Case Summaries

Student A was accused by student B of sexual misconduct. Student B alleged that student A had strangled her without her consent during sex and had been verbally and physically abusive toward her. Student A was suspended as a precautionary measure and the allegations were considered under the provider’s disciplinary procedures. Following an initial investigation, a report was produced detailing 15 potential breaches of the provider’s Student Code of Conduct for the disciplinary panel to consider. Student A had decided to be legally represented during the process and his representative raised concerns about the initial report. The report was referred to a new investigating officer and an amended report was produced which identified five alleged breaches for the panel to consider.

The panel dismissed one allegation but four of the allegations were upheld in whole or in part. The panel decided to suspend the student for two years. Student A appealed the disciplinary outcome and penalty on the grounds that the procedures hadn’t been followed, the decision was unreasonable, and there was bias during the process. The provider upheld the student’s appeal in relation to one allegation but dismissed it in relation to the three remaining allegations. It upheld the penalty applied by the disciplinary panel.

The student complained to us. This was a complex case with lots of different strands of complaint that overlapped with the issues raised within the appeal. We did not uphold the student’s complaint (we decided it was Not Justified).

We concluded the provider had taken the representative’s concerns about the initial report seriously and had already taken reasonable steps to address them before the disciplinary panel reached a decision.

Student A felt that the provider’s decision not to take forward several of the allegations showed that student B was not a credible witness. We concluded it was reasonable for the provider not to uphold this part of the appeal. Deciding not to take an allegation forward because there wasn’t evidence to support it doesn’t necessarily imply the reporting student had been untruthful. The provider’s procedures required the disciplinary panel to make decisions on the balance of probabilities, but the decisions still needed to be supported by evidence. The panel had considered each allegation separately on its own merits, with reference to all the relevant evidence. We decided that approach was reasonable.

Student A’s legal representative had commissioned a forensic report from an expert witness. Student A complained to us that the expert witness and the panel had come to different conclusions using the same evidence. Both student A and student B agreed that strangulation had taken place during sex, but the question for the panel to consider was whether it was consensual. In addition to considering the visual evidence the expert witness had looked at, the panel also heard evidence from student B during the hearing. We decided it was reasonable for the provider to have concluded that the expert witness couldn’t say from the visual evidence alone whether student B had consented, and that it was reasonable for the panel to have made its own decision on this point. The panel had considered a range of different evidence and statements when making its decision, including evidence from character witnesses in support of student A. It had clearly explained how the various evidence had been taken into account and weighted when making its decision.

Student A also complained that the Chair of the panel was biased. For example, he said the Chair had prevented his representative from fully questioning student B. Given the complexity of the case, it was good practice for the provider to have allowed the student to be legally represented. But we considered it was appropriate for it to have decided that questions still needed to be managed via the Chair.

We acknowledged that student A may have found one of the Chair’s comments upsetting, but none of the information or evidence we reviewed supported a reasonable perception that the Chair or the provider’s procedures in general had been biased. We concluded that the provider had followed its procedures and acted reasonably when considering the allegations against student A and that the disciplinary outcome and its final decision on the student’s appeal was reasonable in the circumstances.

The provider’s procedures contained a range of penalties for this kind of misconduct. The panel did not apply the most severe penalty. The panel had reasonably taken into account mitigation put forward by student A when deciding on which penalty to apply. Because the allegation that was dismissed at the appeal stage was a lower-level offence than the three that had been upheld, the provider had decided to uphold the penalty applied by the disciplinary panel. We concluded that decision was reasonable.