS, and arranged a meeting with the claimant on 18 November 2013. Immediately following the meeting, the claimant sent an email to the director, the first paragraph of which said:
"This letter is to formally address the complaint made against myself by [PS]. I would like to reassure you that I did not intend to make any kind of threat of death or injury towards him, and have never had any intention of harming him. There was an isolated incident of conflict, and since it occurred there has been no ongoing communication between the two of us. I am a committed medical student, and I have a good ethical sense and awareness of the conduct expected of a medical student. My emotions got the best of me in the heat of the moment because of legitimate grievances at [PS]'s behaviour in the period up to the incident. The "threat" which you are referring to is an internet meme in circulation which humorously refers to a line used by an actor in a popular thriller movie. I posted it on his facebook wall, and it was taken down within minutes. As such it was meant to convey humour as well, but I appreciate that it could have been perceived seriously, but such was my upset at that moment that I did not consider this. In addition to this I sent [PS] a message outlining why I was so upset at him. I said "I don't want to see you on a night out, or in the UK." I understand now that in the context of the meme that was sent, that could be perceived as a further threat."
Shortly afterwards, a member of staff of the university was appointed as investigating officer in the disciplinary proceedings, who met with the claimant in December 2013 when the procedure for the investigation was explained. In the course of those proceedings, on 15 January 2014 the claimant sent an email to the investigating officer. There are a number of points set out in that letter, which on behalf of the claimant it is submitted that the appeal panel did not take into account. The claimant, although accepting that the meme and message could be construed as threatening, said that he meant to ridicule PS so that mutual friends would know that their relationship was over. He then realised that he had overreacted and after an hour he attempted to remove the image but PS had already taken a screenshot of it and removed it himself. He said that he was ready to apologise to PS if he confirmed that he felt threatened, but added that he had known PS for three years and they were close friends, and that PS knew that the claimant was not a character who would do him any harm. The claimant referred to the fact that PS waited a month to report the incident to the medical school, and said that he believed PS took time to plan carefully revenge by targeting the claimant's future medical career. Furthermore, the claimant and his friends decided to keep PS out of their circle because of anti social behaviour and PS was obviously frustrated by this isolation. The claimant added that he posted the meme and sent the message because, first PS tried to break up his friend and his girlfriend and, second (which the claimant said angered him "a great deal") PS sent the explicit photographs to a friend after promising that he had deleted them.
On 22 January 2014 the investigating officer wrote to the claimant having concluded her investigation saying that there was evidence of misconduct which could not be ignored and that a penalty of a reprimand was imposed. She continued:
"The reason for this decision being reached is that the action of posting a public 'message' on a social media site that could be construed as threatening cannot be ignored. This was a serious act of misconduct and regardless of your subsequent remorse and recognition that your behaviour was improper an appropriate penalty is being imposed.
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R Sarah Zahid v The University of Manchester The Office of the Independent Adjudicator for Higher Education (Interested Party)
...EWHC 162 (Admin), R (Crawford) v University of Newcastle upon Tyne (No 2) [2014] EWHC 1197 (Admin), R (Thilakawardhana) v OIA [2015] EWHC 3285 (Admin) and R (Gopikrishna) v OIA [2015] EWHC 1224 (Admin). Of particular importance and value are relevant principles set out by Mummery LJ in M......