“the Claimant’s evidence is that his expulsion from the university of XYZ resulted in job offers being withdrawn however he has obtained a place at another university that he says is less prestigious. Unlike the university of XYZ, it is not a Russell Group university.”
“Misconduct is defined as improper interferences in the broadest sense with the proper functioning or activities of the institution, or with those who work or study in the institution, or action which otherwise damages the institution whether on University premises or elsewhere.” [Emphasis added]
“Misconduct is classed as either minor or major depending on the seriousness of the alleged offence, and the specific procedures for each are set out below.” (iii) Paragraph 1.4 provides: Examples only of what would normally be regarded as major offences are: “…sexual misconduct, including but not limited to: sexual intercourse or engaging in a sexual act without consent, attempting to get engage in sexual intercourse or engaging in a sexual act without consent, sharing private sexual materials of another person without consent, kissing without consent, touching of a sexual nature through clothes without consent, inappropriately showing sexual organs to another person, repeatedly following another person without good reason, and/or making unwarranted unwanted remarks of a sexual nature.” (iv) Paragraph 3.3 provides: “A student who is charged with a disciplinary offence under this regulation will always be specifically informed of the details of the alleged offence and given the opportunity to defend themselves…” (v) Paragraph 3.5 provides: “A student charged with a minor offence may be accompanied at any meeting with the authorised officer or any disciplinary or appeal hearing by another student from the University or a member of staff from the University or Students' Union. A student charged with a major offence may be accompanied at any meeting with the Investigating Officer or any disciplinary hearing by any one other person. The student will normally be expected to speak on their own behalf in their own defence.” [Emphasis added]
“Where a student does not appear on the day appointed for a hearing under this Regulation, and the authorised officer or committee is satisfied the student has received notice to appear and has not provided a satisfactory explanation for their absence, the authorised officer or committee may proceed to deal with the case and if appropriate, impose an appropriate penalty in the absence of the student.” (vii) Paragraph 3.7 provides, among other matters: “The Discipline Committee or the Appeals Committee will also be subject to any further University guidelines approved by the Senate. Subject to the terms of this Regulation and any such guidelines, an authorised officer or committee has the power to determine their own procedure for hearing a case, always providing that they observe the rules of natural justice at each stage…” [Emphasis added]
“Both the student and the University may call witnesses to give evidence at any disciplinary hearing, provided that the details of the witness (and copies of any written evidence or other documents) are provided typically at least five working days in advance of the hearing. Witnesses may be questioned by both parties and the authorised officer or committee hearing the case.” [Emphasis added]
“Where an offence committed under any Ordinance or Regulation, Policy or Code is considered as falling within the definition of misconduct set out in section (1) 1.1 it will be dealt with under this Regulation. This will include, but is not limited to misconduct under the following…Sexual Misconduct Policy…” (ii) Paragraph 3.4 provides: “Where an allegation of misconduct has been made against the student they may be accompanied at any meeting with the authorised officer, the Investigating Officer, or any disciplinary or appeal hearing by another student from the University or a member of staff from the University or Students' Union who has not been part of the complaint/case. The student will normally be expected to speak on their own behalf. The accompanying individual is there in a support role not as an advocate.” [Emphasis added]
“Where a student has been given due notice of the hearing and without prior notification does not appear and has not provided a satisfactory explanation for their absence, the committee may proceed to deal with the case and if appropriate, impose an appropriate sanction in their absence.” (iv) Paragraph 3.6 provides: “The Discipline Committee or the Appeals Committee will also be subject to any further University guidelines approved by the Senate. Subject to the terms of this Regulation and any set procedural guidelines, the Chair of the Committee has the power to determine their own procedure for hearing a case, always providing that they observe the rules of natural justice at each stage. The Chair of the Committee may postpone, continue or adjourn the case at their discretion.” [Emphasis added]
“… that there was a material irregularity or failure in procedure in the conduct of the original hearing.”
“Our University guiding principles make clear that we do not tolerate sexual misconduct, violence or abuse (Principle 3). They also make clear that we are committed to providing a campus environment in which all members of our community feel safe and are respected …Sexual misconduct covers a broad range of inappropriate and unwanted behaviours of a sexual nature. It covers all forms of sexual violence, including sex without consent, sexual abuse (including online and image-based abuse), non-consensual sexual touching, sexual harassment (unwanted behaviour of a sexual nature which violates your dignity; makes you feel intimidated, degraded or humiliated or creates a hospital hostile or offensive environment), stalking, abusive or degrading remarks of a sexual nature, and a vast range of other behaviours. …”
“occurs whilst a student is engaged in any University…related activity (including placements and trips) … in the view of the University poses a serious risk or disruption to the University or members of its community.”
“You will behave in a way that will not jeopardise the future of the programme or jeopardise the opportunity for other students to experience study abroad; You will at all times behave in a way that respects the rights and dignity of others …You will behave in a way that will not compromise your personal safety and security or that of others which may arise, for example, through consumption of alcohol or use of drugs …Any form of behaviour which offends others, puts you and/or others at risk or in danger, or seriously disrupt or prejudices the work or study of others, or could be deemed to, will not be tolerated.”
“56. In R v Secretary of State ex p Doody[1994] 1 AC 531 Lord Mustill held: “… the respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair.”
“… it seems to me that the proper purpose of cross-examining a factual witness is two-fold: first, to seek to undermine or qualify or mitigate the effect of evidence they have given which is adverse to the cross-examining party – for example by challenging the credibility or reliability of the witness, or otherwise testing the completeness or accuracy of their evidence – and second, to elicit further factual testimony helpful to the cross-examining party.”
“Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole Board taking such evidence into account. It should normally be sufficient for the board to bear in mind that that evidence is hearsay and to reflect that factor in the weight which is attached to it. However, like the judge below, I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the individual case.”
“i) Even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions referable to the absence of the witness sought to be cross-examined, whether by reason of death, absence abroad or the impracticability of securing his attendance. ii) In criminal proceedings there is no ‘sole or decisive’ rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant. iii) In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine pursuant to Article 6(3)(d). iv) However disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial spelt out in Article 6(2) and (3) including in particular the right to cross-examine witnesses whose evidence is relied on against them. v) The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors. vi) Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case's classification as civil or criminal. vii) The ultimate question is what protections are required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one. viii) In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser, need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examine the accuser.”
“[N]o reasonable Panel in the position of the FTPP could have reasonably concluded that there were factor outweighing the powerful factors pointing against the admission of the hearsay … The means by which the Claimant can challenge the hearsay are … not … capable of outweighing those factors …. The reality would appear to be that the factor which the FTPP considered decisive in favour of admitting the hearsay was the serious nature of the allegations against the Claimant coupled with the public interest in investigating such allegations and the FTPP’s duty to protect the public interest in protecting patients, maintaining public confidence in the profession and declaring and upholding proper standards of behaviour … It is of course self-evidently correct that the greater is the gravity of allegations, the greater is the risk to the public if there is no or no effective investigation by a professional body such as the FTPP into them. However, that factor on its own does not … diminish the weight which must be attached to the procedural safeguards to which a person accused of such allegations is entitled both at common law and under Article 6 …. The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safeguards. There is no public interest in a wrong result.”
“1.1 The admission of the statement of an absent witness should not be regarded as a routine matter. The FTP rules require the Panel to consider the issue of fairness before determining the evidence. 1.2 The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objection to admissibility. 1.3 The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence. 1.4 Where such evidence is the sole or decisive evidence in relation to the charges, the decision whether or not to admit it requires the Panel to make a careful assessment, weighing up the competing factors. To do so, the Panel must consider the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied either that the evidence is demonstrably reliable, or alternatively that there will be some means testing of its reliability.”
“Ms 1 and Ms 2. The decision to admit the witness statements despite their absence required the panel to perform careful balancing exercise. In my judgment, it is essential in the context of the present case for the panel to take the following matters into account: (i) whether the statements were the sole or decisive evidence in support of the charges; (ii) the nature and extent of the challenge to the contents of the statements; (iii) whether there was any suggestion that the witnesses had reasons to fabricate their allegations; (iv) the seriousness of the charge, taking into account the impact which adverse findings might have on the Appellant’s career; (v) whether there was a good reason for the non-attendance of the witnesses; (vi) whether the Respondent had taken reasonable steps to secure their attendance; and (vii) the fact that the Appellant did not have prior notice that the witness statements were to be read.”
“RECONVENED: 11:05 “The Chair responded to the legal representative of the respondent that the committee appreciated the fact that he was there to represent his client and, that the committee wanted to be as fair as possible to both parties. The Chair was clear that the university had a duty of care to both parties – the reporter and the respondent – and on that basis the meeting would continue. At the point at which the committee members had heard all the evidence the Chair would ensure that during their deliberations they attributed appropriate weight to the evidence given by both the reporter (through the Investigating Officers report) and the respondent. The University legal representative stated that Simon Butler had sent through a series of cases on behalf of his client that related to Fitness to Practise statutory hearings where hearsay evidence had been admitted into the proceedings in lieu of oral testimony. In those cases it was decided that it was unfair to reach a decision on the basis of the hearsay. There was no general prohibition on relying on hearsay evidence in internal disciplinary cases (to which the strict rules of admissibility of evidence did not apply). The panel however had to act fairly and reasonably. It was reasonable to continue and at the deliberation stage all committee members would be required to attribute appropriate weight to the reporter evidence and understand that the reporter evidence could not be fully tested by questioning. The Chair reiterated that at the deliberation stage of the meeting he would ensure that the committee attributed appropriate weight to the reporter evidence and therefore the meeting would proceed. Simon Butler responded by stating that he disagreed with the decision to continue on the grounds that there would be no direct evidence given by the reporter. He advised the committee that they could not attach any weight to the reporter evidence and that when dealing with sexual misconduct cases there were consequences for the respondent whether the case was found proven or not. He wished for his objections to be noted for the record.”
“(d) Whilst the reporter did not attend the meeting in person the Committee was satisfied that the University had taken sufficient steps to seek to secure her attendance and that the reasons she adduced for not attending were reasonable in the circumstances. (e) The Committee acknowledged that hearsay evidence did not have the same probative value as personal testimony and that it did not afford the opportunity to question and therefore to test fully the written evidence. The Committee however found the reporter’s initial witness statement in particular to be an honest and compelling account and that, in the context of internal University proceedings to which the strict rules of evidence did not apply, weight could generally be attached to it. During its deliberations, the Committee considered the various points made on behalf of the respondent about areas where he disputed the reporter’s version of events and its findings of fact in relation to these are set out below in the resolutions reached.”
“(i) That the committee made the following findings of fact when reaching their decision that the case was proven: (1) Sexual activity occurred in the early hours of the morning of14 November 2018 (2) The reporter did not have capacity to consent to sexual activity in the early hours of the morning of14 November 2018 and therefore did not consent. (3) The respondent did not reasonably believe that the reporter consented. Element (1) That sexual activity had occurred in the early hours of14 November 2018 was not disputed by either party. The respondent disputed that further sexual activity had taken place later that morning and, in view of the fact that the reporter was not present to answer questions, the Committee concluded that there was insufficient evidence to be satisfied that, on the balance of probabilities, further sexual activity occurred. Element (2) The reporter’s account was consistent with diminished capacity as a result of intoxication and her friend was sufficiently concerned in view of her intoxication to ensure that she did not walk home alone. The Committee placed particular weight on the fact that the reporter sat on the toilet in the respondent’s flat to “get herself together” and the respondent’s description of her as “passed out” shortly thereafter. The reporter’s motor functions (i.e., her ability to walk) were not considered by the committee to be indicative of having capacity to consent. Element (3) The Committee did not find credible the respondent’s account of impaired judgment by reason of intoxication. He was not too intoxicated to be relied upon by the reporter’s friend to walk her home. He stated that he stopped at an ATM to withdraw money to pay his rent which was due for payment the next day. Further, he had the presence of mind to contact a number of friends to ask for advice about sleeping in the bed with the reporter, though he did not follow that advice. He had weighed up in his mind that it would be too noisy to move the mattress from the cupboard on the other side of the flat to sleep on. He had also considered moving the two dogs so that he could sleep on one of the sofas but again decided that it might also disturb his flatmates as the dogs were ‘massive’ and might be upset by being woken up at 4:00 a.m. These were not the actions and deliberations of a person so intoxicated that their judgment was impaired. The photographs of the flat provided by the respondent clearly show a narrow bed that it would have been difficult for two people to sleep in. There were alternative sleeping arrangements for him to make, given his concerns about sleeping in the same bed as the reporter, for example, he could have slept on the floor. The Committee concluded that the respondent knew he did not have the reporter’s consent to sleep in the same bed, where close physical proximity was inevitable. The Committee noted that the respondent said he got into the bed because he thought he could trust himself (i.e., not to engage in sexual activity with the reporter). The Committee therefore concluded that when he got into bed next to the reporter, without her consent, he had recognised the possibility that proximity to her might present the opportunity for sexual activity. The Committee concluded that though the respondent stated he got into bed with the reporter because he thought he could trust himself, the respondent took advantage of the reporter’s incapacity and knew that he had done so. He sent the reporter an apology for his behaviour later that day and the Committee was not convinced by his explanation that he was feeling guilty because he had a girlfriend and did not wish the reporter to have a false hope for a longer-term relationship with him.”
“I have been particularly concerned by the need for fairness between the Claimant and the Complainant. There is an obvious risk that Complainants may be deterred from making and pursuing complaints if they fear being subject to an overly formal procedure involving lawyers. However, it appears to me that the dangers of this should not be overstated. A lawyer may act as a buffer between a respondent to disciplinary proceedings and the Complainant. It is difficult for a victim to have to face someone who they allege assaulted them. It also appears to me the dangers of a Complainant being intimidated by a lawyer can be limited by effective chairing of the disciplinary committee. For example, limiting questioning is an important way of protecting Complainants. In particular cases fairness may even require the Complainant to be legally represented. I have no way of knowing whether legal representation of the Complainant was required in this case as I know little about her. For example, I do not know whether she would have wanted legal representation if it had been offered to her. However, it does not appear to have been impractical to arrange legal representation. It is of note that the evidence of GV anticipated legal representation being arranged for the Complainant had the Claimant been accompanied by a lawyer.”
“A’s complaint is that Judge’s decision is ‘unprecedented and impossible to reconcile with existing case law’, in particular, the decision of the Supreme Court in R (G) v Governors of X School[2012] 1 AC 167 . The Supreme Court held that article 6 did not apply to an internal disciplinary hearing which led to the dismissal of a teaching assistant because the Independent Safeguarding Authority (‘the ISA’) would ultimately decide whether the Claimant could continue to work as a teacher, so that the decision of the governors was not a determination of his civil rights and obligations. The Supreme Court did not consider what the common law might have required, as that issue was not before it. The issue was whether article 6 would require legal representation both at the internal disciplinary hearing and before the ISA (judgment, paragraphs 32 and 33). It was accepted that legal representation was permitted in the ISA procedure. The decision in G does not arguably show that the Judge’s conclusion in this case was wrong. It does not show that article 6 does not require legal representation and it simply does not deal with, still less decide, the content of the rules of natural justice at common law in the contractual context of this case.”