Should sexual violence cases go to the OIA?

It is, after all, an alternative dispute resolution service approved by the Chartered Trading Standards Institute (CTSI) as a consumer alternative dispute resolution (ADR) body.

And plenty of courts have pretty much required students to use it before engaging formally legally.

But once we’re not talking about academic appeals or service complaints, and we’re into student disciplinary processes, does the position hold?

In a recent legal case, a final year student about to sit his exams was expelled after City, University of London found that they had had sex with another student without her consent.

Across 2020 and 2021, the student was in a sexual relationship with another student – and in February 2022, the reporting student reported an allegation of serious sexual assault to the police. That accused student was not interviewed, and the police did not pursue the case any further.

That month, the reporting student raised the same allegation with the university. The accused student was asked to attend an interview as part of a Stage 2 investigation – but argued that they were not provided with the specifics of the allegation.

The accused student then attended a Stage 2 investigation meeting, again without being informed of the specific allegation – and by June a Stage 2 Disciplinary Panel hearing took place, after which the student was expelled with immediate effect – but they argued that “no rationale” was provided for upholding the allegation.

In July, the student appealed the decision – but the Stage 3 Panel upheld the expulsion in October, leaving the student expelled.

They then initiated judicial review proceedings to challenge the decision. The university contested all grounds of the review, arguing that the student was able to access the alternative remedy of taking their complaint to the OIA.

Initially, that judicial review was denied – partly because the OIA was deemed an adequate alternative remedy to judicial review.

But then permission to appeal was granted on two grounds – breach of a procedural legitimate expectation and failure to give adequate reasons.

The judge noted that it was:

…arguable that the original (very serious) allegations may not have been made clear to the appellant before he was interviewed and where the reasons for the original decision by the Stage 2 panel … were, on any view, extremely meagre.

The university’s case did not accept these points and they were considered at the appeal stage.

Crucially, at the appeal hearing (and you can watch the ruling here) the Court of Appeal rejected the university’s proposal of “hiving off the issue of alternative available remedy” because the issue needed to:

…be seen in full context and [was] not a purely arid question of law that can safely or properly be disposed of separately.

ADR, typically aimed at quicker resolution, might not have provided the depth of examination required for the case. Both parties needed more time to present detailed evidence and arguments – ADR might have limited the opportunity to introduce and examine that detailed evidence – crucial for a fair resolution.

And the court referenced legal precedents which supported the necessity of detailed and thorough judicial review in complex cases – suggesting that full hearings are often necessary to ensure justice is served, rather than opting for expedited methods like ADR.

That is significant – because it implies that the OIA will not necessarily be seen by the courts as an adequate alternative remedy for cases involving sexual violence.

At this stage the university acknowledged that the disciplinary process it followed in the case was flawed – and breached its own regulations by failing to provide the student with details of the allegations against him ahead of his interview, and in its failure to provide adequate reasons in finding that the allegation of serious sexual misconduct was upheld.

The university agreed to withdraw the Stage 3 Panel decision entirely and to reconsider the case at Stage 2 of the disciplinary process – the student was reinstated and will continue with his remaining module pending the outcome of any further disciplinary proceedings.

Of course given that the alleged incident was in September 2021, that does make it tricky for the university to adjudicate fairly – not least because the student argues that he’s been “wrestling with not inconsequential psychological and financial impacts of the 2+ years of proceedings.”

On one level the case reminds universities of the importance of following their own procedures and making clear to students what the allegations are in misconduct cases. But it’s also a warning that failing to do so may well allow a student to leapfrog the OIA and go straight to court.

A City, University of London spokesperson said:

The university does not comment on individual student cases. We are always looking to improve our processes and have refreshed our approach ahead of the Office for Students’ (OfS) publication of a condition on Harassment and Sexual Violence and any associated guidance. We note that the Court of Appeal had indicated that it would consider the matter before the OIA independent alternative dispute resolution process that the university subscribes to, and which parliament had legislated to provide a free route for students to have complaints considered.