Do students have the right to legal representation at disciplinary hearings?

21st July 2023

In certain cases, fairness may necessitate legal representation.

In AB V The University of XYZ [2020] EWHC 206 (QB), the Court considered whether a student had the right to legal representation at a disciplinary hearing. In this case, AB was accused of sexual assault against a female student. AB claimed that the sexual contact was consensual, which was denied by the female student.

AB claimed that he was entitled to representation at the disciplinary hearing. However, in accordance with the University’s Regulations, a representative could only attend in support and not as an advocate on AB’s behalf. The Disciplinary Committee upheld the sexual misconduct allegation against AB and was excluded from the University. AB subsequently brought a claim in the High Court seeking a declaration that he was entitled to legal representation.

The relationship between AB and the University is a contractual one and by AB accepting an offer of a place at the University he was agreeing to abide by the University’s “Regulations”. Whilst the Regulations indicated that the Discipline Committee had the power to determine their own procedure for hearing a case, they must still observe the rules of “natural justice”. In addition, when considering whether legal representation is required in a particular case, the factors set out in the Tarrant case must be considered. These are as follows:

  • 1. The seriousness of the charge;
  • 2. Whether any points of law are likely to arise;
  • 3. The capacity of the person to understand the case against them;
  • 4. Procedural difficulties;
  • 5. The need to avoid delay;
  • 6. The need for fairness between the defendant and those making the allegations.

Applying the Tarrant factors, the Court held that AB was entitled to legal representation as the allegation of sexual misconduct was a serious issue which had serious consequences, if upheld. The Court held that the University had an overriding duty to ensure natural justice and legal representation can be required if necessary for fairness. Even if there was no express term about legal representation in the student contract documents, the Court confirmed that it would have been implied to ensure the disciplinary process was fair.

The Court referred to the Office of the Independent Adjudicator’s Good Practice Framework for Disciplinary Procedures, which states: ‘It is good practice for providers to permit legal representation in complex disciplinary cases, or where the consequences for the student are potentially very serious‘.

This case therefore shows that whilst students do not have an automatic right to legal representation in every case, the particular circumstances of each disciplinary hearing will determine whether or not the student is entitled to legal representation.

We have significant experience at Blake Morgan with advising universities on how to deal with disciplinary investigations and ensuring a fair hearing process. If you require advice, please feel free to contact our education specialists who will be more happy to assist.

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