The relationship between universities and their students is a contractual one and, in the event of disciplinary proceedings, fundamental rules of natural justice apply. The High Court powerfully made that point in finding that an undergraduate accused of serious sexual misconduct was not afforded a fair hearing.
The man was expelled from the university following a disciplinary committee hearing that the complainant – a student at another university – did not attend. He was informed by the university that she felt unable to attend and relive what had happened to her. The university had no power to compel her attendance.
After he launched proceedings, the Court noted that the university’s regulations placed it under a contractual duty to conduct the proceedings in accordance with the rules of natural justice. Given that the university was providing publicly subsidised education as a public service, the standards of procedural fairness required of it were no different from those that would apply to any public authority. Observance of those standards was particularly important given the gravity of the allegation and the potentially very serious consequences for the man’s education and career.
The complainant’s non-attendance meant that her account of events – which the man hotly disputed – could not be tested in cross-examination. The case against him depended upon the veracity of her uncorroborated testimony and her complaint was upheld solely or principally on the basis of her hearsay evidence. The university had in any event not established that it took sufficient steps to secure her physical or remote attendance at the hearing.
The Court found that the committee had failed to give proper or adequate consideration to whether her hearsay evidence could be fairly admitted. In the absence of cross-examination, its conclusion that her untested testimony was honest and cogent was irrational and a demonstrable breach of natural justice. Unfair and unreasonable weight was given to her hearsay evidence and, without her testimony being properly tested, it was not possible to find the case against the man proved.
Giving guidance for the future, the Court acknowledged that universities owe a duty of care to their students. However, complainants in disciplinary proceedings should not be afforded protections or allowances at the expense of procedural safeguards designed to ensure a fair hearing. The man was entitled to a full and fair opportunity to defend himself and he should at least have been permitted to funnel questions to the complainant via the committee’s chair. The Court ruled that the committee’s decision, having been arrived at in breach of both contract and natural justice, should have no effect.