R (on the application of Ngole) v University of Sheffield Health and Care Professions Council (Intervener)
| Jurisdiction | England & Wales |
| Judge | Ms Rowena Collins Rice |
| Judgment Date | 27 October 2017 |
| Neutral Citation | [2017] EWHC 2669 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 October 2017 |
| Docket Number | Case No: CO/3456/2016 |
[2017] EWHC 2669 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rowena Collins Rice
(Sitting as a Deputy High Court Judge)
Case No: CO/3456/2016
Mr Paul Diamond (instructed on a direct access basis) for the Claimant
Ms Sarah Hannett (instructed by Pinsent Masons LLP) for the Defendant
Mr Tom Tabori (instructed by Bircham Dyson Bell LLP) for the Intervener
Hearing dates: 3 and 4 October 2017
Approved Judgment
Introduction
The claimant, a former student, brings these judicial review proceedings to challenge the decision of his university to remove him from his course.
He asks the court to review a series of events involving a number of broad issues of public policy: the conscientious objection of some Christians to same-sex sexual relations (or 'homosexual practice'), the importance of freedom of expression in a democratic society, the reciprocal rights and responsibilities of universities and their students, and the nature and regulation of the social work profession.
The court's task is to consider these general matters of public interest in a very particular way. It must identify the specifically legal principles capable of answering the claimant's question about whether the university acted lawfully. And it must apply those principles with care and fairness to the detail of the facts of the present case.
Factual background
The claimant, Mr Felix Ngole, enrolled as a mature student on Sheffield University's MA Social Work course in September 2014. This was a two-year course leading, on successful completion, to registration and practice as a qualified social worker. It was not a purely academic course.
Mr Ngole is a sincere and practising Christian who takes the Bible to be the full and authoritative word of God; he says he relies on it for instruction in all matters.
In September 2015, at the beginning of his second year, there was an internationally prominent news story about the release from jail of Kim Davis, an American registrar who had been imprisoned in the USA after Christian conscientious refusal to administer same-sex marriages. The coverage of the story on the American NBC news website gave an opportunity for the public to post comment on it. Mr Ngole did so from his personal Facebook account ('the NBC postings').
His first post was to the effect that same-sex marriage was a sin. Challenged by another poster to demonstrate that the Bible said so, he responded by citing a number of Biblical passages. The public website conversation continued at some length, with a number of contributors, and Mr Ngole contributed around twenty or so very short posts before withdrawing from it. Among the posts was a reference to same-sex marriage as detestable to God; an observation that Homosexuality is a sin, no matter how you want to dress it up; a post including the devil has hijacked the constitution of the USA. This is a country that was built on the values of Christianity. Now it's worse than a country worshipping idols; quotations from the Biblical book of Leviticus describing same-sex sexual relations as an abomination; other Biblical quotations on the subject; general references to the Bible as condemning 'homosexuality'; an observation that It is a wicked act and God hates the act; God hates sin and not man; and an observation that He will also judge all those who indulged in all forms of wicked act such as homosexuality.
These posts were drawn to the attention of the Sheffield University ('the University') authorities, who initiated an investigation by Mr Ngole's faculty, the Department of Sociological Studies. The departmental investigating team held a meeting with Mr Ngole on 11 November 2015. He was accompanied by a Christian friend. He agreed that he had made the posts, and that they represented his views. He was challenged to explain their compatibility with the professional standards that applied to him as a student on a social work course leading to professional registration. He sought to explain their religious and theological meaning. He said that he had demonstrated in practice that his beliefs were compatible with being supportive and non-discriminatory towards LGBT people. The investigatory team accepted that Mr Ngole was fully entitled to his religious beliefs, and had behaved with honesty and integrity. But they had concerns about the condemnation of same-sex sexual relations, or 'homosexuality', in the terms used, on a public forum to which people including social work service users could link him by name. They said that no conclusion was being reached at that point, and that they would reflect on the matter and consider whether to raise a formal fitness to practise ('FTP') concern.
The departmental team did conclude that there were areas of FTP concern, and Mr Ngole was informed on 10 December 2015 that his case was being referred to a faculty Fitness to Practice Committee Panel ('the FTP Panel'). The FTP Panel considered his case at an oral hearing on 26 January 2016. Mr Ngole attended with a Christian friend and made oral and written submissions.
The FTP Panel issued a decision letter on 3 February 2016. It said that the Panel members had expressed serious concerns about the level of insight he had demonstrated in relation to the postings. The FTP Panel took issue with the postings not on the grounds of his views but because he had posted them publicly in a way that would have an effect on his ability to do the job of a social worker. The Panel considered this was an extremely poor judgment on your part and had transgressed boundaries which are not deemed appropriate for someone entering the Social Work profession. It was their belief that this may have caused offence to some individuals. The FTP Panel concluded that there had been a serious breach of two professional requirements: to keep high standards of personal conduct and to make sure your behaviour does not damage public confidence in your profession. It noted that Mr Ngole had given no evidence that he would refrain from presenting his views in the same way in future. It recorded that it had given serious consideration to all options open to it, but had concluded that Mr Ngole should be excluded from further study on the programme leading to a professional qualification. He would be permitted to enrol on an alternative programme, not leading to professional qualification.
Mr Ngole appealed that decision, by a letter of 23 February 2016, as being manifestly unreasonable. His grounds included an objection that he was in effect being sanctioned for the lawful expression of orthodox religious views on sexual ethics and sin, outside a work context and despite their having no impact on his work and professional abilities. His grounds also included a challenge to being withdrawn from the course rather than being given a warning and further guidance.
An appeal hearing before the Appeals Committee of the University of Sheffield Senate ('the Appeals Committee') was held on 23 March 2016. Mr Ngole attended with a representative, Pastor Ade Omooba, and made representations. By a letter of 31 March, the Appeals Committee confirmed that it rejected his appeal. It recorded:
"Members accepted these to be public posts that appear to contain not only direct quotes but also your own personal views. The Appeals Committee were satisfied that the Faculty FTP Committee had been correct to determine that publicly submitting these posts had been inappropriate in the context of the professional standards set out in the HCPC's code of conduct. In coming to this view, the Appeals Committee were particularly conscious of the fact that you are a student on a Masters level programme that leads to a professional qualification which involves dealing with members of the public. In addition, the Appeals Committee observed that throughout the FTP process (from the initial departmental investigation meeting to the Appeal hearing) you had failed to acknowledge the potential impact of your actions. You have not offered any insight or reflection on how your actions and public postings on social media may have negatively affected the public's view of the social work profession. Furthermore, you did not (in the context of comments posted on social media) appear to acknowledge or respect the relevance of the HCPC's code of conduct regarding professional behaviours and standards. …"
On the question of sanction, it recorded:
"Members also took full account of all the powers open to them under the University's FTP Regulations and specifically whether it would have been reasonable for the Faculty FTP Committee to permit you to continue on your programme of study but with conditions in place, for example the appropriateness of issuing a warning or requiring a written undertaking from you. The fact that you had failed to take appropriate responsibility for, or show any insight into, the potential impact of your postings on social media and that you had no willingness to reflect on your actions in the context of the standards of behaviour required by the HCPC meant that, on balance, the Appeals Committee was satisfied that the Faculty FTP Committee's decision was proportionate."
It is this decision by the Appeals Committee which is the subject of the present judicial review challenge.
Mr Ngole had meanwhile made a complaint to the Office of the Independent Adjudicator for Higher Education ('the OIA'). The OIA was established under the Higher Education Act 2014 to offer an expert but informal, non-binding, resolution or review procedure for disputes between higher education...
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HA v University of Wolverhampton
...say so, the point was well made by Ms Rowena Collins Rice sitting as a Deputy High Court judge in R (Ngole v University of Sheffield (Health and Care Professions Council intervening) [2017] EWHC 2669 (Admin). In that case Mr Ngole was training to be a social worker at Sheffield University. ......