On 3 July 2019, the Court of Appeal handed down its decision in R (Ngole) v University of Sheffield ([2019] EWCA Civ 1127).  The case concerned an appeal against a dismissed judicial review of the decision to remove Felix Ngole, a social work student, from his course.

The Court of Appeal allowed the appeal, and remitted the case it to the university’s disciplinary body for a fact finding hearing.  In doing so, the Court gave guidance on the legitimate aims for restricting the expression of professionals.  It also clarified that a blanket ban on expressing controversial views in public will not, on its own, be a proportionate sanction.

Background

Ngole was a Master’s student at the University of Sheffield.  He was also a devout Christian.  He was enrolled in a social work course, which caused him to sign a professional code of conduct.

In September 2015, Ngole posted a series of comments using his Facebook account in which he disapproved of homosexual acts.  He included a number of Biblical quotations, some of which contained strong language, such as referring to homosexuality as an “abomination”.

The university was notified of the comments and embarked on disciplinary proceedings.  At the conclusion of the proceedings, the university was of the opinion that Ngole’s actions breached two requirements of the code of conduct, including to make sure that his behaviour did not damage public confidence in the profession.  As a result, Ngole was removed from his course.

Ngole sought judicial review of the decision on two grounds.  First, that the decision was an unlawful interference with his rights under Articles 9 and 10 of the European Convention on Human Rights (“ECHR”).  Secondly, that the decision was unfair and arbitrary.

First instance decision

At first instance, Rowena Collins Rice, sitting as Deputy High Court Judge, dismissed Ngole’s judicial review ([2017] EWHC 2669 (Admin)).

Ms Collins Rice held that there had been a lawful interference with Ngole’s Article 10 rights.  Although she noted that the religious dimension of the case was legally relevant, she did not go so far as to accept that there had been an interference with Ngole’s Article 9 rights.  For an interference to be permissible, it must be prescribed by law, it must be necessary to achieve a legitimate aim, and it must be proportionate.

Regarding the standards materials, Ms Collins Rice found that they were prescribed by law.  They were sufficiently clear and precise.  Moreover, the judge noted that the materials had been made readily available to Ngole, and that the scope of the materials extended to personal postings on social media.

In relation to the legitimacy of the aim pursued by the university, the judge found that an interference with an individual’s Convention rights could be justified in order to maintain public confidence in the profession.  It could also be justified to ensure service users were treated without discrimination.  It did not matter that Ngole had not acted in a discriminatory manner; it was the future risk posed by Ngole that was relevant.

In coming to a conclusion on proportionality, the judge considered the intrusiveness of removing Ngole from the course to be justified on the basis of his reaction to the university’s disciplinary procedure.  The university had made the decision to remove Ngole because he “lacked insight” and had become “entrenched” in his position.  She also considered it to be a proportionate decision overall, as Ngole had not been placed in a decision where he had to choose between his faith and being a social worker.

For those reasons, Ms Collins Rice held that a fair balance had been struck and declined to interfere with the decision of the university.  Ngole appealed the decision.

Judgment

The Court of Appeal allowed the appeal.

The Court agreed with Ms Collins Rice that the relevant regulations and guidance were sufficiently precise.  The Court also agreed with the first instance judge that the maintenance of confidence in the relevant profession falls within the legitimate aim of professional regulation.

However, the Court disagreed with Ms Collins Rice’s finding in relation to proportionality.  The Court’s decision turned on the degree of intrusion caused to Ngole’s Article 10 right, and whether a less intrusive alternative to removal from the course and bar from professional life would have sufficed.

In the Court’s view, the university had adopted a stance which amounted to a blanket prohibition against Ngole voicing his religious views on sexual ethics in any public forum. Therefore, the university’s position was disproportionate.  The Court of Appeal held that the university’s position would preclude Ngole from expressing his views in any public forum, including offline spaces.  Further, the Court held that if it accepted the university’s position, it would extend to all professionals covered by the relevant regulations, such as psychologists.  It would also affect “many Muslims, Hindus, Buddhists and members of other faiths with similar teachings” (at [127]).  This stance was not in line with the relevant code of conduct and guidelines, the Court held.

The Court also held that the university had not taken the least intrusive sanction available to it as it had been too quick to decide that Ngole was entrenched in his position.  It had failed to explore lesser penalties that could have been applied.

Comment

With this decision, the Court of Appeal has signalled that “a blanket ban on the freedom of expression of those who may be called ‘traditional believers’ cannot be proportionate” (at [129]).  It would require something further, such as comments that were “abusive, used inflammatory language of [the speaker’s] own, or were condemnatory of any individual” (at [129]).

However, the Court also stressed the importance of maintaining public confidence in the profession, a legitimate aim which could justify restricting an individual’s expression.  Ngole’s view that the university had no right to interfere with his freedom of expression was also untenable.

The Court made clear that assessing the boundaries of the legitimate aim is necessarily sensitive to differing professions and factual backgrounds.  Nonetheless, it gave some guidance on what would and would not fall within the legitimate aim of maintaining the public’s confidence in a profession.

In the Court’s view, the aim cannot be so wide so as to prohibit “any statement that could be thought to be controversial or even to have political or moral overtones” (at [105]).  However, the boundaries of the aim extend far enough to “ensure that reasonable service users perceive they will be treated with dignity and without discrimination” (at [106]).

The difficulty for decisions makers will be deciding the lawfulness of a restriction where, as was the case in Ngole, no identifiable service users have been discriminated against or treated without dignity but the impugned expression demonstrates a willingness of the claimant to be dogmatic in a public arena, regardless of the audience.  Further, difficulty will arise where decision makers must decide where the ‘inflammatory language’ of a religious text ends and the ‘inflammatory language’ of the speaker’s own begins, as was the case in Ngole.

Samuel Rowe is a student at the University of Oxford.