As A-level students either celebrate having their grades restored or worry about finding places at their preferred universities, spare a thought for graduate students who escaped these problems but are now trying to become barristers. Failures by the authorities to cope with the coronavirus constraints have left these students anxious, frustrated and humiliated.
The story has been well documented by the student-oriented website Legal Cheek but deserves wider attention. Like the A-level fiasco, it has been on the cards since March.
That was when the Bar Standards Board — effectively the regulator for barristers in England and Wales — postponed the centralised Bar Professional Training Course (BPTC) assessments from April until this month. These are the examinations in civil litigation, criminal litigation and professional ethics that are set and marked centrally, rather than by law schools.
Before coronavirus, students took the BPTC exams at the colleges where they studied. When colleges were closed, they argued that they should be allowed to sit their exams at home. In May, the Bar Standards Board agreed. It signed a contract with a company called Pearson VUE
to deliver the August assessments via OnVUE, its online proctoring solution. OnVUE uses a combination of artificial intelligence and live monitoring to ensure the exam is robustly guarded, deploying sophisticated security features such as face-matching technology, ID verification, session monitoring, browser lockdown and recordings.
VUE stood for Virtual University Enterprises when it was launched in 1994. Pearson advertises its services with images of students who appear to be happy and relaxed:
The reality is utterly different. Last week, students claimed they were forced to urinate in bottles or buckets because they feared their examinations would be terminated if they failed to maintain eye-contact with their laptops during examinations that lasted for some three hours (including check-in time).
In response, the Bar Standards Board pointed to a 27-page guidance document it had issued to students in advance. This explained that it would be possible for them to take the exams at physical centres around the world. Candidates who preferred to take the tests at home would have to adapt their surroundings to meet exam conditions. To take one example, mobile phones would need to be switched on but kept out of reach in case a proctor needed to call the candidate.
And then there was this instruction:
Prepare yourself for not being able to leave the room for the duration of your exam for example by going to the toilet as close to the start of the exam as possible.
In court, barristers and judges regularly manage three hours without a loo-break. But students are likely to be nervous. On the other hand, invigilation would become impossible if students could visit unsupervised areas of their homes during exams. The Bar Standards Board said on 13 August that students who thought they would need to leave the room could have sat the exam at a test centre, where breaks would have been permitted.
Amanda Pinto QC chairs the Bar Council, the barristers’ representative body. She wanted to know why students had not been allowed breaks. And there was more:
The Bar Council also cannot understand why students in test centres are not permitted water on their desks, especially bearing in mind the hot weather.
Separately, we find it difficult to understand why students who suffer technical difficulties during their exam have had to defer their exams until December, rather than a date later in the week. This enforced deferral will mean that many will not know whether they have passed their exams before they start pupillage, inevitably adding to their stress.
The regulator issued a detailed response on 14 August. “The integrity of the exam is extremely important,” said the Bar Standards Board, and students had been told what to expect. The board added:
We regret that the exceptional demand for test centre places from other bodies also conducting examinations meant that not every student was able to find a test centre place at a time and in a location that was convenient to them but many students are successfully sitting their exams in test centres…
Our test delivery partner, Pearson VUE, has assured us that at this stage their statistics suggest that 89% of our exams have been delivered without any reported incident and 97% of exams have been successfully completed in all…
For candidates who sat a Bar Standards Board exam through Pearson VUE in August and experienced a technical failure that prevented them from accessing or completing their exam, we are looking at options as to how we might enable them to sit for their exams before December…
In an interview with the website Legal Futures, its director general said he was was “very sympathetic” with students but stood by the the board’s approach. Mark Neale was hoping to arrange another round of exams well before December.
Yesterday, there were more problems. Students said they had been unable to access the civil litigation examination. Some had been left staring at a blank screen for hours. Others had been told to rebook.
This time, the best the Bar Standards Board could offer was an assurance that most students had managed to take the paper:
Our test delivery partner, Pearson VUE, experienced some delays today with the OnVUE platform, which is being used to deliver the centralised assessments online as part of this year’s Bar exams. We apologise for the distress and inconvenience that this may have caused. Pearson VUE has resolved the delay, and the majority of candidates who were meant to test today have been able to complete their exams. We are examining options to ensure that candidates who experience any difficulty with online testing will get another opportunity to sit their exams as soon as possible before December.
It’s not just students who suffer. One senior member of the Bar told me yesterday she was “spluttering with frustration on behalf of the cohort of young barristers-to-be”. The barrister continued:
Today was the critical civil procedure exam. Another digital exam which has turned into a fiasco, as the system went down for a large proportion of the examinees from the outset. Still no explanation as to what has happened though at least they seem to be prepared to admit that this was some sort of central failure. Those who were disconnected during the ethics exam have been informed they will have to do a “resit” in December when in fact they have not had a competently administered attempt on the first attempt. Fortunately the candidate I am personally aware of had the composure to grab his phone and do screen shots of the online failure of the system.
The impact on these students who have already been put off since June and are apparently now being told will be treated as a “re-sit” in December is incalculable. It affects their futures at every level and is in my view scandalous. The [Bar Standards] Board has had months to prepare/oversee a robust system to ensure fairness. The students who are most disadvantaged in terms of personal circumstances will suffer disproportionately.
We all know that computers can go wrong. But Pearson VUE tells us it is using technology that has been in use — in one form or another — for more than 25 years. No explanation or apology has yet appeared on its website.
Update 18 August: The director general of the Bar Standards Board said tonight that “many” students were able to take the examination yesterday. Mark Neale continued:
We intend to offer everyone who took a computer-based exam and experienced a technical failure that prevented them from accessing or completing their exam the chance to sit their exam again as a pen and paper exercise in a secure venue and as soon as possible. Special consideration will also be given to anyone who was booked to take a computer-based exam and whose reasonable adjustments were not delivered as booked. We are working hard with the aim of offering that opportunity in September subject to the BPTC providers being able to arrange venues either on their campuses, if open, or at alternative locations. We are also encouraging pupillage providers to allow people to progress as planned to pupillage this autumn.
Update 7 May 2021: see Bar exam bosses apologise for last summer’s chaos after damning independent review by CJ McKinney for Legal Cheek.