Comments
Audi alteram partem meaning, literally, hear the other side (I am sure they saw the other side) . However the Injunction was not granted because “the plaintiff had suffered no injustice”. There must be a serious question to be tried….
CHANCERY DIVISION
Glynn vs. Keele University and another
[1971] 2 All ER 89, [1971] 1 WLR 187
Natural justice - No opportunity given to student to be heard. Injunction - Injunction to restrain breach of rules of natural justice. Refusal of injunction.
Held
The powers of the vice-chancellor under s 6(4) of the statutes to suspend a student were so fundamental to the position of a student in the university that they could not be regarded merely as a matter of internal discipline; accordingly the vice-chancellor was acting in a quasi-judicial capacity when he exercised them; so acting he had not complied with the rules of natural justice in that he did not give the plaintiff a chance of being heard before he reached his decision on the infliction of a penalty.
However, the plaintiff had suffered no injustice; it was not disputed that he had been involved in the incident of 19th June, the offence was one which merited a severe penalty and the penalty imposed by the vice-chancellor was an intrinsically proper one; the fact that the plaintiff had merely been deprived of a right to make a plea in mitigation was insufficient to justify setting aside the decision; accordingly an injunction would be refused
INTRODUCTION
Motion. By notice of motion the plaintiff, Simon Vincent Glynn, sought, inter alia, an injunction against the University of Keele and William Alexander Campbell Stewart, the vice-chancellor of the university, restraining them from excluding the plaintiff from residence on the campus of the university for the remainder of the academic year 1970-71 and from impeding in any save a lawful was any application which the plaintiff might make for residence. The facts are set out in the judgment.
JUDGMENT BY PENNYCUICK V-C
In this action the plaintiff is Mr Simon Vincent Glynn who is a last year undergraduate at the University of Keele. The first defendant is the University of Keele itself; the second defendant is Mr William Alexander Campbell Stewart, who is the vice-chancellor of that university. I have before me a notice of motion whereby the plaintiff seeks an injunction restraining the defendants from excluding the plaintiff from residence on the campus of the university for the remainder of the current accademic year.
The present action, including the motion, arises from an incident on 19th June 1970; on that day a number of undergraduates of the university were standing or sitting naked on the campus of the university, and that incident gave rise to a great deal of trouble, as one would expect. In the present action there was no formal admission by the plaintiff that he was one of the undergraduates concerned; there is, however, evidence of identification, and there is nowhere in his affidavits, or in the speeches of counsel for him, any real suggestion that he was not one of the naked undergraduates on that occasion. I must plainly proceed to deal with this motion on the footing that he was in fact involved in this incident; in other words no issue of identification is raised. The sequence of events is set out by the vice-chancellor [the second defendant] in para 3 of an affidavit sworn by him on this motion, in which he states:
'On my return to Keele on the evening of the 19th June 1970, I received information that certain students had appeared naked in the area of the Students' Union on that day, causing offence to many members and employees of the University, and residents on the campus. I thereupon proceeded with an investigation into the affair, and by the 29th and 30th June 1970 I had received clear and reliable evidence that the incident had indeed occurred and that the offenders included the Plaintiff and certain students due to graduate on the 1st July. Term ended on the 30th June and the Graduation Ceremony was on the 1st July. If a Disciplinary Panel had been convened it could not have met until after the end of term, by which time the graduation students would no longer have been within the disciplinary jurisdiction of the University. In any case if I had invited those against whom the evidence was available to visit me and make any representation it was clear to me that few if any would have been able to come. To expedite the decision and to enable that decision to treat all involved on an equality whether graduating students or not I decided to exercise my disciplinary jurisdiction and to give to the students involved an opportunity to appeal to the Council. The Council was due to hold a meeting on 7th July 1970 at which meeting they could appoint a committee to hear any appeals which might have been lodged. I deliberately limited my punishment to that which may be recommended and inflicted by the Disciplinary Panel under Regulation XXX. Accordingly I wrote the letter to the plaintiff dated 1st July 1970.'
I will refer in a few minutes to the statutes, ordinances and regulations which govern the university. The letter dated 1st July referred to by the vice-chancellor is in these terms:
'Dear Mr. Glynn, You have been identified as having appeared naked in the area of the Students' Union on the 19th, 1970. This incident has offended many members and employees of the University and residents on the campus. It has also offended many people outside the University both locally and nationally. You cannot have been ignorant of the likely consequences of your action. Following upon the general responsibility of the Vice-Chancellor to the Council under Section 6 (3) of the Statutes for the efficiency and good order or the University, I shall report to the Council at its meeting on the 7th July that you have been fined £10 and excluded from residence in any residential accommodation on the University campus from today's date and for the whole of the session of 1970/1. I shall also report that the fine must be paid by the 1st October 1970, or you will not be readmitted to the University at the beginning of next term. If you wish to address any grievance in connection with the above to the Council under Section 19 (24) of the Statutes, you shouls send it in writing to the Registrar to reach him not later than Tuesday, 7th July.'
The plaintiff wrote a long letter to the registrar of the university for the attention of the council on 3rd July 1970. In that letter he stated that he wished to appeal against the decision of the vice-chancellor. That letter should be read in full:
'I wish to appeal against the decision of the Vice-Chancellor under Section 19 (24) of the statutes. I have received a letter from the Vice-Chancellor, in which he informs me that I "have" been identified as having appeared naked... I "have" been fined £10, and I "have" been excluded from campus residence for next year. All this has been done without any representation by myself or on my behalf, and hence I have not even had the opportunity to defend myself which is afforded to those accused of breaking the law of the land. Whilst the Vice-Chancellor may be acting within the letter of his statutory powers (which incidentally he assured the Parliamentary Commission he would never use), I do not feel that he has acted within the spirit of the Statutes, for I do not believe that any Government would ratify statutes that they believed would be used to entail [sic] the freedom of defence, or the freedom to plead mitigating circumstances, which are extended to subjects under the law of the land.
Furthermore, with all due respect, I do not believe that this, my representation in writing to the Council, (after the decision to punish has already been taken by the Vice-Chancellor), can in any way be truly described as a chance to defend myself, as I am not present to answer queries which may arise and any representation on my behalf at this late stage in the proceedings can only be retrospective in spirit. The section of the statute invoked by the Vice-Chancellor is section 6 (3), under which he is responsible to council for the efficiency and good order of the University. It cannot be denied that the threatened withdrawal of £20,000 from the University impinges upon its good order and efficiency. However, this withdrawal of money was not forseen by students and obviously was not forseen even by the Administration, for surely, if the Administration had forseen such awithdrawal of monies, they would have given a formal order, or made formal request to those who were sunbathing to put on their clothes. (WHICH IT SHOULD BE NOTED THEY AT NO TIME DID.)
Thus, the assertion by the Vice-Chancellor in his letter, that "you cannot have been ignorant of the likely consequences of your action", is clearly invalid and unfair for by what token can he assume that the students were aware of the "likely consequences" of their actions when it is obvious (from the lack of directive at the time from the administration to the students concerned) that not even the administration were aware of the possible outcome. The implications of the type of retrospective punishment being invoked in this situation are abhorent. To draw a parallel: if a member of this Council while driving home accidentally ran over and killed a pedestrian it could be argued retrospectively that that man had killed a pedestrian because he had driven home, and thus, to drive home constitutes a blameworthy offence. However, I believe that any rational human being will see that the driver should not be punished for he did not intend to kill the pedestrian and had no way of knowing the outcome of his action. As I have argued earlier, despite the assertion to the contrary by the Vice-Chancellor, the students involved in sunbathing at Keele had no way of knowing that it would lead to a withdrawal of £ 20,000 from the University. Nor do I believe that in this day and age when nude plays, nudist colonies and health farms flourish, and when we are - one would hope - less inhibited and less restricted by the proven psychologically harmful aftermath of Victorian prudishness, that any student could reasonably be expected to think that such a harmless action could have such repercussions.
In conclusion then, may I ask the members of Council to consider my appeal with the open minded rationalism of which I am convinced they are possessed. I would further like to point out that I have a lot more to say on this subject and in all fairness feel sure that the Council members will realise that had I been allowed to be present, I would have been able to clarify the situation far better than I can do in this letter, furthermore as I am not present and there is consequently no feed-back I am unable to answer any queries or objections that I am sure will be raised. In view of this may I beg to appear in person before the council if there is any question of my appeal being rejected.
Yours faithfully, Simon V. Glynn.
P.S. I am a finalist next year and in view of the travelling involved, the structure of my timetable and the fact that I should have to rely upon Public Transport, I feel that exclusion from campus residence would have an extremely detrimental effect upon my examination performance.'
Having heard no more, according to his affidavit, the plaintiff went abroad at the end of July. On 10th August a letter was written to the plaintiff giving him notice that the date of his appeal had been fixed for 2nd September. The plaintiff himself did not, according to his own evidence, receive that letter until he came home from abroad considerably after 2nd September. His mother acknowledged the letter and stated her own views. In the event, on the date fixed for hearing the appeal, the plaintiff was not present or represented, and accordingly the decision of the vice-chancellor stood.
The plaintiff has given evidence to the effect that he has been seriously inconvenienced by his exclusion from residence on the campus. I need not, I think, go through the particulars of the matter. It will be sufficient to say that although separate accommodation in the village of Keele was offered to him, he did not find that accommodation acceptable, or perhaps practicable, for one reason or another, and in the event he found lodgings some ten miles away. That involves a daily journey to and from the campus, and unfortunately in November he had an accident which involved his car in being a total write-off, so that the inconvenience is considerably augmented. I should mention that the plaintiff in fact paid the £10 fine in order to get back to his studies. In those circumstances the writ in this action was issued, and notice of motion dated 2nd December was given.
