‘These will be some of the toughest exams of your life; statistically around half of you will fail,’ – this was the greeting we received from our ethics tutor as we sat, fresh-faced, newly enrolled BPTC students back in September 2019. What we could not have known then is just how much tougher the exams would turn out to be this year, and that we would be forced to appeal to the profession to intercede on our behalf to a regulator whose central task is to maintain public trust in the profession.
The examination structure
2019/20 was to be the final iteration of the BPTC its current form. The only three papers set and assessed by the Bar Standards Board were Civil Litigation, Criminal Litigation, and Professional Ethics. Civil and Criminal were both closed-book, multiple choice papers, and Ethics was a paper made up of six questions with longer, prosaic answers. The BSB exams were — to be frank — widely regarded within the corridors of both universities and chambers as totally unfit for purpose, and not assessing a skill (memorising vast numbers of procedural rules) which was of much, if any, practical value for a career at the Bar.
The centrally assessed exams were due to take place in April 2020. As the globe was abruptly thrust into a pandemic-induced lockdown, we were informed the exams would be deferred until the August resit period. No further details were forthcoming, but it became increasingly likely that the exams wouldn’t be able to take place in person during the August period either, and that different arrangements would have to be made.
The BSB decided that the best way forward was to go ahead with the exams online, using Pearson Vue’s online proctoring system. The theory was that each candidate would take the exams from home, on a laptop with a webcam, and be proctored to ensure they didn’t cheat. It was at this point that warning bells began to sound for many of us. It seemed, in its most basic form, to be a system which was laced with discrimination and difficulty. The concerns were raised with the BSB on 1 June, in a letter sent to them by the group which came to be known as SABER (Students Against the BSB Exam Regulations). SABER fielded 300+ results from a survey of BPTC students across the country, raising concerns over how the BSB were assuming people had access to good WiFi and quiet spaces for three hours.
By this point, it was clear to anyone who had read the BSB’s guidance that there were glaring holes in the planning, and we were mere weeks away from the exams taking place. Not least was the fact that candidates were being expected to stare at a screen for three hours, with no breaks for comfort or the toilet.
The booking process was soon in total disarray. The dates changed at short notice, examinees requiring reasonable adjustments were given 24 hour deadlines to register (with medical evidence as an essential part of the process), there were reports from students that Pearson did not reply to messages when people had issues, and many who required reasonable adjustments were either not furnished with an examination date, or were told to travel to different cities to take their exams.
With no solutions forthcoming from the BSB or Pearson, we persevered with our hours of revision, with the coming exams and the issues around sitting them looming over us like some depressing, future-defining grey cloud. Right on cue, on the first day of the exams, reports began pouring in about technology failures. Students had been frozen out of exams for over an hour (as was my case), or even being unable to sit the exams at all. There were also reports, picked up by the national press, of students being forced to urinate into bottles, buckets, and glasses, in order not to have the exams terminated. One candidate was told that she would have to remove her hijab for identification, and that she could not be guaranteed a female proctor, and so she had to defer.
My own Criminal Litigation exam was one of the most harrowing experiences of my life. During the exam — which took place during a heatwave, so hydration was essential — I realised I needed a comfort break with still two hours to go. I’d read the reports from my fellow students, and the gruesome realisation of what had to happen next dawned on me. After having spent over £16,000 for the privilege of doing this course, here I was, in my parents’ dining room, urinating into a pint-glass on camera in front of someone I’d never met, all the while maintaining eye contact so as not to be accused of cheating. The sense of indignity was staggering. I then had the small matter of having to complete the exam, with the glass on the table next to me. The BSB may well have recorded my exam as having been ‘successfully’ administered. I have never felt further from success.
The BSB refused to apologise outright for what they forced examinees to endure. Phrases like ‘we regret’ and ‘we appreciate’ abounded, with no real contrition or answers to the issues. It is telling that in the first press release, the BSB claimed ‘97% success’, in the second it was ‘most students’ completed their exams, and in the third it was ‘many students’. They were backtracking, and it now looks as if the real numbers were around one third of students who had issues with the exams. It was not until late September that statements with more semblance to an apology were issued.
The profession was up in arms, and a group of barristers organised a meeting with the regulator, after which the BSB gave them 48 hours to come up with a ‘proposal’. Those barristers worked non-stop to get a lengthy, detailed document prepared. It was not a philippic against the BSB, nor a polemical indictment of Pearson, but a thorough and solutions-based document which aimed to remove any detriment to students. The BSB took two weeks to respond, before roundly rejecting every element of it.
The BSB offered a ‘free pen and paper resit’ to UK and international students in October which would count as a first attempt, with the higher result counted as the definitive performance. Yet the BSB refused to release the results before these exams, so students had to guess at whether they’d passed or not, before re-committing to hours of arduous revision and stress.
The Bar Council sent the BSB a letter imploring them to release results before making students choose whether to resit. The BSB replied insisting on the necessity of their ‘psychometrician’ to the ‘rigour’ of the exams, and, once again, rejected this request.
For those students opting to re-sit in October, more chaos abounded with last-minute venue confirmation/changes, and some international students having resits cancelled due to local COVID restrictions.
Almost every national newspaper picked up on the story, with headlines detailing the BSB’s failings. The irony, of course, is that the BSB was assessing us on the Core Duties, one of which is not to act in a way which is likely to diminish the trust and confidence which the public places in the profession.
A spokesperson for the BSB said: ‘The BSB has apologised to those BPTC students for whom the centralised examinations proved difficult and distressing. Although the majority of students were able to complete their computer-based assessment in August, we deeply regret that technical and other problems prevented many students from doing so and left others feeling that they had been unable to give their best performance.
‘The BSB has offered all students who felt they were adversely affected the opportunity to sit the examinations as a pen and paper exercise in October without penalty. There is also an opportunity to re-sit in December. For those students who have already secured pupillage this year we have also issued a waiver which will enable them to begin their non-practising period of pupillage before receiving their exam results, as long as their pupillage provider is content for them to do so.
‘The BPTC providers usually host these exams but the BSB stepped in to provide the assessments when the COVID-19 lockdown prevented them from doing so in April. We did so with the best of intentions to prevent the entire cohort being left in limbo and to enable them to continue with their careers, but the difficulties faced by students in August should not have happened. As we have already announced, there will be a review of the handling of the August examinations, which will report to the BSB’s Governance, Risk and Audit Committee, which is composed of independent non-executive directors, and will be undertaken independently of the BSB.’
Article published on 9 November 2020.