Report of Discussion: 7 February 2017

A Discussion was held in the Senate-House. Deputy Vice-Chancellor Professor Dame Ann Dowling was presiding, with the Registrary’s deputy, the Senior Pro-Proctor, the Junior Pro-Proctor, and three other persons present.

The following Reports were discussed:

Second Joint Report of the Council and the General Board, dated 23 January 2017 and 18 January 2017, on the consideration of student complaints of harassment and sexual misconduct (Reporter, 6452, 2016–17, p. 326).

Mr R. E. Shah (Faculty of Law), read by the Senior Pro‑Proctor:

Deputy Vice-Chancellor, I welcome the efforts of the University to fight sexual assault and the changes they made to the Report since it was last published.

One must bear in mind that the University is under a contractual duty to act fairly when conducting disciplinary procedures.1 In addition, the University is under a public law duty to act fairly when disciplining its members. There is ancient authority for this principle, a case from 1722 states that ‘all care shall be taken that justice shall be duly administered in the universities’.2

Unfortunately, I am concerned that the Report does not meet that duty to act fairly.

First, the possibility that the University might persist with disciplinary proceedings even when the police has declined to prosecute. This is very problematic because the decision by the police not to prosecute could be based on a number of different pieces of evidence, for example CCTV images, medical reports, and information obtained in the course of another investigation. This is evidence which the University and the respondent might not know of or might not have access to. Hence, if the University would be deciding to persist with disciplinary proceedings, it would do so without the benefit of all the evidence available. Further, the respondent would not be able to avail themselves of exculpatory evidence which could clear their name. In fact, there does not seem to be anything in the report regarding the respondent’s right to have evidence which is beneficial to their case disclosed to them (paragraph 6.2.3(a) does not go very far as it just provides for the gist of the allegation to be disclosed). This makes the proceedings unfair.

Second, the Special Ordinance on precautionary action does not contain adequate safeguards. Under that Special Ordinance the Academic Secretary (AS) is empowered to suspend the respondent, before they have been found guilty, from their studies, to ban them from University buildings, or to impose any other condition on that person. All of that without there having been any finding of guilt.

There are a number of concerning points:

1.As drafted it is unclear whether the starting point is that precautionary measures should be ordered or not. Since the respondent is presumed innocent the starting point of the enquiry must be that precautionary measures ought not to be ordered unless there are substantial grounds for doing so.

2.The absence of an evidential standard under which the AS must consider whether either of the two conditions for granting precautionary measures are satisfied.

3.The Special Ordinance does not require the AS to state the evidential basis on which they arrived at the conclusion that either of those two conditions are satisfied. Without that information how is the respondent able to make submissions about those measures?

4.The AS is not directed to consider the impact of the measures on the respondent. All that is required is that the measures be necessary to protect the investigation or individuals. This means that if this test is satisfied a student could be suspended from the University even if this would have much greater consequences for that student than it would for an ordinary student (for example, that student is on a visa and might not be able to have it extended in order to stay another year).

5.The Special Ordinance does not address the incidental consequences of imposing such measures. For example, what happens in regards payment of fees or visa related issues?

The aims of the Report are undoubtedly good ones but I fear that as it stands they have not been properly executed and might leave the University open to adverse legal action.

Report of the General Board, dated 18 January 2017, on the establishment of a Professorship of International Law (Reporter, 6452, 2016–17, p. 337).

No remarks were made on this Report.