AB v University of XYZ and the right to legal representation

The High Court’s decision in AB v. University of XYZ [2020] EWHC 2978 (QB) provides further guidance on the issue of whether university students have a right to legal representation in disciplinary proceedings. In particular, the decision confirms that whether legal representation is required should be determined by consideration of fairness in the circumstances of the particular case. It also re-affirmed R. v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251 as providing the best guidance on the factors to be taken into account when deciding whether legal representation was required in a particular case. Here we examine the decision and its implications for universities, and indeed for public disciplinary tribunals in other sectors.

The disciplinary proceedings

Student AB was in the final year of his degree at University XYZ when an allegation of sexual misconduct was made against him in February 2019. He was informed by the University that a disciplinary committee would be convened to deal with the allegation, and that whilst he could be accompanied by someone at the hearing any accompanying person could only be present in a supporting capacity - AB would be expected to speak on his own behalf. The stipulation that AB’s accompanying person could only be present in a supporting capacity was one of various issues challenged by his legal representative.

In November 2019, following a disciplinary committee hearing which AB did not attend, the allegation of sexual misconduct against AB was found to have been proven, and AB was consequently expelled from the University. Although he was successful in finding a place at another University, he claimed it was not as prestigious as University XYZ and meantime several job offers had been withdrawn.

The High Court claim

As a result of his expulsion, AB raised proceedings in the High Court in late 2019, seeking amongst other things, an interim injunction to allow him to return to University of XYZ so that he could continue his studies. Although there were a number of issues raised by AB, the key issue was that of his entitlement to legal representation at the disciplinary proceedings. On that issue it was argued that AB was entitled to have any proceedings he was subjected to dealt with according to the principles of natural justice under his contract with the University and that it was a breach of those principles to refuse him permission to be legally represented at the disciplinary hearing. Reference was made to the seriousness of the allegation and the impact it would have on his future career.

University XYZ did not dispute that AB was entitled to have the proceedings dealt with according to natural justice but argued that the application of the principals of natural justice did not entitle AB to representation in the particular circumstances of his case.

In reaching his decision, Hugh Southey QC, sitting as a Deputy Judge of the High Court, referred to the fact that parties’ submissions had at times failed to distinguish between a right to legal representation based on the nature of the proceedings, and a right to legal representation based on the specific circumstances of the case. He reminded parties of the general reluctance of the courts to find any entitlement to legal representation based on a broad classes of case, and made clear that the mere fact that AB’s claim arose from disciplinary proceedings did not of itself entitle AB to a right to representation.

The correct approach was instead to consider the circumstances of the individual case. In this case, the University’s regulations had provided for a student to be accompanied at the hearing but did not allow for representation by that companion. Such provisions did not obviate the University’s duty to ensure natural justice in its procedures, and accordingly the provisions needed to be read to give effect to that duty. Essentially, if fairness required it, then legal representation ought to be allowed.

The court referred approvingly to ex parte Tarrant and the guidance it offered on the factors to be taken into account when assessing whether legal representation was required (the Tarrant criteria: the seriousness of the charge and the potential penalty; the complexity of any allegations; whether any points of law are likely to arise; the capacity of the individual to present their case; procedural difficulties, such as the need to interview or cross-examine witnesses; and the need for reasonable speed in the decision-making process). Having done so, the court determined that in the circumstances of AB’s case some factors did not point to legal representation being required, but a number of significant factors did - including the serious nature of the allegations AB was facing. Overall, the court found AB entitled to legal representation.

In reaching this conclusion, the court took into account various procedural safeguards the University had in place with the aim of protecting students (e.g. the ability of the student to suggest questions to be asked at the disciplinary hearing, and the ability to make representations to the committee in writing). However, in the court’s opinion none of those safeguards went so far as to render legal representation unnecessary.

It is also worth pointing out that, whilst the court found that legal representation should have been permitted in AB’s particular circumstances, it also recognised the risk of disciplinary proceedings becoming too adversarial if legal representation were commonly allowed. In particular, the court expressed the view that legal representation should not become routinely permitted, a view no doubt reassuring to universities – and other public disciplinary tribunals – who are understandably keen to retain a degree of informality in their proceedings and to limit the adversarial nature of such hearings.

Conclusion

This decision confirms that a student has no absolute right to legal representation at disciplinary hearings, and that where there is no statutory provision or rule either prohibiting or permitting legal representation at a disciplinary hearing, whether to allow representation in any given case is a matter for the relevant committee’s discretion having regard to the rules of fairness and natural justice. The decision helpfully clarifies that where there is a rule prohibiting legal representation (for example, in the University’s disciplinary rules), such a rule may be in breach natural justice. Whether there is in fact a breach of natural justice and a right to legal representation can only be determined by considering the particular circumstances of the given case.

When universities – and other public disciplinary tribunals – receive requests from students seeking permission to be legally represented at disciplinary hearings, such requests should be considered on a case-by-case basis. Disciplinary committees should avoid the adoption of a blanket approach to such requests: they must be prepared to permit legal representation when natural justice requires it in a given case. Regrettably that may be a question on which they themselves need to take legal advice. They may also, however, take some comfort from the court’s expressed view in this case that permitting legal representation should not become routine.

For further information in relation to any issues arising from this article, please contact Graeme MacLeod or Catriona Garcia-Alis.