A recent survey carried out by law firm Hickman and Rose, reported in the Telegraph, highlights the complete lack of any uniform policy with regards to university discipline investigations.
University discipline investigations can cover academic (such as plagiarism) and non-academic (such as sexual assault) breaches of university discipline. In this article, we will focus on non-academic investigations, largely described as ‘misconduct investigations’.
What happens if there is an allegation of misconduct?
If a student is accused of misconduct, they will usually be subject to misconduct proceedings. Misconduct can be any behaviour that brings the university into disrepute or is a breach of the university discipline code. This can vary from verbal abuse to antisocial behaviour, from harassment to serious sexual assault, from theft from the common room to drug supply. The policy and procedure usually remain the same whatever the allegation, be it name-calling or serious sexual assault, only the sanction will differ. This means that an allegation which could result in expulsion is investigated with the same procedure and scrutiny as a minor infringement which could just attract a verbal warning.
If an allegation of unlawful behaviour is made, the university will advise the complainant that they can make a complaint to the police and if they do so, this will usually halt a university investigation. In our experience, the majority of complainants choose to allow the university to investigate, particularly where the accused is known to them.
What is the procedure?
There is no standard procedure, with each university (including colleges within universities) devising their own policy, and some not having a policy at all. In some universities, including those in the Russell Group, an accused is not permitted any legal representation whatsoever, despite being accused of the most serious offences which would attract a substantial custodial sentence if convicted in a criminal court. In others, legal representation is permitted from the outset or is dependent on the specific circumstances.
Some universities appoint experienced investigators (such as ex-police officers), whereas others rely on members of academic staff.
The panel/tribunal which decides on whether a breach of university policy has taken place can be made up of members of academic staff or, in some cases, an experienced legal professional such as a retired high court Judge.
Students may therefore find themselves experiencing vastly differing outcomes, despite the similarity in the evidence, merely because of the procedure followed by the university they happen to have chosen.
The differing procedures can result in a student being sanctioned (including expulsion from university) without having:
- An investigation by an experienced investigator
- A lawyer to assist, properly test the evidence, and support them
- A tribunal that is experienced and trained in assessing evidence
- A tribunal/body experienced in delivering an appropriate sanction
Complainants may also feel aggrieved by this process, especially if they have to give evidence at a disciplinary hearing in person and have to face the person accused.
Examples of how procedures can vary
We have heard of an instance where a student who denied sexual assault had a finding made against him, and the sanction imposed was for him to write a letter of apology although he vehemently disputed the allegation. We know of another where a student was not allowed any legal representation throughout the investigation and chose to withdraw from an elite university because he could not cope with having to deal with the investigation alone and did not trust the process. We know of another case where the individual tasked with safeguarding the welfare of the accused, was also responsible for the welfare of the complainant and another where the academic responsible for deciding if there was a case to answer was the tutor of the complainant and refused to recuse themselves.
Not only should such investigations be fair and follow due process, they should also be seen to be fair.
What must happen next?
With the escalation in sexual misconduct complaints at universities and draconian sanctions available, university misconduct investigations are in the spotlight. The subjects of these investigations are generally young, inexperienced people living away from home for the first time. It is essential that any process is fair, independent and non-biased, and supportive to both the accused and the complainant. It is also essential that a student’s experience of a misconduct investigation is not prejudiced because of the university they happen to have chosen.
A consistent approach to university misconduct investigations and a willingness by universities to conduct a call for evidence regarding such investigations and procedures will go some way to ensuring greater fairness to the process. It is currently uncertain whether there is any such willingness by universities to conduct this research and co-ordinate approaches to the issue of misconduct investigations. If there is, it can only be of benefit to students.