The High Court case of AB v The University of XYZ  EWHC 2978 (QB) sheds much-needed light on the issue of “natural justice”, and whether university students facing disciplinary proceedings have the right to legal representation.
AB was a third-year student who was accused by another student of non-consensual sex. AB claimed the sex was consensual. He was invited to the university’s disciplinary committee hearing.
As is the case in many universities, the regulations allowed a student charged with a major offence to be accompanied but not represented by another person. AB engaged a lawyer who argued that AB should be allowed legal representation at the hearing. The university stuck to the letter of its regulations – AB could be accompanied by a lawyer but not represented by one.
The hearing took place without AB. The case against him was upheld and he was forced to withdraw from the university.
AB sued the university in breach of contract for denying him legal representation before the disciplinary committee.
The university’s regulations made it clear that a disciplinary committee must comply with natural justice – but the court noted that:
Were this not the case, there would be an implied contract term that the disciplinary process be fair.” 
The court said there is no automatic right to legal representation in disciplinary proceedings, but such a right could exist:
…when that was necessary for fairness.” 
The university’s regulations had to be interpreted in light of the duty to ensure natural justice. Legal representation is required when fairness demands it. The court’s role was to interpret what natural justice required in the case of AB.
To answer that question, the court applied the criteria found in R v Secretary of State for the Home Department ex p Tarrant  QB 251.
The seriousness of the charge
AB case involved serious criminal conduct which could result in withdrawal from the university. AB also lost a year of studies and the course fees for the year.
Whether any points of law are likely to arise
There was no legal complexity. The key issue was a factual one – whether the sex was consensual and consent is a relatively straightforward concept.
The capacity of the person seeking representation to understand the case against him
AB was a third-year student who had coped with his studies and who could understand the case against him.
There were probable procedural issues. For example, the chair of the disciplinary committee planned to “‘filter” questions by deciding which questions could be asked to the complainant. This was acceptable – but had to be done in a fair manner. There may have been a need to make representations on the fairness of the chair’s filtering.
The need to avoid delay
This was of limited significance as AB had a legal representative available.
The need for fairness between the person seeking representation and the person making the allegations
Although there was a danger that complainants would be deterred from making complaints by the involvement of lawyers, such dangers should not be overstated. A lawyer can act as a buffer between the complainant and the accused. Intimidation by a lawyer can also be limited by good chairing of the committee.
The court deemed significant the fact that there was no reconsideration process that enabled AB to be legally represented. The appeal to the university’s Senate had more limited grounds and did not allow legal representation either.
Weighing up the Tarrant criteria, the court concluded that AB was entitled to legal representation. The judge wrote:
It appears to me that in this case the significance of what was in issue strongly points towards the need for legal representation”
He added that this was consistent with the guidance of the Office of the Independent Adjudicator, whose Good Practice Framework: Disciplinary Procedures states at paragraph 23:
It is good practice for providers to permit legal representation in complex disciplinary cases, or where the consequences for the student are potentially very serious.”
The judge noted that
This is a context where the Claimant has a legitimate sense of injustice at being denied legal representation in the disciplinary proceedings.” 
More than semantics
The court observed that there was a significant difference between being accompanied by a lawyer and being represented by one. A representative can tailor their arguments to whatever is happening in the hearing and address the committee directly if, for example, the committee refuses to allow questions on a particular subject. If the student had to pass on the lawyer’s advice to the committee, he or she may have to do so without even understanding the points made by his advisor. 
The judge also commented that “all professional advocates know that it takes training and experience to talk with confidence and clarity during a hearing.”  Earlier in the judgement, the judge cited Lord Justice Laws in R(G) v Governors of X School  2 All ER 555:
A professional advocate might properly make a great deal of difference to the flavour and the emphasis of [conclusions reached by a disciplinary body]; and if there were any contest as to the primary facts, to that also.’
The Court ordered the university to arrange a further disciplinary committee.
The importance of flexibility
In my experience as a barrister representing students, universities often adopt a rigid stance about legal representation – seeking refuge behind their regulations.
AB shows that such a stance may be contrary to natural justice and unlawful, particularly where the stakes for the accused student are high. Unless a university’s contract with the student expressly excluded natural justice – and this is unthinkable since what right-thinking student would ever attend such an institution – the contractual provisions about (non-)representation must be read in light of the overriding duty to ensure natural justice.
The Tarrant criteria provide a starting point from which to assess whether fairness requires legal representation, although not every criterion need be met.
AB also explained the value of skilled, professional representation to students facing disciplinary proceedings.
It is hoped that universities will pay heed to the judgement in AB and allow legal representation in serious cases, although I fear that in reality many students seeking to exercise their right to legal representation will encounter the usual “brick wall” of an administrator’s incantation of the university’s regulations. They will have to initiate stressful, costly and time-consuming legal proceedings to obtain justice.
Many, of course, will not have the means, knowledge, or desire to challenge the university and will attend potentially life-changing hearings without appropriate representation.