City University concedes important Court of Appeal case on procedural fairness for students accused of sexual misconduct

In XYZ v City, University of London (CA-2023-00634), City University expelled XYZ, a final year student about to sit his exams. He was expelled with immediate effect, after being found guilty of serious sexual assault following a fundamentally unfair disciplinary process in which the University breached its own Disciplinary Codes.

XYZ challenged the University’s decision by judicial review, which then went up to the Court of Appeal to be heard before the Lady Chief Justice, Baroness Carr, the Vice President of the Civil Division, Lord Justice Underhill and Lady Justice Nicola Davies.

The allegation dated back to September 2021. XYZ was expelled in 2022. City University conceded the case, agreeing to pay XYZ’s legal costs, just days before the Court of Appeal hearing due to be held in May 2024.  The expulsion just before XYZ had completed his degree and the contested litigation, which was drawn out until days before the final hearing, have had a significant adverse impact on XYZ’s mental health and career. 

Shortly before the final hearing in the Court of Appeal, City University, finally conceded that it had breached its own procedures and provided inadequate reasons when it found XYZ guilty of sexual misconduct and expelled him with immediate effect.

The oral ruling of the Lady Chief Justice at an earlier hearing and the agreed statement of reasons provides useful guidance for students, both those accused and those reporting, and universities grappling with difficult issues arising from investigations into allegations of sexual misconduct made against university students.

The facts of this case were that XYZ attended City University between 2018 and 2022. Between September 2020 and October 2021, he was in a sexual relationship with another student (“the reporting student”). In around February 2022, the reporting student raised with the police an allegation of serious sexual assault against XYZ, which was alleged to have occurred in September 2021. The Claimant was not interviewed, and the police took no further action. The next month, the reporting student then raised the allegation against XYZ with the University. XYZ was called in to a preliminary interview as the first part of a Stage 2 investigation, but not given the detail of the allegation. 

XYZ then attended a Stage 2 investigation meeting, and again not told what the allegation was ahead of the meeting. Following a Stage 2 Disciplinary Panel hearing in June, at which the University were required to specify the allegation, XYZ was expelled with immediate effect, and with no reasoning for the decision upholding the allegation.

XYZ appealed in July. By a decision in October the Stage 3 Panel upheld the decision. XYZ remained expelled.

XYZ lodged judicial review proceedings challenging the decision of the Stage 3 Panel. The University disputed all grounds and relied on XYZ having available to him the alternative remedy of taking his complaint to the Office of the Independent Adjudicator for Higher Education (‘the OIA’). Permission was refused on the papers and at an oral renewal hearing, in part because the OIA was considered to be an adequate alternative remedy to judicial review. 

Permission to appeal to the Court of Appeal was granted by Lord Justice Coulson on 5 July 2023 on two grounds: breach of a procedural legitimate expectation and the failure to give adequate reasons. Coulson LJ considered 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 judge [at oral renewal] not only said that this latter point was “probably the strongest of the Grounds”, but also did not explain why she was not persuaded that it was arguable”.

An appeal hearing was listed for 27 February 2024. At that hearing, the Court of Appeal determined that there should be a further “rolled up” hearing at which the appeal would be heard and, if the appeal were allowed, the claim for judicial review would be determined. In its ruling (available to watch here), the Court of Appeal rejected the University’s proposal of “hiving off the issue of alternative available remedy” at that hearing. 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.” This is significant guidance from the Court of Appeal, which suggests that the OIA is not necessarily an adequate alternative remedy in cases where there are allegations of sexual violence against university students, and that the existence of a complaint to the OIA is not a question that can be summarily determined before a full hearing.

In the detailed statement of reasons, the University acknowledged that the disciplinary process followed in the XYZ’s case was flawed in its breach of its own regulations, by failing to provide the Claimant with details of the allegations against him ahead of his interview, and in the failure to provide adequate reasons in making the finding that the allegation of serious sexual misconduct was upheld.

In conceding the appeal, the University agreed to withdraw the Stage 3 Panel decision entirely, to reconsider the Claimant’s case afresh at Stage 2 of the disciplinary process and to reinstate XYZ. XYZ will continue with his remaining module pending the outcome of the consideration of any further disciplinary proceedings, if started afresh. The impact of the passage of time on the University adjudicating on an allegation, going back September 2021, remains to be seen. XYZ commented that he and his family are “wrestling with not inconsequential psychological and financial impacts of the 2+ years of proceedings.”

Higher Education in 2024: Law and Practice Update' - 1 July 2024

To learn more about legal issues for practitioners working in the field of higher education law, our Nicola Braganza KC and Ollie Persey will be on the panel at our upcoming event: 'Higher Education in 2024: Law and Practice Update' on 1 July 2024.