Rehab Abdel-rahman For Jidicial Review Of Decisions Of The University Of Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2013] CSOH 201 |
| Docket Number | P833/11 |
| Date | 27 December 2013 |
| Court | Court of Session |
| Published date | 27 December 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 201 | |
| P833/11 | OPINION OF LORD JONES in the cause REHAB ABDEL-RAHMAN Petitioner; for Judicial Review of decisions of the University of Edinburgh ________________ |
Petitioner: Party
Respondent: O'Brien QC, Poole QC; Lindsays
27 December 2013
Introduction
[1] The petitioner in this case represents herself. She seeks judicial review of certain decisions which the respondent, the University of Edinburgh ("the university"), took whilst she was studying as a post-graduate student there. She avers that the effect of those decisions was to suspend her from attendance at the university's Public Health Department and to exclude her from re-matriculation, so preventing her from continuing her studies for a PhD in public health. She complains of breaches by the university of: its own regulations; the Human Right Act 1998 ("the HRA"); the Race Relations Act 1976; Council Directive 2000/43/EC and various provisions of the European Convention on Human Rights.
[2] The decisions complained of are those communicated to the petitioner in the university's letters, emails and forms, dated 13 May 2009, 25 June 2009, 1 July 2009, 11 September 2009, 7 October 2009, 10 and 22 December 2009, 20 January 2010, 2 February 2010, 3 and 26 May 2010, 6 June 2011 and 4 November 2011. She also challenges a decision, purportedly taken by the principal of the university on 24 June 2009, to delegate certain powers to the university secretary. Amongst the numerous grounds of opposition tabled by the university in its answers to the petition are that the petitioner is barred by mora, taciturnity and acquiescence (to which, for convenience, I shall refer as "the mora plea" or a variant thereof) from seeking review of the decisions complained of, and that any claim competent to the petitioner in respect of alleged breaches of her convention rights has been terminated by passage of time in terms of section 7(5) of the HRA.
[3] The matter came before me for a hearing on both of these matters on 1 July 2013 and two succeeding days. Miss O'Brien QC, who appeared for the university, explained that, for the purposes of her arguments, she would take the petitioner's factual averments as if established, without prejudice to her right to dispute their accuracy if the action were to proceed further. She explained, also, that the university has challenges to the competency of certain elements of the petitioner's application for judicial review which she wished to reserve.
The factual background
[4] Counsel laid out the foundation for her mora and HRA submissions by referring to a chronology, which is number 7/290 of process, and to a series of documents. Whilst it was helpful to have the broad understanding of the circumstances of the case which the chronology and documents facilitated, it is unnecessary for me to refer to them all for the purposes of this opinion, and I shall restrict my narrative to those events which, in my view, have a bearing on the pleas under consideration.
[5] On 3 August 2005, the petitioner accepted an unconditional offer from the university's College of Medicine and Veterinary Medicine of a place to study for a PhD in genetic epidemiology, over a period of 36 months. (Number 7/292 of process) In accordance with the terms of the offer, she began work on 15 September 2005, and she matriculated on 4 October 2005. (Number 7/51 of process)
[6] Miss O'Brien referred me to one of the petitioner's productions, number 6/52 of process, explaining that it is accepted by the university that the petitioner was considered to be a good and able student whose work was progressing satisfactorily. That production, dated September and October 2008, is an annual report on the petitioner in which her progress is described as "Very Good/Good". In October 2008, however, the petitioner went absent on sick leave. (University's chronology) By email, dated 15 October 2008, the petitioner complained to the university authorities of "severe persecution" and "harassment". (Number 7/56 of process) By further email, dated 28 October 2008, she wrote to one of her two PhD supervisors, complaining about the other PhD supervisor and informing the addressee that, on medical advice, she was unable to come in to the department "at least currently and in the near future". (Number 7/286 of process)
[7] On or about 18 December 2008, the petitioner made what she described as "a formal complaint" to the university about the behaviour of a number of named individuals. (Number 7/64 of process) According to the university's chronology, senior representatives of the university had a meeting with the petitioner on 4 February 2009. On 20 February 2009, the petitioner wrote to one of the persons whom she had met to say that there were "two outstanding issues" in her complaint. (Number 7/69 of process, appendix A) The first was about the removal of supervisors about whom she had complained, and the second concerned her request that her studies be suspended from March 2008 until February 2009 so that she might complete them within the 36 month period specified in the university's offer of 3 August 2005. In March 2009, the university issued a document which is described in the chronology as "Determination of Complaint (Stage 1)" and which contained, among other things, a section headed "Summary of findings" and another entitled "Recommendations". (Number 7/69 of process) It is not necessary to narrate these for the purposes of this opinion, other than to say that one of the recommendations was to the effect that retrospective suspension of the petitioner's studies should be sought, from March 2008 to February 2009. The recommendation was implemented shortly thereafter, and the suspension granted.
[8] Following the issuing of the determination, the petitioner continued to correspond with the university authorities. It is clear from that correspondence that, so far as the petitioner was concerned, certain matters which were the subject of her complaint were not resolved. On 12 May 2009, the petitioner emailed the university, informing it that she had visited her GP, had been given a six months' supply of medication, and did not expect to resume her studies for three to six months. (Number 7/90 of process) On the same day, in response to an email dated 9 May from the petitioner, her head of college wrote to her in the following terms:
"Thank you very much for letting me know that you have visited your GP and that ill-health currently prevents you from pursuing your PhD studies. Rest assured that your period of study can be suspended until such time as you feel well enough to return to your work.
...
I will inform the Head of School (Professor Weller) and Professor Campbell that you are currently on sick leave. I would be grateful if you could keep the School informed as to when you might be well enough to return to your studies." (Number 7/89 of process)
On 15 May 2009 her head of college wrote again to the petitioner, saying this:
"I am writing to express grave concern about your health and wellbeing. I would be very grateful if you could share this confidential letter with your GP. Your doctor needs to know that you have been on hunger strike all this week and that you have been making public demonstrations.
I am also very worried that you believe that I have been sending electricians to your home, which is not true.
For the moment, your complaints process is suspended, in the same way as your PhD studies, until your health improves." (Number 7/96 of process)
The petitioner emailed her head of college on 18 May, in these terms:
"I think you are investigating my problems. I think you have contacted my husband. I think the medical team who came to my home today were sent by you or by some means related to you. You cannot use this email by any means in my complaint as I refuse for this to be included by any means in my complaint. But I think I need help and I am going to accept their help even though confident you are behind all of this.
In spite of this email and my recent thoughts, I will continue in my protest campaign till you fairly conclude my complaint. Please do this very soon." (Number 7/288 of process)
(It should be appreciated that English is not the petitioner's first language. All of the quotations from her correspondence are accurate.)
[9] I have set out some, but by no means all, of the events leading up to the date of the first of the university's decisions which the petitioner seeks to reduce in these proceedings, in order to communicate a flavour of the escalation of the dispute between her and the university. On 24 June 2009, according to the university's averments, the principal of the university formally authorised the university secretary in writing to act as his deputy in dealing with the petitioner's case. On 25 June, the university secretary wrote to the petitioner in the following terms:
"Acting on behalf of the Principal of the University I am writing to formally notify you that, with immediate effect, you are suspended from your studies at the University, in accordance with Section 5.1.7 of the University's Code of Student Discipline.
The Head of College has repeatedly expressed concerns about your health status, which impacts on you and many colleagues who work alongside you in the University. There is growing concern that your distress and anxiety are now making it very difficult for other colleagues to work normally. In addition you have been sending emails to members of the University staff making serious unfounded allegations about specific members of the academic staff with whom you work.
In the circumstances, acting as the Principal's deputy for this purpose, I have decided that your right of access to University facilities should be suspended until such time you (sic) can provide medical evidence that you are able to resume your studies without disrupting the work of others.
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