TOO MANY RIGHTS AND NOT ENOUGH RESOLUTION Adrian Slater

1. TOO MANY RIGHTS AND NOT ENOUGH RESOLUTIONAdrian Slater These slides and related presentation do not constitute legal advice. Specific legal advice should be taken before acting on any topics covered.

2. The Rights Society Have you a complaint today? (UK city council employee notice)

3. The Rights Society • So many student rights from so many places • contract, tort, statute, public law and OIA “fairness” • awareness amongst academics limited • Some academics think formal process not a right way of dealing with plagiarism cases • Freedom of academic judgment but most mistakes are in process

4. Concept of natural justice, Human Rights Act and “fairness” – what are the rights? • Advanced written notice of the process to be followed • Advanced written notice of the grounds of case against • Ability to review in advance the relevant evidence (written statements, all the evidence, unhelpful evidence as well?) • Reasonable time to prepare defence (what is reasonable?) • Right to be heard at a hearing in a reasonable period of time • Those judging not bias and have no conflicts of interest (“no judge in his own cause”) • Right to representation/supporter (legal representation?)

5. Concept of natural justice, Human Rights Act and “fairness” – what are the rights? • Right to test the evidence in the hearing (cross examination of witnesses?) • Right to record the hearing (tape recordings?) • Right to judgment in a reasonable period of time • Right to be given reasons for judgment (how much detail) • Penalties to be fair and proportionate (tariffs and fines) • Right to appeal (review of process or “start again”?) • Proportionality and flexibility of rights!

6. Common Errors • Students not allowed to see all relevant evidence • Surprise evidence introduced at the last moment • Mishandling of dealing with connected issues e.g. harassment • Inconsistent penalties at local level • appropriate plea bargaining and informal deals • Recording of offence and mentioning in references • Misunderstandings as to burden and standard of proof

7. Burden and Standard of Proof • Burden of proof – which side has to prove guilt? • generally with the University/School in cases of plagiarism • Standard of proof – level of proof required to discharge the burden of proof • reasonable grounds • balance of probabilities • beyond reasonable doubt • Appropriate standard of proof in plagiarism cases? • more serious a case more evidence needed (R v Mental Health Tribunal (Northern Region))

8. Pitfalls of Informal Chats and Confidentiality – “We can deal with this quietly?” • When is a discussion informal or formal? • When is confidentiality implied? • an alcoholic model, a small welsh wedding and a sadomasochistic celebrity! • What do you say to the student about the status of your chat and when does it go formal/non-confidential?

9. Pitfalls of Informal Chats and Confidentiality – “We can deal with this quietly?” • Case study • Third year student Ralph has come for a coffee for a “off the record” chat. • Ralph tells you in his first year significant parts of one of his essays was plagiarised but he would never do it again and has learned his lesson. • Ralph says one of his present student collaborators is plagiarising other student’s work. He would like something doing about it but he is scared and would not “come forward” and “would deny everything if asked”.

10. References and What You Record on a Student File • Data Protection Act • fair and lawful processing • keeping secure and access on “need to know basis” • student access to student data • retention for only as long as is necessary • References • warning the student of consequences for a reference • references must be accurate and fair • what about informal warnings and suspicions?

11. How Do We Keep the Lawyers Out? • “In many cases it may be a good thing for the proceedings to be conducted informally without legal representation. Justice can often be done better in them by a good layman than by a bad lawyer…A domestic tribunal is not entitled to lay down an absolute rule: “we will never allow anyone to have a lawyer to appear for him” (Per Lord Denning in Enderby Town Football Club Limited v Football Association Ltd)” • Article 6 of ECHR provides right to fair and public hearing but no express right for legal representation • The difficult “supporters”

12. How Do We Keep the Lawyers Out? • Recent movements • Kulkarni v Milton Keynes Hospital NHS Foundation Trust • R v The Governors of X School • Some influential factors • seriousness of case and consequences • ability of student to present own case (disability?) • “equality of arms” • how technical are the arguments? • how much and how lengthy is the evidence? • is credibility of the witnesses an issue?

13. How to Deal with “the Parents” • Data Protection Act/Human Rights Act/confidentiality • the parents do not have an automatic right to know • get student’s consent to communication with parents • Dealing with aggressive parents • Parents as supporters/advocates in hearings

14. How to Avoid Common Problems • Student friendly guides on process (step guides) • Be flexible on rights • Briefing/crib sheets/templates/checklists for departments • Tariffs (indicative) • Get yourself experts – plagiarism tsars • Training