Out-Law Guide 6 min. read
18 Nov 2010, 1:43 pm
In light of the recent student demonstrations in London and plans for further action, universities need to consider whether their procedures for handling protests and occupations are fit for purpose.
While most students and lecturers involved in the protests were committed to peaceful expression of their views, some resorted to violence. This guide examines the factors that a university should consider in deciding whether to discipline the minority of students who engage in anti-social or criminal acts during protects.
The power of a university to discipline a student is usually enshrined in the contract formed between the student and a university on enrolment and set out in its regulations.
Under this contract a student agrees to abide by a set of disciplinary regulations prescribed by a university and in turn a university (subject to the requirements of public law) is obliged to act in accordance with its regulations.
Under a university's regulations the grounds for instituting a disciplinary process are likely to be based on alleged acts of misconduct. Misconduct is usually defined as breaches of a university's rules, including misdemeanours which occur on university premises or involve other members of a university or which bring the university into disrepute. However, the definition of misconduct is often extended to include conviction for criminal acts whether connected to a university or not.
As long as the university applies proper procedure, if it finds that a student is guilty of misconduct which falls within the scope of its regulations, then it has the power to sanction the student as prescribed in those regulations, including in the most serious cases by expulsion.
In bringing disciplinary proceedings a university must act carefully. It must ensure that it follows its own procedures. However a university should not be slavish to those procedures if this could result in potential unfairness to the student.
The rules of natural justice which underpin public law and the application of the Human Rights Act 1998 provide that a common sense approach should be adopted to ensure fair play. This includes giving the student a fair chance to put their case and avoiding the risk of apparent bias or pre-determination. In particular, universities must ensure that a student has sufficient notice and sufficient detail of the case against him or her in order to properly prepare their defence.
Consideration should also be given to any reasonable adjustments which may need to be made to accommodate disabled students under the Disability Discrimination Act.
In addition, sanctions must be proportionate to the misconduct (including any mitigating circumstances). It is likely that a university will only be able to safely apply the most serious sanctions (such as expulsion) in the most serious cases.
For a student to be found guilty of misconduct a university must be satisfied that, on a balance of probabilities, it is more likely than not that the allegations made against that student are true.
As part of any disciplinary action, a university needs to ensure that the allegations of misconduct are fully investigated. In particular, it is necessary to establish whether there is sufficient evidence to show that the alleged misconduct took place and that the student accused was responsible for the acts complained of. This creates difficulty in situations where there has been group action such as a protest or a sit-in. It is often difficult to establish the extent of an individual student's participation, given the numbers involved and also the fact that ring-leaders often obscure their faces to avoid identification.
This need to pay careful attention to the evidence is important in cases of serious allegations of misconduct – particularly where expulsion may be the sanction. While it has been decided that the civil standard of proof should remain in internal disciplinary procedures – as the criminal standard of proof (beyond reasonable doubt) is too strict – a university disciplinary committee must take more care to satisfy itself that the offences occurred on the balance of probabilities in serious cases where expulsion is contemplated than in a matter of minor misconduct.
The power of a university to discipline students engaged in misconduct (including being engaged in violent, disruptive or criminal acts) needs to be balanced against the duty on universities to take positive steps to promote free speech within the law. These duties are enshrined in the Education Act 1986, and the rights to freedom of expression under Article 10 of the European Convention of Human Rights.
However, as these duties are qualified and only intended to preserve free speech within the law they are unlikely to preclude a university from taking reasonable and proportionate steps against students who have acted outside the bounds of lawful expression by conducting themselves in a manner which is violent, anti-social or breaks the criminal law.
If students – as in the case of the Millbank House protest – can be shown to have acted in a manner which puts them outside the realms of reasonable expression of free speech, the university is unlikely to be precluded from instituting reasonable and proportionate sanctions against them.
Perhaps the most difficult disciplinary cases are those which involve students who have breached both a university's regulations and the criminal law by using violence or causing criminal damage. These cases involve careful consideration of where the boundaries lie between the criminal law and internal disciplinary procedure, as criminal and disciplinary processes will often be running alongside each other.
For example, in the case of the Millbank House protests, there were arrests. It is likely that if any students were involved they could be subject to police investigation, potential criminal proceedings, and if found guilty, a criminal conviction.
In these situations a university has to decide whether it should pursue its own internal procedures and, if it does, whether to defer those procedures while the student is being prosecuted in the criminal courts for the same incidents.
It is often argued that pursuing internal proceedings before completion of an associated criminal case could prejudice a student. However, there is no rule which precludes this. It will be up to the student concerned to demonstrate that there is a real risk of prejudice. Similarly, the double jeopardy rule does not apply, as internal student disciplinary procedures are an entirely separate forum from the criminal courts.
However, it would be unwise for a university to press ahead with internal action in circumstances where serious criminal acts have occurred because a university's disciplinary committee is not a criminal court. It does not have the expertise to try matters where a high standard of proof and forensic examination of evidence is required, as well as skilful and careful handling of witnesses. Similarly it may also be unwise to proceed in cases where the police or Crown Prosecution Service have decided not to go to trial because of lack of evidence – although this is not always a bar given the lower standard of proof in internal proceedings.
The benefit for a university of waiting until the completion of a criminal case is the fact that if a student is found guilty in the criminal courts the university could consider instituting disciplinary procedures and rely on the evidence of conviction to support its case for misconduct – although some commentators suggest that taking such steps may be unnecessary if the student is in prison.
Suspension should be considered in such cases where the outcome of a trial is awaited, subject to the student's right to make representations. The suspension should be reviewed at regular intervals as, although formally a neutral act, it can still have a dramatic effect on a student's progression.
Another day of action has been planned for 24th November. It has been suggested that some members of the National Union of Students (NUS) favour more radical action. Consequently we may see a repeat of the angry and anti-social behaviour of last week, possibly targeted at university campuses.
Universities will need to think carefully about how they manage both their handling of the forthcoming protests, but also how they deploy their disciplinary powers, including expulsion, to deter aggravated protests or to punish students who are found to have instigated or assisted the use of violence or criminal damage.
As explained above, any action taken will need to be in accordance with a university's own regulations, and proportionate given the risk of successful challenge through the OIA or the courts.
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