Shall I get a fair hearing?

IMG_0043There is a difficulty in introducing an informal stage in a disciplinary context unless the allegation can be disposed of speedily and in a way the accused student accepts is fair.

Case-management hearings

It is not in the interests of student or the institution for a disciplinary process to drag on and on and ‘case management’ can help to ensure a speedier process.

In some institutions it is envisaged that there may be a preliminary (pre-trial) hearing or similar meeting.

  • This can be a valuable means of ensuring that it is clear what is at issue and how it can be dealt with most speedily as well as fairly.
  • It is helpful where the disciplinary process is countered by a complaint from the student or where the process involves both students and employees.
  • It may become especially important to make this provision where new kinds of disciplinary charge emerge in the new fees and funding régime or as a consequence of extreme actions in the course of protests and sit-ins.
  • Institutions should have clear ‘double jeopardy’ rules for dealing with student discipline in situations where there has been alleged commission of criminal offences by students in the course of protests and sit-ins.

For an example, see:

http://www.admin.cam.ac.uk/reporter/2010-11/weekly/6210/section1.shtml#heading2-6

Are there any basic rules the provider should be following?

Representation

  • No student should be required to be ‘tried’ for a disciplinary offence without support.
  • Student Union support or other representation should normally be allowed to a student who asks for it.
  • Legal representation is allowed by some institutions, and in some cases lecturers from the Law Faculty will provide such help for students pro bono (free).

Giving details of the case against the student and providing an independent judge

One of the two rules of ‘natural justice’ is that a person accused must be told the charge and shown the evidence and be given an opportunity to rebut both, with adequate time to prepare a defence, which may include calling witnesses for the defence.

The other rule of ‘natural justice’ is that the judge must be unbiased.

In order to comply with this requirement, institutions should allow students to opt  to have a student included on any panel hearing a disciplinary charge.

The standard of proof

In disciplinary processes the standard of proof should normally be the criminal standard, ‘beyond reasonable doubt’.

Appeal

A student found guilty of a disciplinary charge should always be told of the right of appeal and how to appeal. A reasoned decision should be provided with the ‘judgement’ so that the student can determine whether there are grounds for appeal.

The student record

  • The student should  be told if a note of the outcome is to be kept on his or her student record
  • and of the circumstances in which it may be made known to enquirers
  • also of the right under the Data Protection Act to see the wording of the note.
  • If an appeal succeeds the note should normally be expunged from the record.

Should sanctions include fines?

It is uncertain whether institutions necessarily have authority to fine students or impose financial penalties as punishments.  But students may prefer a fine to other possible punishments such as exclusion.

 ‘Single gateway’

On the idea of a ‘single gateway’ for complaints and potential disciplinary matters involving staff and students see:

Neville Harris , ‘Resolution of student complaints in higher education institutions’, Legal Studies, 27 No. 4 ( 2007), pp. 566–603.

Fair hearings

    Neville Harris , ‘Resolution of student complaints in higher education institutions’, Legal Studies, 27 No. 4 ( 2007), pp. 566–603.

 ‘Briefly, the traditional judicial view has been that a student has no right to an oral hearing before being excluded provided that he or she has a proper opportunity to put his or her case in writing: Brighton Corporation v Parry (1972) 70 LGR 576. But given the consequences of, for example, failing to complete one’s PhD or a professional qualification, it is possible that in some cases a complaint about provision could fall within the principles set out in R v Army Board of the Defence Council, ex p Anderson [1992] 1 QB 169 as warranting an oral hearing. There would be no guarantee of an oral hearing under Art 6 of the ECHR not least because a civil right is not being determined: see R (Varma) v Duke of Kent [2004] EWHC 1705 (Admin), [2004] ELR 616 and the discussion below. The kind of hearing required has also been an important issue, one of due process, in the USA, more particularly in the context of disciplinary matters; see, eg, Goss v Lopez 419 US 565 (1975).