Higher education providers are coming under increased pressure and scrutiny to crack down on student’s suspected of having committed some form of academic misconduct (such as plagiarism, whether due to referencing failures or impermissible use of A.I.) or those have been accused of non-academic misconduct (such as breach of accommodation rules or in serious cases, conduct parallelling criminal offences, like sexual misconduct or harassment).  In either instance it would be a daunting time for anyone.  Even if the misconduct is at the lower end of the spectrum this can still have serious consequences, such as having one’s studies terminated and/or excluded from accommodation and university property.

However, despite these serious risks, a student cannot expect the same standard of investigation as a one by the police, and the burden of proof to be found guilty is only the balance of probabilities, not beyond reasonable doubt.  The stakes are made ever higher by the fact that the investigations conducted by providers are often carried out by staff who have not been specifically trained in fair and reliable investigation techniques.  It is all too common to see multiple allegations being seen as self-proving, witness statements being compiled in a way that suggests the answers for the panel, hearings being conducted without any witnesses present against the accused student resulting in no opportunity to test the evidence, and students being denied the chance to have a representative present to assist them.

It is at these times that one must remember that higher education providers are, first and foremost, bodies carrying out a public function.  This means, whether they realise it or not, they are subject to the various obligations and standards expected of any other public body and their decision-making processes.  In particular, it means that providers will be expected to adhere to the standards of natural justice and the various elements of procedural fairness, irrespective of what their terms and conditions or policies may state.  At the best of times, these are difficult waters to navigate.  It is often vital to secure professional advice at an early stage for any misconduct complaint.

How do misconduct processes often work?

  • A complaint will have been made either to the university, or it will raise it of its own motion;
  • Most procedures will have provision for a member of staff to be appointed as an investigatory officer (I/O) who will gather evidence in respect of the allegation(s). This often entails investigatory meetings, compiling statements and gathering other forms of evidence; following which the I/O will reach a decision on whether to refer the allegations to a hearing panel;
  • The student should be able to submit supporting and/or mitigating evidence, which can include expert evidence;
  • The hearing panel should offer the student an opportunity to present their case and to test the evidence against them, and most panels will often be proactive in the hearing. The student should also have the opportunity to offer mitigation for any penalty / punishment in the event that the allegations are found to be proven;
  • The time period within which the decision should be issued is usually prescribed by the procedure;
  • If it is unsuccessful there is usually provision for a stage 2 to allow consideration of either new evidence or any procedural irregularity in the stage 1 process; and
  • If there is not a stage 2 or it proves unsuccessful, a complaint can be made to the OIA within 1 year of receiving a completion of procedures letter.