The King on the application of KT v Office of the Independent Adjudicator

Hearing dates: 20 th and 27 th June 2024

Jonathan Moffett KC, sitting as a Deputy High Court Judge:

A. INTRODUCTION

This claim for judicial review arises out of a complaint (“the complaint”) made by the Claimant to the Defendant (“the OIA”) about the Interested Party (“the University”).

At the outset, it is important to note that, as I explain below, there is an anonymity order in place in relation to the Claimant. Accordingly, there must be no reporting of the Claimant's identity, or of any other information that may lead to his identification.

In brief, the Claimant was a student at the University. Various disciplinary allegations were made against him, and they were upheld by the University's Student Disciplinary Committee (“the SDC”). The SDC decided that the Claimant should be expelled from the University. An appeal by the Claimant to the University's Student Appeals Committee (“the SAC”) was dismissed, and the Claimant subsequently made the complaint to the OIA.

On 2 November 2023, the OIA decided that the complaint was partly justified (“the outcome decision”), and set out proposed recommendations as to the steps that the University should take in order to provide redress to the Claimant (“the proposed recommendations”). Having considered representations from the Claimant and the University on the proposed recommendations, on 30 November 2023 the OIA issued its final recommendations (“the final recommendations”). Those final recommendations differed from the proposed recommendations in material respects.

In broad terms, the Claimant's claim for judicial review concerns four main elements of the OIA's decision-making. First, the Claimant argues that the outcome decision did not properly grapple with one of his grounds of complaint, which related to whether the SDC had been properly constituted. As I explain below, there is a dispute between the parties as to whether it is properly open to the Claimant to advance this aspect of his challenge. Secondly, the Claimant argues that a decision taken by the OIA on 30 November 2023 not to continue its consideration of that part of his complaint which related to whether the SDC had been properly constituted (“the continuation decision”) was unlawful. Again, there is a dispute between the parties as to whether the Claimant should be permitted to challenge the continuation decision. Thirdly, the Claimant argues that the process by which the OIA decided on the final recommendations was procedurally unfair, because he was not afforded an opportunity to comment on the University's representations on the proposed recommendations. Fourthly, the Claimant argues that the final recommendations did not properly reflect the outcome decision, and that the OIA failed to give adequate reasons for the final recommendations.

Permission to apply for judicial review was granted by Hugh Southey KC, sitting as a Deputy High Court Judge, on 8 May 2024.

Before me, the Claimant was represented by Mr David Lawson, and the Defendant was represented by Ms Siân McGibbon. I am grateful to both counsel for the assistance that they gave me. The University filed an acknowledgment of service indicating that it did not intend to contest the claim, and it was not represented at the substantive hearing.

Given the length of this judgment, it may be of assistance to the reader if I provide an index to the topics that I cover:

A. Introduction: paragraphs 1–8

B. Procedural matters: paragraphs 9–15

C. The OIA: paragraphs 16–35

D. The relevant factual background

(1) The Claimant: paragraphs 36–37

(2) The University's decisions on the allegations against the Claimant: paragraphs 38–55

(3) The Claimant's complaint to the OIA: paragraphs 56–93

E. The claim for judicial review and the OIA's response: paragraphs 94–104

F. The first challenge: the outcome decision

(1) A threshold issue: is it open to the Claimant to advance the first challenge: paragraphs 105–133

(2) The second application to amend: a direct challenge to the outcome decision: paragraphs 134–157

(3) The first application to amend: a challenge to the continuation decision: paragraphs 158–170

(4) Conclusion on the first challenge: paragraph 171

G. The second challenge: procedural fairness: paragraphs 172–175

H. The third challenge: the final recommendations

(1) The meaning and effect of the final recommendations: paragraphs 177–186

(2) Did the final recommendations properly reflect the outcome decision: paragraphs 187–197

(3) Did the OIA commit a substantive error of law in changing the proposed recommendations: paragraphs 198–208

(4) Did the OIA give adequate reasons for changing the proposed recommendations: paragraphs 209–214

(5) Did the OIA act fairly when changing the proposed recommendations: paragraphs 215–230

(6) Did the unfairness make any difference to the outcome: paragraphs 231–244

(7) Conclusion on the third challenge: paragraph 245

I. Summary and final order: paragraphs 246–257

B. PROCEDURAL MATTERS

At the substantive hearing there were four procedural applications that required determination.

First, the Claimant sought to extend an order for anonymity that was made by Mr Southey KC when he granted permission to apply for judicial review. Mr Southey KC's order provided that the Claimant be referred to by the letters “KT”; that there be no reporting of the Claimant's name and address, or of any other information that may lead to the identification of the Claimant; and that documents from the court file may be released only if they had been anonymised. The order was expressed to apply only until the substantive hearing. In his reasons, Mr Southey KC explained that he was not certain that an anonymity order was justified because, although the Claimant faces criminal allegations, such allegations are often reported and, although there is some reference in the documentation to the Claimant's mental health issues, they were of limited significance and not particularly serious. Accordingly, Mr Southey KC was persuaded only that it was appropriate to grant a time-limited anonymity order, so that the issue could be considered in greater detail at the substantive hearing.

Mr Lawson relied on two main matters in support of the application for anonymity. First, he relied on the fact that the evidence refers to personal and sensitive health issues from which the Claimant has suffered, including mental health issues involving a risk of self-harm and detention under s 136 of the Mental Health Act 1983. These were matters to which Mr Lawson had referred to in his skeleton argument, and to which he subsequently referred in his oral submissions. Mr Lawson said that any reporting of these matters which identified the Claimant would constitute an intrusion into the Claimant's private life. Secondly, Mr Lawson pointed out that, given the issues to which the claim gives rise, it was almost inevitable that my judgment would have to refer to the facts that the Claimant had been arrested on suspicion of having committed a criminal offence and that he was currently on bail, and it was likely that my judgment would remain permanently accessible to the public, even if in due course the criminal matter against the Claimant were not pursued. In light of the fact that the Claimant is a law student, and in due course he may wish to pursue a career in the law, Mr Lawson said that a permanent public record of these matters could harm the Claimant in the future, particularly if he were to seek employment in the legal sector. The OIA was neutral on the application for anonymity.

I was conscious of the fact that an extension of Mr Southey KC's order would constitute a departure from the important constitutional principle of open justice, and the general rule that the parties to a claim should be named in any judgment on that claim. As such, I did not accept Mr Lawson's submission that the extension of Mr Southey KC's order would constitute only a low level of interference with open justice. Nevertheless, I was persuaded that the non-disclosure of the Claimant's identity was necessary in order to secure the proper administration of justice and in order to protect the Claimant's interests. In particular, although I considered that, if it were necessary for me to refer to the Claimant's health issues in my judgment, it was likely that I would be able to do so only obliquely, it was very unlikely that I would be able to avoid referring to the Claimant's arrest and bail conditions. I considered that these matters were an aspect of the Claimant's private life, and that for the reasons given by Mr Lawson, publication of them, if permanently linked to the Claimant, could have a significant adverse impact on the Claimant in future. As a result, I considered that the important principle of open justice was outweighed by the need to protect the Claimant's interests. Accordingly, pursuant to s 11 of the Contempt of Court Act 1981 and CPR 39.2(4), at the outset of the hearing I ordered that the Claimant continue to be referred to by the initials “KT”, and that there be no reporting of the Claimant's identity, or of any other information that may lead to him being identified.

However, it seemed to me that the Claimant's interests could be adequately protected by an anonymity order alone; I did not consider that an extension of Mr Southey KC's order in relation to court...