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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Carnell, R (on the application of) v Regents Park College & Anor  EWHC 739 (Admin) (07 April 2008)
Cite as:  EWHC 739 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF RICHARD CARNELL
|- and -
|REGENTS PARK COLLEGE AND THE CONFERENCE OF COLLEGES APPEAL TRIBUNAL
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Mr Clive Lewis QC (instructed by Berrymans Lace Mawer) for the 1st Defendant
Mr Malcolm Bishop QC (instrucrted by Berrymans Lace Mawer for the 2nd Defendant
Hearing date: 11 March 2008
Crown Copyright ©
"28. However, that is not the sole test. The Panel readily accepts that "justice must not only be done, but must be seen to be done." The Panel has been somewhat concerned by the presence of the Principal during the hearing, although there has been no suggestions that his questioning was of other than as claimed above. Given the presence of an outside Chairman, and of junior members, had any questioning been (or appeared to be) in any way improper, this is a matter we consider would have been drawn to our attention (or to the attention of Mr Carnell), not least because there were junior members as part of the Committee, including the JCR President.
29. We accept, of course, that Mr Carnell (and his legal advisor) were not present throughout the hearing, but we consider the presence of an independent Chairman, and junior members, a considerable safeguard in this respect….
30. Applying that test [from Porter v Magill  2 AC 357], we do not consider that such an observer would conclude that a real possibility or real danger of bias existed."
"The Claimant submits that the Tribunal failed in giving their judgment to consider the credibility of the complainants. Further the Tribunal failed to make any or any proper reference to the individual complainants when considering the reliability of their evidence. The Claimant submits that such a blanket approach makes the Tribunal's decision unsustainable."
"….having seen him [the Claimant] give evidence, where there is a conflict between his evidence and those of the complainants, we accept the evidence of the complainants, unless there is other material which persuades us that the College has not satisfied the burden of proof that is on it to prove the cases against Mr Carnell to the appropriate level."
"7.5 The OIA expects the HEI to comply with the Formal Decision and any accompanying Recommendations in full, and in a prompt manner.
7.6 Where Recommendations require the HEI to take a particular course of action it should do so within the time scale stipulated or, where no time scale is indicated, as soon as is reasonably practicable. The HEI shall, if requested, report to the Reviewer on such compliance.
7.7 Any non-compliance by an HEI with a Recommendation will be reported to the Board and publicised in the Annual Report."
"The literature provided by the OIA….indicates that it assumes that any order made by it will be complied with by the qualifying institution (in this case Regents Park College) and that any non-compliance would very likely be the subject of adverse public comment. There was thus an effective remedy available to the Claimant which he has not chosen to use."
On 15 September 2006, the College also replied submitting that an "appeal to the OIA" should have been used.
"In a number of recent documents you have referred to the agreement of both the College and the Conference of Colleges' Appeal Tribunal to be bound by any recommendation of the OIA. It is important that we make clear that the Conference has never expressed any such intention. Of course, the Conference will consider any recommendation by the OIA, and may follow it.
We imagine that this is largely academic because these were College disciplinary proceedings. Therefore any recommendation by the OIA is likely to be to the College. Whilst we think it idle to speculate much upon circumstances involving a recommendation by the OIA to the Conference. [sic] There is one we imagine you may wish to have regard to with your client: namely a recommendation that the finding of the Conference be revoked by the Conference, as distinct from a recommendation that the College disregard the finding of the Conference.
There is no guarantee that any such recommendation would be accepted. Therefore, whatever the response of the College, the Conference finding might still stand in some form."
This was an unhelpful letter, it seems to me. However, the important point was that from 24 October 2006 at the latest, it was clear that the College itself was expressly agreeing to implement the recommendations of the OIA. Had the OIA found fault with the College and the CCAT determination and recommended a fresh determination, the reality is that the College would therefore have had to arrange for such a fresh determination. It is difficult to see how in those circumstances, the CCAT, as an adjunct of the College's procedure, would have had any standing to insist upon its own findings remaining. Had the College or the CCAT decided that they proposed to continue to rely on findings that had been arrived at in a procedure that the OIA had found to be flawed or refused to facilitate a fresh determination which had been recommended, judicial review of their decisions would have been available. Accordingly, I cannot accept the Claimant's submission that the OIA procedure was not an effective remedy on the basis that it was not binding.
"The Scheme does not cover a complaint to the extent that:
(3) the matter is or becomes the subject of court or tribunal proceedings which have not been stayed or was subject to such proceedings and those proceedings have been concluded otherwise than by being withdrawn or discontinued;"
"It may be tempting to succumb to the approach, well, the case is here now, why not deal with it rather than divert it onto another route which will bring it before another judge in the same building but much later? That would especially be so where the court's initial reaction was to feel that there was substance in the applicants' complaint. But to do so would be contrary to the principles I have earlier stated. It would, in effect, license applicants to achieve judicial review by simply arriving here and relying on the inconvenience and delay of their being redirected. It would clog the already swelling lists of properly brought cases for judicial review."