England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/04/2008

Black J:

1. Richard Carnell (the Claimant) applies for permission to bring proceedings for judicial review of two decisions relating to his conduct as a student at Regents Park College, Oxford University. The first decision in time is that of the Disciplinary Committee of the College which was made following a hearing on 10 May 2006 and conveyed to the Claimant in part by letter of 13 May and in part orally on 15 May 2006. The second is that of the Conference of Colleges Appeal Tribunal which was made on 27 June 2006. The application is opposed by the First Defendant, the Conference of Colleges Appeal Tribunal (CCAT), and the Second Defendant, the College. The Claimant has represented himself in the oral permission hearing before me. Both Defendants have been represented by leading counsel.
2. The judicial review claim form was issued on 27 September 2006. Acknowledgments of Service were filed during October 2006. Mr Justice Collins considered the papers and refused permission on 25 January 2007. It is clear from the observations he set out in refusing permission that there had been a delay for some reason in the court processing the application for which the Claimant had received apologies from the court. The progress of the matter thereafter is not entirely clear from the bundle that has been supplied for this hearing but the application for permission must obviously have been renewed with a view to oral argument and it seems that an oral hearing was scheduled for 22 June 2007. Shortly before that date, the Claimant's public funding certificate was frozen. His solicitors therefore sought an adjournment of the hearing so that he would have sufficient time to prepare to represent himself if necessary. I am not told of any other exceptional hiccups to account for the fact that over six months then elapsed before this oral hearing and have assumed that listing pressures account for this delay.
3. The Claimant was an undergraduate at the College which is one of the smallest in Oxford and has less than 100 undergraduates. Three other male undergraduates (A, J and R) made complaints that the Claimant had harassed them sexually and in other ways. Amongst specific matters alleged were that he made sexual advances to R in the Michaelmas term 2005, that he threatened A on 17 January 2006 in his room and intimidated him and made sexual advances to him on the night of 20/21 January 2006, that he threatened and belittled J in November 2004 and threatened him again in May 2005. It was also alleged that he spread untrue and defamatory comments about the other three undergraduates to other members of the JCR including portraying J as a sexual nuisance to him and potentially to others when in fact he was having or had had consensual sexual relations with him, spreading the story in the Hilary term 2006 that Alex was pestering him to continue a relationship with him and was mixed up and disturbed, and, in the Michaelmas term 2005 and Hilary term 2006, telling people things about R attitude to sexuality which R denied. A further allegation was that he had falsely misrepresented a conversation he had had with the Principal of the College in January 2005, claiming that it was only his pleading with the Principal that prevented James being sent down or required to live out of the College.
4. The College disciplinary committee met initially to consider the charges against the Claimant. The committee was made up of four Fellows and two undergraduates, all from the College, with the chairman of the College's governing body as its chairman. The Principal of the College had investigated the complaints prior to the hearing and was asked by the chairman to be present at the hearing. It is said in the College's Acknowledgment of Service that this was "to assist the Committee, and to ask some questions on its behalf to clarify matters and to ensure that the Committee had all the evidence it needed to come to a right decision". It is clear from the documentation that he did, indeed, ask questions. An assurance has been given that he did not, however, enter into any of the deliberations of the Committee and was not a party to their findings and decisions.
5. The Claimant was excluded from significant parts of the hearing before the Committee. He was given an opportunity to present his own case to them orally as well as in writing and to call his own witnesses but he was not allowed to ask questions of any of the complainants or other witnesses directly and, in particular, was not permitted to cross examine them either personally or through his solicitor. He was provided with written material concerning their evidence in advance and invited to submit his questions to the Committee for them to put on his behalf. The evidence that the complainants and other witnesses had given in the absence of the Claimant was noted and the note provided to him. It appears that this was not done until after the end of the hearing though the Committee did put to the Claimant during the hearing such of the evidence obtained from the complainants and the other witnesses as they considered relevant to their decision.
6. Mr Justice Collins considered that the procedure adopted by the Disciplinary Committee was flawed. He said "Exclusion of the claimant from material parts of the process is difficult to justify and the part played by the Principal is open to criticism". I entirely agree with him. The hearing concerned some quite serious allegations against the Claimant. The College seeks to justify the approach of the Committee by reference to the vulnerability of the complainants and the setting of a small college community but it is undoubtedly arguable that the process adopted failed to comply with the rules of natural justice and that there was a breach of Article 6 ECHR.
7. The CCAT reviewed the process of the Committee. In so far as the role of the Principal was concerned, it was satisfied that there was no actual bias by the Principal but went on to say this:

"28. However, that is not the sole test. The Panel readily accepts that "justice must not only be done, but must be seen to be done." The Panel has been somewhat concerned by the presence of the Principal during the hearing, although there has been no suggestions that his questioning was of other than as claimed above. Given the presence of an outside Chairman, and of junior members, had any questioning been (or appeared to be) in any way improper, this is a matter we consider would have been drawn to our attention (or to the attention of Mr Carnell), not least because there were junior members as part of the Committee, including the JCR President.

29. We accept, of course, that Mr Carnell (and his legal advisor) were not present throughout the hearing, but we consider the presence of an independent Chairman, and junior members, a considerable safeguard in this respect….

30. Applying that test [from Porter v Magill [2002] 2 AC 357], we do not consider that such an observer would conclude that a real possibility or real danger of bias existed."

8. In so far as the procedure adopted was concerned, the CCAT concluded that it was not wrong or improper for the Committee to act as it did or that there had been a breach of natural justice or an unfair hearing.
9. It follows from my view that it is, in fact, arguable that the role of the Principal was questionable and the process of the Committee was materially flawed that it is also arguable that the CCAT reached a wrong conclusion on those issues.
10. The CCAT went on, however, to consider the allegations itself and to reach its own conclusions. Mr Justice Collins' view was that there could be no valid complaint about the way in which that part of the CCAT's task was carried out. The flaws in the Committee's process had therefore been superseded by the proper hearing in front of the CCAT and by its findings that all but one of the allegations against the Claimant were proved. There was therefore no arguable point that could be aired in judicial review proceedings against either the College or the CCAT.
11. The Claimant advances again before me the points that he made in his original Grounds. He also advances an argument that the CCAT had failed to deal properly with the evidence that was before it. He submits, in particular, that it failed to consider the "strong and impressive evidence given by the Claimant's witnesses" to whom it barely alluded and failed to take into account the fact that J had mental health problems and that there was an older history in relation to him and the Claimant. The Defendants complained that these were new matters that had not been included at all in the original Grounds and made their appearance for the first time in the Claimant's skeleton argument for the oral hearing. The nearest that the Claimant's Grounds (which were drafted by counsel) come to this point is at paragraph 40 (g) which says:

"The Claimant submits that the Tribunal failed in giving their judgment to consider the credibility of the complainants. Further the Tribunal failed to make any or any proper reference to the individual complainants when considering the reliability of their evidence. The Claimant submits that such a blanket approach makes the Tribunal's decision unsustainable."

12. I take into account that this was hardly enough to signal the points that the Claimant took in his skeleton argument but I considered it perfectly feasible for leading counsel for both Defendants to reply to those points. Although both complained of the late development and implied that I should not permit argument about the "new" points, when it was clear that I intended to do so, neither sought an adjournment and they addressed the issues substantively.
13. The issues that the CCAT had to determine depended centrally on the credibility of the complainants and the Claimant, as it recognised throughout its decision. The evidence of other witnesses contained some indicators that might assist in determining where the truth lay, although necessarily peripherally as many of the allegations related to events that had taken place when only the Claimant and a single complainant were present. The Claimant produced witness statements from approximately 10 witnesses, the majority of whom gave oral evidence. There is barely any reference in the CCAT's decision to what they said. To some extent their evidence was in general support of the Claimant. They expressed their disbelief that the man they knew well could have acted in the way alleged and said that they had never seen anything of the kind themselves. The CCAT confirms (paragraph 44) that it took this into account, saying "We have taken into account the evidence, both written and oral, speaking highly of his character." Some of the witnesses' evidence was more specific however. For example, it referred to occasions when J had made advances to the Claimant which the Claimant repulsed, to J warning off a girl whom he thought was friendly with the Claimant on the basis that the Claimant was "his", and to occasions when the complainants had been seen enjoying the company of the Claimant in a way that might not be consistent with the allegations though also to rudeness and unkindness on the part of two of the complainants towards the Claimant. There was also specific evidence on other matters, notably about an incident concerning the chapel door which was damaged. These pieces of evidence are not referred to at all by the CCAT although its comment in paragraph 73, in another context, about "other witnesses (whom we also found credible)" (who must have been the Claimant's witnesses) suggests that it had not dismissed these witnesses as unworthy of belief.
14. In addition, there is a complete absence in the CCAT decision of any reference to the older history in relation to J and the Claimant. This, in my view, was potentially a serious matter. The CCAT expressly says that it found a number of the allegations which concerned the Claimant's conduct towards J difficult to determine. The allegations depended principally on the evidence of one young man against the other. It is, in my view, arguable that in reaching its conclusions about these allegations, the CCAT erred in failing to consider the whole picture. In so far as one can tell from the decision, it commenced its consideration with the time of the events upon which the allegations were based. However, in his first term in Oxford, in 2004, the Claimant had complained in College that J had made unwelcome sexual advances to him, culminating in a complaint to the Principal in January 2005. That term, the Principal interviewed J and J admitted the conduct alleged and agreed to accept a written warning from the Principal and separate tuition. In about May 2005, J approached the Principal and alleged that the Claimant had initiated contact with him that he feared might infringe the terms on which he was required to behave as a result of the written warning. He was advised that the contact was permissible. In the Michaelmas term 2005, James attempted suicide. After this, he alleged that the original accusation made by the Claimant had been untrue and that he only accepted the blame and disciplinary action because he felt intimidated by the Claimant and feared he might be sent down. This was when he said for the first time that the Claimant had initiated sexual contact with him in the Trinity term 2005 and they had had relations at the beginning of the Michaelmas term 2005 too. The CCAT undoubtedly did have Js' mental state in mind. It is entirely understandable that it referred to it only in shorthand form, in paragraph 44, as "the unhappy personal circumstances in which J found himself". That phrase does not, however, indicate that it took into account the history of Js' previous admission (and subsequent retraction) in relation to his own harassing of the Claimant as it is strongly arguable, in my view, that it needed to do if it was to arrive at a reliable evaluation of his evidence.
15. Mr Lewis QC on behalf of the CCAT invites attention to the overall assessment of credibility in paragraph 44 of the decision as well as to the examination of credibility issues under the headings of each allegation and submits that, looked at as a whole, the CCAT's treatment of the evidence was perfectly proper and its findings reliable. He certainly demonstrates that, contrary to what is argued in the Claimant's Grounds, the CCAT looked at the three complainants individually in considering the allegations. He does not persuade me, however, that the Claimant's criticism of the CCAT's consideration of Js' credibility without overt reference to the earlier history is without foundation and unarguable as a ground for judicial review. Mr Lewis particularly highlighted paragraph 44 of the decision and submitted that, having seen the complainants and the Claimant, the CCAT was entitled to take the view it did of their respective reliability. Clearly, the CCAT's evaluation of the evidence of each of these witnesses was bound to be very significant in its conclusions on credibility but it is not normally a proper approach to evaluate evidence in a vacuum without taking into account anything else of relevance to the issue that is known from other sources. This can include material which might demonstrate whether a witness has told the truth on a side issue such as the damage to the chapel door about which there was a dispute and in relation to which one of the Claimant's witnesses, L, gave an account which was contrary to that which Alex gave (see notes of evidence from the Committee hearing at page 6). It should also include material which might cast doubt on the allegations such as evidence of friendly relations between the parties (to which the CCAT did refer ) or evidence such as that of L that one or more of the complainants had taken a dominant role towards the Claimant rather than vice versa.
16. The concern that I have about the CCAT's approach to the Claimant's witnesses and to credibility generally is not assisted by this passage in paragraph 44:

"….having seen him [the Claimant] give evidence, where there is a conflict between his evidence and those of the complainants, we accept the evidence of the complainants, unless there is other material which persuades us that the College has not satisfied the burden of proof that is on it to prove the cases against Mr Carnell to the appropriate level."

17. In the light of these factors, it seems to me that in relation to the CCAT's treatment of the Claimant's witnesses and the history relating to J, there is an arguable case that a ground for judicial review exists which would justify the granting of permission so that there could be a full investigation at an oral hearing with all the material evidence. In so saying, I stress that I am not indicating more than this and I would not wish to forecast what the outcome of such a judicial review would be. In particular, I am conscious that the bundle with which I was supplied was not a complete record of the proceedings below and, as counsel for the 2^nd Defendants pointed out, notably did not contain the statements of the witnesses who were relied upon by the College.
18. I agree with Mr Justice Collins' analysis of the other proposed grounds for judicial review. Whatever the advisability of the CCAT commencing its proceedings with a review of the Committee's procedure, there is no evidence that it was actually influenced in its own fact finding exercise by the conclusions of the Committee. It carried out a hearing de novo without bias and, in contrast to the Committee, adopted a proper and open procedure. Fortunately, there is no evidence at all that the CCAT was persuaded to take the approach commended to it by Mr Bishop QC on behalf of the College of attaching considerable weight to the findings of the Committee which would, in my judgment, have been a significant mistake.
19. The Claimant advanced for the first time in his skeleton argument for the oral hearing that the appropriate standard of proof for the CCAT was the criminal standard but he did not pursue that in argument. It follows that I proceed upon the basis that the CCAT was correct in adopting the civil standard which they very properly understood in the light of Re H. I have recited above a passage that gave me concern specifically in relation to their evaluation of credibility but there is no other evidence that they failed to follow their own proper direction about the burden and standard of proof.
20. As to the Claimant's complaint that he was not permitted to cross examine A about an e-mail from him that he had found between the first day of the hearing and the hearing resuming on 19 June 2006, I share Mr Justice Collins' view that the CCAT's decision not to permit A to be recalled was within its discretion. I accept that the Claimant had genuinely not found the e-mail earlier and would have produced it if he had done but the fact remains that it was available to him in his own inbox and the CCAT was entitled to consider that it could have been found by him earlier. The procedure adopted by the CCAT of seeking comments from A on the e-mail was not wrong and it did take the e-mail into account in evaluating the case and explained its resulting views in its decision.
21. The real difficulty faced by the Claimant in his request for permission is that of the existence of an alternative remedy to judicial review.
22. By virtue of the Higher Education Act 2004, a scheme was established by the Office of the Independent Adjudicator for Higher Education (OIA) for dealing with student complaints about acts and omissions of higher education institutions. When a complaint is submitted, the OIA reviews it to decide whether it is justified in whole or in part. The review is normally a review of the documentation and other information but an oral hearing can be held if necessary. The reviewer normally issues a Formal Decision and may make Recommendations that the institution do something or refrain from doing something. The reviewer can, amongst other things, recommend that the complaint be referred back to the institution for a fresh determination. The OIA rules state:

"7.5 The OIA expects the HEI to comply with the Formal Decision and any accompanying Recommendations in full, and in a prompt manner.

7.6 Where Recommendations require the HEI to take a particular course of action it should do so within the time scale stipulated or, where no time scale is indicated, as soon as is reasonably practicable. The HEI shall, if requested, report to the Reviewer on such compliance.

7.7 Any non-compliance by an HEI with a Recommendation will be reported to the Board and publicised in the Annual Report."

23. The OIA rules accommodate a wide range of complaints and there is no reason to suppose that the subject matter of the Claimant's complaint about the disciplinary procedures he has sought to review in this court in relation to both the Committee and the CCAT would normally be excluded. The Claimant was informed about the existence of the OIA in writing on 3 July 2006, following the decision of the CCAT. Later, on 14 September 2006, in its letter in reply to the Claimant's letter before claim, the CCAT recorded its view that the Claimant should have recourse to the OIA saying:

"The literature provided by the OIA….indicates that it assumes that any order made by it will be complied with by the qualifying institution (in this case Regents Park College) and that any non-compliance would very likely be the subject of adverse public comment. There was thus an effective remedy available to the Claimant which he has not chosen to use."

On 15 September 2006, the College also replied submitting that an "appeal to the OIA" should have been used.

24. The Claimant submits, however, that the OIA is not and has never been an effective remedy in this case. He points out that the decision of the OIA would not be legally binding on the College or the CCAT. Bearing that in mind, and bearing in mind that he hoped for a quicker resolution through judicial review proceedings than via the OIA which it was said may take around 6 months, the Claimant, advised he says by counsel, determined on judicial review proceedings. He submits that the College only informed his solicitors that they would be bound by the determination of the OIA after he had begun the judicial review proceedings and that the CCAT never made that clear. The College indicated in its Response to the Judicial Review application (undated but presumably of even date to the Acknowledgment of Service which was filed on 24 October 2006) that "the College willingly and freely binds itself to implement the recommendations of the OIA, and has never indicated otherwise." The CCAT said in its Summary Grounds of Defence dated 24 October 2006 that "The rules of the OIA make it clear that it expects institutions to comply with recommendations and non-compliance will be publicised….In practice, it is understood that recommendations are complied with and, in this case, the College has made it clear that it will comply with any recommendation." The Claimant identifies a letter of the CCAT's solicitors of 22 February 2007. This letter says:

"In a number of recent documents you have referred to the agreement of both the College and the Conference of Colleges' Appeal Tribunal to be bound by any recommendation of the OIA. It is important that we make clear that the Conference has never expressed any such intention. Of course, the Conference will consider any recommendation by the OIA, and may follow it.

We imagine that this is largely academic because these were College disciplinary proceedings. Therefore any recommendation by the OIA is likely to be to the College. Whilst we think it idle to speculate much upon circumstances involving a recommendation by the OIA to the Conference. [sic] There is one we imagine you may wish to have regard to with your client: namely a recommendation that the finding of the Conference be revoked by the Conference, as distinct from a recommendation that the College disregard the finding of the Conference.

There is no guarantee that any such recommendation would be accepted. Therefore, whatever the response of the College, the Conference finding might still stand in some form."

This was an unhelpful letter, it seems to me. However, the important point was that from 24 October 2006 at the latest, it was clear that the College itself was expressly agreeing to implement the recommendations of the OIA. Had the OIA found fault with the College and the CCAT determination and recommended a fresh determination, the reality is that the College would therefore have had to arrange for such a fresh determination. It is difficult to see how in those circumstances, the CCAT, as an adjunct of the College's procedure, would have had any standing to insist upon its own findings remaining. Had the College or the CCAT decided that they proposed to continue to rely on findings that had been arrived at in a procedure that the OIA had found to be flawed or refused to facilitate a fresh determination which had been recommended, judicial review of their decisions would have been available. Accordingly, I cannot accept the Claimant's submission that the OIA procedure was not an effective remedy on the basis that it was not binding.

25. I do not accept that the Claimant was entitled to decline to use the OIA procedure on the grounds of speed either. Judicial review was not likely to be any quicker than the OIA procedure. It might have been expected to come to fruition rather quicker than it has but the pressures on listing in the Administrative Court are well known and a delay in achieving a hearing in a case of this type was always to be anticipated.
26. It is not surprising therefore that Mr Justice Collins indicated that he thought the Claimant was wrong to assume that the OIA could not provide a satisfactory alternative remedy and that, since judicial review is a remedy of last resort, that route should have been chosen.
27. Mr Justice Collins plainly contemplated that upon receipt of his decision, the Claimant might take the matter to the OIA. By then, his complaint would have been out of time so the judge indicated that there had been a delay in the Administrative Court dealing with the case and asked that any application he made to the OIA for consideration out of time should be looked on sympathetically.
28. The Claimant presented a complaint to the OIA accordingly. The OIA waived the normal time limit of three months from the exhaustion of the internal complaints procedure. However, it nevertheless refused to review the complaint. This was because of rule 3.3 of the Scheme rules which provided:

"The Scheme does not cover a complaint to the extent that:

….

(3) the matter is or becomes the subject of court or tribunal proceedings which have not been stayed or was subject to such proceedings and those proceedings have been concluded otherwise than by being withdrawn or discontinued;"

29. The OIA observed that the judicial review proceedings had been neither withdrawn nor discontinued. They had been terminated by Mr Justice Collins' ruling. The complaint was therefore caught by rule 3(3) and could not be entertained. If it were, the OIA would be being asked to disagree with Mr Justice Collins and it indicated that it did not consider it would be appropriate to challenge the findings of a High Court judge.
30. Accordingly the position now is that the Claimant had an effective alternative remedy but no longer has. How should the discretion to grant permission for judicial review be exercised in these circumstances?
31. It is well established that permission should not normally be granted where an adequate alternative remedy exists. The authorities quoted in the White Book for this are R v Chief Constable of Merside Police Ex p. Calveley [1986] QB 424, R v Secretary of State for the Home Department Ex p. Swati [1986] 1 WLR 477 and R (on the application of G) v Immigration Appeal Tribunal [2005] 1 WLR 1445. Permission may, however, be granted where there are exceptional circumstances or where the alternative remedy is not adequate or there is some other reason which makes judicial review particularly appropriate. I sought assistance from counsel as to authorities which dealt with the issue of an alternative remedy in circumstances where the remedy had become unavailable by the time the judicial review permission application was heard. They invited my attention to two cases about the availability of alternative remedies, R v Birmingham City Council, ex parte Ferrero Ltd [1993] 1 All ER 530 and R v Brentford General Commissioners, ex parte Chan and others [1986] STC 65, neither of which addressed themselves to this precise point. The Ferrero case emphasises the presumption against judicial review where an alternative remedy exists but does not expressly deal with the situation where the remedy is no longer available when the question of permission is considered. In that case, as one can see from p 540e, the claimants had in fact lodged an appeal pursuant to their statutory rights and had withdrawn it in the light of their success on judicial review and by the time the Court of Appeal considered the matter and held that it had been wrong to permit judicial review, the whole question was academic because the suspension notice to which the proceedings related had long since terminated. As far as I can see, the Chan case is not an example of a no longer extant remedy either. However, it does contain a consideration of what might be exceptional circumstances in which judicial review could be permitted despite the existence of an alternative remedy and a helpful practical passage which contains a warning that is relevant also in this case. Taylor J, as he then was, said:

"It may be tempting to succumb to the approach, well, the case is here now, why not deal with it rather than divert it onto another route which will bring it before another judge in the same building but much later? That would especially be so where the court's initial reaction was to feel that there was substance in the applicants' complaint. But to do so would be contrary to the principles I have earlier stated. It would, in effect, license applicants to achieve judicial review by simply arriving here and relying on the inconvenience and delay of their being redirected. It would clog the already swelling lists of properly brought cases for judicial review."

32. The Defendants submitted that the fact that the remedy is no longer available is the Claimant's own fault and irrelevant. They pointed out that if it were to be a material consideration, a claimant could obtain permission to seek judicial review in a case in which an alternative remedy existed which was perfectly good but not what he would choose simply by waiting until the time limits for that remedy expired and then launching his judicial review claim. This would destroy the important principle that judicial review is a remedy of last resort where no alternative remedies are available to the claimant. In a variant of the mischief contemplated by Taylor J, it would license claimants to make use of delay to bring themselves within the scope of judicial review when they would otherwise have been confined to their statutory or other alternative remedy.
33. I have considered the question of the OIA very carefully. The fact that the OIA complaints procedure is no longer available is by virtue of the Claimant choosing not to pursue it initially and then maintaining that course following receipt the Acknowledgments of Service of the other parties. He would have been within the rules of the OIA scheme had he abandoned his judicial review proceedings at that stage and submitted his claim to the OIA with a request for it to be entertained out of time. The circumstances of this case are not, in my judgment, exceptional in such a way as to justify me exercising my discretion to grant permission for judicial review when that original remedy would have been available to the Claimant had he made different choices.
34. For the sake of completeness, I should indicate that had I decided differently on the issue of the alternative remedy, I would not have limited my grant of permission to the question of the way in which the Claimant's witnesses and Js' history were dealt with by the CCAT but would have allowed him to rely upon the full range of his grounds in relation to the CCAT and the College. To do otherwise would have hampered the judge hearing the judicial review proceedings who would have needed to look at the question of fairness overall.
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