The recent case of AB v XYZ ("the May 2023 case") highlights the high levels of procedural fairness that universities will be expected to apply when investigating and determining allegations of serious student misconduct.
The May 2023 case is the second piece of litigation raised by Mr AB against, XYZ, a University in England and Wales. The Court has anonymised its decision, which means that neither the responding student nor the institution are identifiable. In this blog, we refer to "XYZ" as "the University".
Background
Mr AB previously sued the University in 2020 ("the 2020 case").
Both pieces of litigation arise from the same facts – an allegation of sexual assault of a female while studying abroad. It was accepted by Mr AB that the University was entitled to investigate the allegation even though it had not taken place on its premises, and the complainant was a student of a different institution.
The University commenced disciplinary proceedings against Mr AB. He argued that he was entitled to be legally represented at a hearing before the University's Disciplinary Committee. The University refused to permit Mr AB to be legally represented (although it was prepared to allow a lawyer to accompany him).
Mr AB did not attend the hearing given that he was not permitted to be legally represented. The complainant did attend and gave evidence. The allegation was upheld by the University's Disciplinary Committee and the University decided Mr AB would be "withdrawn" with immediate effect.
The 2020 case
Mr AB sued the University alleging breach of contract. The University's regulations were incorporated into the student contract to which Mr AB and the University were the parties. The regulations included a provision that the Disciplinary Committee had a general power to determine its own procedure, "always providing that they observe the rules of natural justice at each stage".
The judge in the 2020 case recognised that what "natural justice" requires is context dependant. In Mr AB's case, the judge decided that natural justice required not only Mr AB to have a right to be accompanied, but also a right to be legally represented. The judge held that a variety of factors supported that conclusion. They included:
- The serious, sexual nature of the allegation and the long-term consequences of it being upheld.
- The possibility that procedural issues would arise, such as a need to make representations to the Chair of the Committee as to appropriate questions to be put to witness.
- The absence of a reconsideration process in respect of the allegation which would allow Mr AB to be legally represented. The judge did not consider the appeals system – with limited available grounds, and no ability to challenge facts – assisted in protecting against unfairness associated with a lack of legal representation at the Disciplinary Committee stage.
Given that Mr AB had not had the opportunity to be represented before the Disciplinary Committee, the Court ordered the matter to return to the Disciplinary Committee.
Two attempts by the University to obtain permission to appeal against the decision in the 2020 case were unsuccessful.
The subsequent disciplinary proceedings
The matter returned to the Disciplinary Committee in February 2021. Two days before the scheduled hearing, Mr AB was notified that the complainant may not be able to attend the hearing.
The hearing was told that the complainant had communicated that she felt unable to attend the hearing and "re-live what had happened to her again". The University did not have a power to compel the complainant's attendance.
The Committee was satisfied that the University had taken sufficient steps to seek to secure the complainant's attendance and that the reasons given by the complainant for not attending were reasonable in the circumstances.
Mr AB objected (via his legal representative) to the hearing proceeding without the complainant. The objection was not upheld. The Chair of the Disciplinary Committee referred to the duty of care owed to both Mr AB and the complainant. The Chair said that, at the point of deliberating, the Committee would ensure it attributed "appropriate weight" to the evidence from both Mr AB and the complainant.
A subsequent objection by Mr AB to the admission of a prior statement from the complainant was not upheld. It was explained that the Disciplinary Committee's view was that the complainant's evidence was admissible, and that it would decide what weight to give to that evidence, bearing in mind that it "could not be fully tested by questioning".
The Disciplinary Committee upheld most of the complainant's allegation. A subsequent internal appeal by Mr AB was unsuccessful and he was again notified that he would be "permanently withdrawn" with immediate effect.
The May 2023 case
Mr AB again sued the University alleging breach of contract, with reference to the requirement for the Disciplinary Committee to comply with principles of natural justice.
The judge in the May 2023 case drew heavily upon the decision in the 2020 case. He observed that a "central feature" of why natural justice had required Mr AB to be allowed to be legally represented was to ensure that proper questioning could take place of the complainant.
The judge stated that "admission of the evidence without the opportunity to test it by questioning was capable of depriving [Mr AB] of a fundamental protection indicated in the [2020] judgment." With reference to case law in other contexts, the judge noted that, in certain circumstances, hearsay evidence (for example, evidence in statement form) should be rejected altogether as inadmissible, if admitting the evidence would mean a fair hearing could not take place.
The judge criticised the legal advice that had been tendered to the Committee on this matter. He concluded that Mr AB's case was one in which Mr AB "fundamentally contradicted" the evidence of the complainant, and that it was "essential for the purpose of fairness" for Mr AB to have had an opportunity to test the complainant's evidence.
The judge was also critical of the University's explanation of the reason for the complainant's non-attendance at the hearing. He disagreed with the Disciplinary Committee's conclusion that the University had demonstrated sufficient steps to secure the complainant's attendance. He criticised the level of information given to the Committee to enable it to consider the issue of the complainant's non-attendance. Interestingly, the judge also raised the possibility that the University should have offered the complainant her own legal representative.
Implications
It is important to note that each allegation of misconduct, and what a fair procedure will look like to investigate and determine that allegation, is different. There can be no one-size fits all approach. The May 2023 decision may yet be the subject of appeal. It is not binding in Scotland, although may be regarded as persuasive by a Scottish court.
That said, together the decisions in each of the AB x XYZ cases demonstrate the high standards of procedural fairness that courts expect from universities when investigating and determining allegations of serious student misconduct.
Universities may wish to review their policies, procedures, training and guidance against the approach in AB v XYZ. In particular, universities may wish to consider:
- Their approach to legal representation for responding students – blanket prohibitions on the involvement of lawyers in student disciplinary processes could potentially be challenged.
- Support and representation for complainants– this is important in terms of the duty of care owed by universities to complainants. It is also likely to be relevant if a committee is tasked with a scenario, as in the May 2023 decision, in which a complainant student is reluctant to participate in a hearing.
- Efforts to ensure attendance by witnesses – in the past, many student misconduct hearings may have proceeded mostly or exclusively on the basis of written statements. AB v XYZ demonstrates that, in certain circumstances, written statements may not be sufficient. In serious cases, where a party wishes to test important evidence, universities will wish to consider how they ensure a fair process.
- Training for committees and staff – in circumstances where responding students (or their legal representatives) are not permitted to ask questions directly of witnesses, it will be essential for questions to be properly put by others (such as the chair of the committee). This is a challenging exercise, but one which is, in many cases, essential. Universities will wish to ensure staff who are tasked with involvement in misconduct proceedings are appropriately trained.
Brodies supports clients across the education system in dealing with allegations of misconduct. For more information, please contact Niall McLean, Tony Convery or your usual Brodies contact.
