What does “natural justice” mean at university disciplinary hearings?

Daniel Sokol reflects on a High Court case that helps to clarify what fairness means in the context of university disciplinary cases

Daniel Sokol is the founder of Alpha Academic Appeals

The High Court case of AB v The University of XYZ [2020] 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.” [82]

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.” [87]

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.

Natural justice?

To answer that question, the court applied the criteria found in R v Secretary of State for the Home Department ex p Tarrant [1985] 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.

Procedural difficulties

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.” [92]

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. [93]

The judge also commented that “all professional advocates know that it takes training and experience to talk with confidence and clarity during a hearing.” [93] Earlier in the judgement, the judge cited Lord Justice Laws in R(G) v Governors of X School [2010] 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.

4 responses to “What does “natural justice” mean at university disciplinary hearings?

  1. At least in Australia, the better practice is to refer to ‘procedural fairness’ rather than ‘natural justice’ since ‘natural justice’ gives the misleading impression that the doctrine concerns the merits of the case.

  2. Without wanting to get into a debate with a barrister on points of law which can be well argued by someone in the profession…I feel that progress was made in particular around sexual misconduct and harassment procedures in light of the work of NUS & UUK and the production of the Guidance on Handling Student Misconduct. This work was to take us beyond the Zellick report which insisted on such cases being dealt with in the courts, that misconduct of this nature was not for universities to handle. Bringing lawyers back into sexual misconduct cases at university level is in danger of being a backwards step. Many reporting students choose to follow a university complaint rather than go to the police & through a legal process because of the challenges & trauma involved in the legal process. The impact puts reporting students back into a worse position, and could un-do the good work and progress that has been made in the sector in this area.

  3. This AB/XYZ case was cited in the 2021 third edition of our text, The Law of Higher Education (OUP, at footnote100 in para 21.26 at p780). And at pp475-480 we discuss fairness in disciplinary proceedings, noting even before this AB case that in ‘serious or complex’ cases the S should have access to legal representation (para 12.49). It is helpful that Mr Sokol and WonkHE now bring it to wider attention than the very few in HE management who ever bother to access our book. As with Employment Tribunals where there can be non-lawyer wingers on the panel, so in HE the disciplinary panel needs to be chaired by a lawyer or at least by somebody with nous and duly trained in procedural rules that engender fairness, and by all means aided by wingers as academic or student members of the panel. This is especially crucial where the result could be termination of a student’s registration as well as in effect branding the student as a cheat or as committing sexual harassment, or resulting in other serious potentially long-term reputation damage. And, as stated in the article, the accused deserves legal representation where there are heavy penalties potentially to be applied. What, of course, next needs addressing is who pays for such legal aid? – does the U just assume S has a Rich Daddy?!

  4. There is no such thing as ‘non-consensual sex’ in law. There is sex (consensual) or sexual assult (non-consensual).

    Calling an actual or alleged sexual assult ‘non-consensual sex’ is a way to minimise the harm of sexual assult, encouage victim-blaming, and downplay the actions of the perpetrator.

    If we want things to improve, we need to stop perpetuating rape myths.

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