Report of Discussion

Tuesday, 21 May 2019

A Discussion was held in the Senate-House. The Vice‑Chancellor’s deputy, Professor Martin Daunton, was presiding, with the Registrary’s deputy, the Junior Proctor, the Deputy Senior Proctor and twenty-two other persons present.

The following Report was discussed:

Joint Report of the Council and the General Board, dated 8 May 2019, on a revised student disciplinary framework

(Reporter, 6546, 2018–19, p. 531).

Professor G. J. Virgo (Senior Pro-Vice-Chancellor, Review Committee on Student Discipline, and the General Board):

Deputy Vice-Chancellor, I speak in my capacity as Senior Pro-Vice-Chancellor (Education) and as Chair of the Review Committee on Student Discipline.

In September 2014 the Review Committee first met to consider the state of the University’s disciplinary processes. As a former Chair of the Court of Discipline I was well aware that the University’s disciplinary processes were unwieldy and opaque. It was also clear that the University’s disciplinary code was limited: there was no power, for example, to respond explicitly to allegations of harassment or sexual misconduct.

Over the last five years various recommendations of the Review Committee have been adopted. The University has made provision for harassment and sexual misconduct in its disciplinary code and has introduced a new investigative procedure, with trained members of staff, to respond to such allegations. The trappings of a criminal justice process have gradually been removed: we now have a Discipline Committee for example, rather than a Court. The Joint Report being considered today is the culmination of this work. Five years is a long time for such work to be undertaken, even in a University such as ours. One reason for the delay is that we have been waiting for the publication of the Office of the Independent Adjudicator’s ‘Good Practice Guidelines’.1 These were published last Autumn and since then we have sought to ensure that the new disciplinary procedures are compatible with those guidelines.

The Joint Report has two components. But in the course of consultation about the new procedures a third issue commonly arose, which also needs to be examined in these remarks.

First, the bulk of the Report relates to the new disciplinary procedure much of which we are required to adopt by October 2019 to ensure that we comply with the Office of the Independent Adjudicator’s guidance, unless there is good reason not to do so. The Review Committee could find no such reason. The aim of the Review Committee has been to produce a procedure which is as transparent as possible and is fair to all parties. The new procedure gives more explicit protections to the complainant and the respondent and is explicit about the limits of the University’s powers of investigation. There is an important and much needed shift from an accusatorial to an investigatory process.

Secondly, as a logical consequence of a shift from a criminal to a disciplinary process, the Report recommends the replacement of the criminal standard of proof (beyond reasonable doubt) to a civil standard of proof (on the balance of probabilities). This would make our disciplinary processes consistent with those of other higher education institutions in this country and of most professional bodies. It signals a shift away from a penal system to one where civil sanctions can be imposed.

Thirdly, there has been significant discussion and comment about the appropriateness of the University engaging with allegations of sexual misconduct which could well involve criminal conduct. For a number of years, following the publication of the Zellick Report in the early 1990s, Universities were advised to leave such matters to the police. But our legal responsibilities and duties have moved on. This was confirmed in 2016 by Universities UK. It has also been confirmed by the opinion of Counsel which was recently obtained by the University, which emphasises that Universities cannot simply decline to deal with such allegations. It is consequently vital that we continue to do so. But we must do so transparently and without raising incorrect expectations about our powers. The University lacks the powers to conduct a criminal investigation, to conduct a criminal trial and to impose criminal punishments. This is the reason why the disciplinary process needed to be changed and why the criminal standard of proof is no longer relevant. It is vital that we continue to make clear to all students what the limitations of our processes are. Each case will need to be assessed on its merits to determine whether it should proceed to investigation and from there on to consideration by the Disciplinary Committee. We need to trust that those who are making decisions at each stage of the process do so properly and on the basis of the evidence available. In order to ensure that this occurs the system has appropriate checks and balances in place, including explicit criteria for commissioning an investigation and referring it to the Discipline Committee, limits to the investigation that can be conducted and an appeal mechanism.

I commend this Report to the Regent House as providing us with the opportunity to ensure that our disciplinary processes are clear, workable and fair to all students.

Ms C. M. Sosienski Smith (CUSU Women’s Officer, and Selwyn College):

Deputy Vice-Chancellor, I am the current Women’s Officer at the Students’ Union and I graduated from Selwyn College in 2018. I was elected to my current role on the manifesto pledge to improve the student disciplinary procedure, with an explicit commitment to push for using the balance of probabilities as the standard of proof in all student disciplinary cases. In March 2019, I was elected to the National Union of Students as the next Vice-President of Higher Education on a manifesto that centres the voices of students traditionally marginalised by their university, pledging to strengthen the UUK’s accountability measures for universities’ inadequate responses to sexual violence and harassment. Student disciplinary procedures that are consistent, transparent and fit for purpose are what students need, and what they ask their elected representatives to advocate for on their behalf. This is why I feel an immense amount of pride to be here today to ask the members of Regent House to represent the University and vote yes to reforming the disciplinary procedure changing the standard of proof to the balance of probabilities.

The reformed procedure is the functional and fair procedure we have been campaigning for since the Women’s Campaign published its 2014 report, Cambridge Speaks Out.1 This report found that 77% of respondents, equivalent to 2,131 students, had experienced sexual harassment while at this University, and 80% of those did not report the incident. The report recommended that the University and Colleges pledge to change the culture of silence around sexual violence in Cambridge and improve reporting procedures to ensure that any student feels that they will be supported, their information kept confidential and the process will be oriented around them. My time at this University has been shaped by the findings of that report and the University’s response to it. In 2017, Breaking the Silence was launched, with its University-wide statement that, ‘There is no place for any form of harassment or sexual misconduct at the University of Cambridge’ and that

[t]he University will continuously work to improve the prevention, response, support and investigation of all instances of harassment and sexual misconduct; and to enable staff and students to make disclosures without fear of reprisal.

Under the old student disciplinary procedure, we have been unable to uphold this commitment.

However, the last twelve months has seen the work of countless individuals and stakeholders both inside and outside of the University revise the student disciplinary procedure into one that can offer a clear and transparent process of student discipline. Following the Senate House Discussion in May 2018 and its resulting consultation, OSCCA and the Discipline Committee have drafted a revised procedure that updates the Rules of Behaviour for members of the University, introduces Student Discipline Officers and a dedicated full time Investigating Officer, and recommends changing the standard of proof to the balance of probabilities in all student disciplinary cases. I say all student disciplinary cases, for students who are subject to fitness to practice regulations, which are medical, veterinary and PGCE students in this University, are already required to be considered under the balance of probabilities. Changing the standard of proof ensures that we have a consistent disciplinary procedure for all students.

During the last University-wide consultation in February 2019, 88% of students agreed with all of the proposed changes. The few who oppose the change to the standard of proof raise concerns about potential risks they identify with the change. It is, however, far riskier for the University to not change its standard of proof from the criminal burden of proof.

The revised student disciplinary procedure is a civil procedure that investigates whether the Rules of Behaviour have been broken, not whether a criminal act has taken place. The legal counsel on the revised procedure concluded that it is lawful for the University to investigate complaints about matters which would constitute serious offences under the criminal law. The University is not equipped to handle criminal processes and it should not be attempting to do so. By changing the standard of proof from the criminal burden of proof, the University is signalling a clear distinction between the outcomes of its internal disciplinary procedure from those that would be given by a criminal court.

I state the findings of OSCCA published with the results of the consultation that ‘any University finding of misconduct would be irrelevant to a criminal court as it would have been reached using a different standard of proof.’ OSCCA also highlight how ‘[t]he student disciplinary framework has checks and balances in place to avoid the risk of wrong or unfair decisions’ which includes

separating investigation from decision-making, having an appeal mechanism for the Discipline Committee’s decision, required training for all decision-makers and external oversight via the OIA and the judicial review process.

A student’s right to a fair trial would not be infringed under the student disciplinary procedure because it is not a court of law, and no student would be charged with a criminal offence. It is for this reason why the Rules of Behaviour are such an important revision within the reformed disciplinary procedure, alongside the introduction of an Appeals Process that does not require a calling of the Septemviri, which would take months to meet.

To have a fair and accessible student disciplinary procedure, we must have a procedure that is capable of handling complaints that concern sexual misconduct. We can only do so if we change our standard of proof used in cases to the balance of probabilities. This places the burden of finding evidence onto the Investigator, rather than requiring the student making the complaint having to relive their trauma by engaging with a long and often fruitless process that treats them as a witness in a criminal court. I very much look forward to members of the Regent House responding to the need to reform the disciplinary procedure, including the need to adopt the balance of probabilities as the standard of proof in all student cases. I urge members of the Regent House to exercise their democratic power by advocating for those who continue to be silenced by this University.

Dame Barbara M. Stocking (President, Murray Edwards College):

Deputy Vice-Chancellor, I am the President of Murray Edwards College and I speak both for myself and also for our College Council.

In the UK, nine out of ten women who have been sexually assaulted or raped do not go to the police. There are several reasons for this but one of their main concerns is that they do not want the most intimate details of their personal lives exposed and interrogated in the court room. It is unsurprising then that students in Cambridge also tend not to report incidents of sexual assault to the police.

The fact that many young women feel unable to report sexual assault to the police does not take away the duty of care the collegiate University has for its students – a fact that was recognised by the change in University policy in 2015 concerning sexual misconduct. Like many others, Murray Edwards College strongly supported the change in policy and the subsequent procedures put in place for investigation and disciplinary action.

When students in our own College have been harassed or raped, we make sure the options available are clear to them – including the option of going to the police. However, if they don’t want to do so, we advise them on the University’s policies and procedures. In our experience, we have found that the Colleges of the alleged perpetrators respond in varied ways – some take the matter seriously, others do not. As such, we believe it is preferable to use the University’s procedures because of the expertise now available with the appointment of a specialist staff member to handle the process, and also for reasons of fairness.

In setting out options, we do have to make it clear that the University does not have the right or the resources to undertake a criminal investigation – and students must understand that from the outset. We are also well aware that when a criminal process is underway, action by the University should in no way obstruct or make difficult the proper progress of a criminal case.

Some argue that because the University is often unable to deliver evidence that is beyond reasonable doubt, it should not investigate allegations of sexual misconduct or take any action at all. We believe this is quite wrong. Other universities in the UK use the standard of proof to be ‘on the balance of probabilities’ and this should be the case for the University of Cambridge too. It’s true that the University cannot use the same processes that a criminal investigation would use – but nor can they issue the same sanctions. However, the University can take forward disciplinary investigations and sanctions – and as such, it is entirely appropriate that the standard of proof is ‘on the balance of probabilities’ in such cases.

Some are concerned that alleged perpetrators will have their lives ruined unjustifiably because certain types of evidence may not be available to the University – or simply that it’s one person’s word against another. We believe this concern is misplaced. The Discipline Committee (if instructed) will use their considerable skills and experience to judge whether there is enough evidence to come to a decision on the incident and what (if any) action needs to be taken. We must rely on the Committee to make a wise decision. Of course, if there are concerns, there is also an appeals process available.

To conclude: Murray Edwards College welcomes the revised Student Disciplinary Framework, including a much clearer description of the rules of behaviour, especially concerning sexual misconduct. We welcome the simplification of the structures and we welcome the change in the standard of proof definition.

Dr S. A. Ropek-Hewson (President of the Graduate Union, Department of French, Pembroke College, University Council and the General Board):

Deputy Vice-Chancellor, Cambridge is clearly incapable of sustaining a criminal standard of proof, when it doesn’t have the resourcing or staffing of a criminal court or its support system, when no other universities adopt this level of proof, and when it makes students feel unable to report sexual assault and harassment.

Cambridge also currently has a disciplinary procedure that is inconsistent with the aims of its Breaking the Silence campaign. The campaign is about breaking the silence around sexual harassment and assault, but the University currently makes it very hard for anyone to break any silence. The changes proposed are crucial if the University wants to live up to the promises it made to students when it launched this important campaign.

The University is a slow beast of a place but this process has come to an end, the legal advice is clear, and the strong student and staff support for these changes is clear.

Students need confidence in Cambridge’s processes and they need confidence in Cambridge culture – and currently many have neither. Structural and cultural change are interlinked, and we need both. It was recently suggested to me that structural change doesn’t create cultural change and you can’t expect that it will. But I don’t agree. Structural change can be hopeful and progressive, and in this case, structural change acknowledges the centrality of process to reports of harassment and rape. Students deserve a process that they understand and a process they trust, led by trained people they trust. And cultural change will follow a different standard of proof and a revised disciplinary procedure. I think it’s also important to remember that this cultural change has been and will be led by students. Amelia, Lola, Bridget, Evie, and Claire, among many others – thank you for your work; it’s up to the next student union leaders to carry on their work and embed these changes. I’m really proud to be part of a place full of so many excellent people capable of confronting a University often so resistant to desperately needed change.

Mx E. O. C. Travis (CUSU Disabled Students’ Officer, and St John’s College):

Deputy Vice-Chancellor, I am the Cambridge University Students’ Union’s Disabled Students’ Officer, and part of my role is to support students at this University with mental health conditions – including those arising from trauma. It pains me to say that the students I have worked with have found this University’s disciplinary procedure to compound that trauma, rather than enabling them to feel safer. Many survivors simply cannot bear to put themselves through the trauma of another cold, impersonal procedure that exists as a poor imitation of the courtroom, where they’d be asked to call ‘witnesses’ (including character witnesses) and where their evidence would be treated as if they’d entered the criminal justice system – with none of the resources or indeed consequences that an actual criminal prosecution system provides. Those students I know who have reported misconduct through the existing formal procedure have had their wellbeing and their education irrevocably damaged by it, while the perpetrators they have reported have faced no meaningful consequence whatsoever, even when deemed to have indeed committed misconduct.

By taking the logical step to stop using a criminal standard of proof in non-criminal cases, we increase the likelihood that survivors of sexual violence will feel enabled to use the disciplinary procedure. Currently, it is used by less than ten students a year for this purpose, when we know from the anonymous reporting system created as part of Breaking the Silence that a far greater number of Cambridge students experience both sexual violence and other forms of misconduct based on protected characteristics (such as gender, race, disability and sexuality) during their time here. The University simply cannot present itself as a ‘leader in the sector’ on combating sexual violence and minority discrimination if it is unwilling to reform its own disciplinary procedure. The University’s legal duty to abide by the Equality Act 2010, which protects against both direct and indirect discrimination on the basis of a protected characteristic, provides further motivation to ensure that the procedures we use to investigate discriminatory misconduct are fit for purpose; indeed, failure to do so may open the University itself up to accusations of unlawful discrimination under the Equality Act.

From my time in CUSU and beyond, I would like to clearly assert that this issue is a welfare issue. For too long, the University has ignored the damaging effects of sexual violence and discriminatory misconduct on its students and how this is linked to poor self esteem, low academic performance, and damage to mental health – re‑traumatising survivors rather than supporting them. I would further like to assert that this issue is also one of diversity and inclusion, two of the five named focuses of the new University Education Strategy. This is because students from various marginalised and/or under-represented groups within the University are statistically more likely to be victims of the kind of misconduct that falls under the remit of the Disciplinary Procedure, whether that be sexual misconduct or not. One of the most crucial steps both to tackle issues of diversity and inclusion within this University, and to strengthen support for survivors of sexual violence along with the principles of the Breaking the Silence campaign, is to provide robust formal procedures that students feel able to access without further risking their wellbeing by doing so.

In recent years, the University has taken many positive steps in the direction of reform. We must not stop here. This reform will signal that the University is serious about ending all forms of sexual misconduct and minority discrimination. Breaking the Silence is incomplete without this change, as is the University’s commitment to material progress on issues of diversity and inclusion in education.

Mr J. Simms (CUSU Ethical Affairs Officer, and Christ’s College):

Deputy Vice-Chancellor, I am speaking in support of the proposed changes to the disciplinary procedure and to adopting the balance of probabilities as the standard of proof.

Cambridge University’s current policy of a criminal standard of proof for student disciplinary procedures is starkly at odds with the accepted norm across the higher education sector and professional bodies at large. Indeed, it is the only UK university that still requires a criminal standard of proof, meaning disciplinary procedures need to be proven beyond ‘all reasonable doubt’.

This is an outdated and inappropriate policy for a University that claims to take its duties of equality and welfare towards its students seriously. It is rooted in the outdated recommendations of the Zellick Report – produced 25 years ago. The Zellick Report pre-dates the 2010 Equality Act, which states that Universities have a duty to ‘promote equality of opportunity on these grounds and to foster good relations between groups of people defined by reference to these grounds.’ It also pre-dates the UUK/Pinsent Masons Report, which examined violence against women, harassment and hate crimes. That report raised

concerns that the guidelines did not adequately reflect the various duties and obligations that universities have in relation to their students or assist universities in handling the most complex and sensitive incidents, particularly those involving sexual violence.

I urge the voting members of Regent House to centre the victims or potential victims of sexual misconduct in their decision making. At present it is extremely hard for survivors to seek justice due to it being notoriously hard to prove beyond all reasonable doubt. The conviction rates for rape and assault are just 5.7%. Moreover, the current disciplinary procedure is extremely hard to access, and students are often actively discouraged from using it. The fact that only ten students use the disciplinary procedure every year, when we know fully well that the numbers of students experiencing sexual violence at Cambridge far exceed that, reflects this inaccessibility.

The effects on their welfare and mental health cannot be understated; survivors have made clear the detrimental effects of having to continue sharing University spaces with perpetrators, and often even being encouraged to intermit from their studies. The University cannot claim to be a safe space, which promotes the welfare and academic achievements of its students, with such a barrier to their safety.

This is all exacerbated by the fact that Cambridge Colleges, often the first port of call for students who wish to make a complaint, have widely varying and often inadequate policies. Some adopt the University’s policy, some have no publicly advertised policy at all, and some adopt policies of their own. These are often not sufficiently rigorous; for example some Colleges have appeal processes whereby if you want to appeal against the person judging your complaint the appeal could be decided by the very person you are complaining against. Colleges often do not have the expertise, knowledge, or resources to deal with cases adequately.

This further underlines the necessity of a fair, central procedure which can ensure the safety of members of the University. The only way to do this is to ensure a system whereby it is easier for victims to access justice. That means adopting the balance of probabilities as a standard of proof.

I urge the members of Regent House to vote in favour of both of the proposed changes.

Ms E. B. Aspinall (CUSU President, Pembroke College, and the University Council):

Deputy Vice-Chancellor, I stand before you today as the President of the Cambridge University Students’ Union to ask on behalf of the student body for the creation of a fair and transparent student disciplinary procedure. This is not, I don’t think, an unreasonable ask. As students at this University, we deserve the right to study, live and rest in a safe environment. The proposed disciplinary procedure is the first step towards achieving that.

And I’m proud to stand before you today knowing that a vast array of voices agree with me. It is rare that we achieve consensus across this University but today we’ll hear statements of support from students, staff and University senior management alike for the changes to the disciplinary procedure. That in itself tells you a lot. These changes aren’t brought forward on a whim, they are the result of extensive consultation and consideration with a range of stakeholders about how the University can best serve its students.

Fundamentally this procedure is designed to recognise that the University is a place of work and a place of study, it is not a criminal court. It does not have police powers of investigation or the power to determine what is and isn’t lawful. But contrary to arguments I’ve heard repeatedly, that does not mean we should ignore cases of serious misconduct. In 2016 UUK guidance recommended that whilst cases which might constitute criminal offences might be challenging, universities must have procedures in place that deal with these cases. Furthermore, legal counsel has advised that failure to consider such cases could lead to claims against the University for discriminating unlawfully against reporting persons. Most importantly though to not consider these cases would be to fail students in the University’s duty of care.

I’ve heard repeatedly that the proposed procedure would be worse for students on the receiving end of complaints, for respondents in cases of misconduct. We are not naïve, we know that any disciplinary procedure must be applied to all cases and all students, on both sides of the procedure. But I fully believe that the new procedure is fairer for all students, no matter what side of the procedure they are on.

The creation of an investigative officer and proper training for those involved in the decision making process will ensure a more rigorous, neutral investigation which ensures a more just procedure for all. Furthermore, the implementation of an appeals process which will be completed within 30 days will embed the rights of all students to be heard and protect against unreasonable decisions. And I need not state again how important the change in the balance of probabilities is for creating a system that students feel is fair. A system which recognises that the University’s limited powers mean that it struggles to prove beyond reasonable doubt, particularly in cases of sexual misconduct.

But seeing that it is required to investigate such cases, the University must recognise that as it only has civil powers of investigation, it only makes sense to adopt the civil standard of proof. Failure to do so would be to continue to operate in a system which continually protects perpetrators over victims. It would make a mockery of the University’s supposed zero tolerance of misconduct. It would make Breaking the silence nothing more than posters and videos filled with empty rhetoric. A publicity stunt with no teeth to it. It would be to undermine students’ faith that the University fundamentally cares about them.

I’m proud that the University has largely woken up to this, that it has recognised that students deserve a fair and accessible disciplinary procedure. I am aware that some are concerned though that this policy will be at odds with others that operate around us. Firstly, they are concerned that it will clash with College procedures which retain a criminal standard of proof. To them I remind them that procedures already clash, students in different Colleges and on different subjects are already being assessed on different standards of proof. Medical students are held to balance of probabilities in fitness to practice studies already. But furthermore with its investigating officer and trained decision makers it is no bad thing if the changes mean more people use the University rather than College procedures. In fact to do so would be to ensure that more cases are met with rigorous and fair assessment, to the benefit of all.

Secondly, there is a concern that it will clash with police investigations, unfairly creating bias. However, the procedure states clearly that criminal proceedings will always take precedence. As they are assessing different things, breaches of rules of behaviour vs a breach of the law, rulings under the University procedure hold no sway during criminal proceedings. The respondent will still be entitled to a full and fair legal trial, like any other accused. Furthermore, the University will normally pause any action under the disciplinary procedure while a criminal investigation is underway. As such, there is no reason to believe that criminal proceedings will be prejudiced against the respondent as a result of the University procedure. Once again I’m drawn to the conclusion that the procedure is fair for all.

And that is the take home point about these proposals, they are fairer for everyone. They are transparent and they are clear and they are reasonable within the bounds of what the University is able to do.

I know many are rightly cautious that we must not promise students more than we can deliver with this new procedure. But I have every confidence in our trained staff to manage expectations. So lets not shy away from the significant benefits the new procedure will bring all students, whatever side of the procedure they find themselves on. It will be more rigorous, more transparent and fundamentally fairer for everyone.

So I urge you all to vote yes and yes in the ballot.

Ms M. Scott (Sidney Sussex College):

Deputy Vice-Chancellor, rather than detailing my own personal experience as a survivor of sexual violence, which amounted to an overriding reluctance to come forward under the current University Disciplinary Procedure, I want my comments on such Procedure’s structural problems to be outward-looking. Cambridge is the only university in the UK that doesn’t operate under the balance of probabilities model, a structural decision that essentially conflates members of the University reporting instances of harassment/abuse with victims seeking external legal resolutions under the criminal justice system. This is untenable. Universities UK’s document ‘Guidance For Higher Education Institutions: How To Handle Alleged Student Misconduct Which May Also Constitute A Criminal Offence’ summarises the problem:

The nature and scope of an internal disciplinary process and the nature and scope of a criminal process are fundamentally different. It is therefore important to maintain a clear distinction between them. The internal disciplinary process is a civil matter, is based upon an allegation that a student has breached the university’s rules and regulations, the allegation has to be proven on the balance of probabilities and the most serious sanction that can be applied is permanent expulsion from the university. In contrast, the criminal process is an external procedure, deals with allegations that a student has committed a criminal act, the allegation has to be proven beyond reasonable doubt and the most serious sanction that can be applied is imprisonment.1

The University is a civic institution, not a legal one. The standard of proof entails evidence beyond reasonable doubt, an absurd ask of victims who are likely already traumatised by the abuse they have been subjected to. Further, the process of providing evidence for incidents of rape and sexual assault is often one that forces victims to revisit trauma. The OIA’s ‘Good Practice Framework: Disciplinary Procedures’ echoes UUK’s observation that the nature and scope of internal disciplinary procedures and the criminal process are fundamentally different, exemplifying that

in legal proceedings the standard of proof in criminal cases is normally ‘beyond reasonable doubt’, which is a very high standard. In civil cases it is normally ‘the balance of probabilities’.

I reiterate: the University is not a legal institution. It baffles me that its Disciplinary Procedure operates under a legalistic framework at the expense of student and staff welfare. I am far from alone in thinking this – the February 2019 consultation on Student Disciplinary Procedures showed that, of 200 student respondents, 88% were in favour of all proposed changes, specifically the change in the standard of proof from beyond reasonable doubt to the balance of probabilities model.

I was Women’s Officer for Sidney Sussex College in 2016 and have been consistently involved with feminist organising over my last four years at Cambridge. Throughout my time at this University, I’ve seen that sexual violence and assault can and does affect people of all genders. This said, it is undeniable that women are disproportionately affected. Cambridge Rape Crisis cite statistics from a 2013 bulletin on sexual violence released by the Ministry of Justice (MoJ), Office for National Statistics (ONS) and Home Office, documenting that

85,000 women and 12,000 men (aged 16–59) experience rape, attempted rape or sexual assault by penetration in England and Wales alone every year.

Thus, the Disciplinary Procedure’s current structuring around the burden of proof entails a systematic silencing primarily of women, as the legalistic standard of proof beyond reasonable doubt it requires is too often totally unattainable for victims, or mediators of procedure within a civic institution, to be able to provide. The Breaking the Silence initiative, largely as a result of the hard work of CUSU Women’s Officers over the past few years, has seen the University promise to take a stand against sexual violence, stating

There is no place for any form of harassment or sexual misconduct at the University of Cambridge. [...] The University will continuously work to improve the prevention, response, support and investigation of all instances of harassment and sexual misconduct; and to enable staff and students to make disclosures without fear of reprisal.2

Reforming the Disciplinary Procedure and committing to the balance of probabilities standard of proof model would be a tangible way of honouring this pledge.

Mr M. D. Kite (CUSU Education Officer, Robinson College, and the General Board):

Deputy Vice-Chancellor, I make these remarks in my capacity as the Education Officer of CUSU, and I am also a member of the General Board and a signatory of the Report.

The existing disciplinary procedure is inadequate by any measure. It is opaque, complicated, and unnecessarily confrontational. It deters victims of misconduct from choosing to report, and causes unnecessary additional trauma to those who do. Though the name ‘disciplinary court’ has gone, our current system persists as a second rate parody of a criminal court, despite having neither the resources nor the powers of one.

We know that there is currently systemic under-reporting, since those who suffer misconduct do not make use of the current procedure. The Disciplinary Committee sits no more than a handful of times a year, yet there were 173 anonymous reports of sexual misconduct in nine months alone last year. The reasons for that are well-understood too: the procedure is hard to follow and opaque, places unnecessary additional burdens on complainants, and fails to properly hold the perpetrators of wrongdoing in our community to account.

The system is also failing those accused of misconduct, whether in cases of sexual misconduct or other disciplinary cases such as plagiarism. For those students, it is not currently sufficiently clear where legal representation is necessary or not, the procedure is difficult and intimidating to navigate, and the appeals process is also hard to access, obscure and very slow.

The new procedure replaces the adversarial model which is the cause of so many of these problems with an inquisitorial one in which a Student Disciplinary Officer will undertake a neutral investigation of alleged breaches of the Rules of Behaviour. The new procedure will ensure that person has the skills and experience to investigate reports thoroughly and also sensitively, so that a Discipline Committee has the best evidence possible with which to make its decision.

It is clearer and more straightforward in its process and language, with simple rights of appeal and complaint for both respondents and complainants at every stage of the process. Those, combined with student representation at the level of the Discipline Committee, provide a more robust protection of the rights of students than is currently the case.

The new system would also provide greater consistency, with behaviour that could also result in other civil proceedings such as Fitness to Practise being treated consistently by the University student disciplinary procedure and those processes.

The revised procedure is necessary to deal with the failings of the current system (and indeed to ensure that the University is compliant), but it is not sufficient. In order to properly deal with student misconduct in a way that protects all students’ rights and safety, the University must also choose to revise the standard of proof applied in the procedure.

The appropriate standard of proof for an inquisitorial hearing in the civil sphere is the balance of probabilities. That standard is proportionate to the limited investigative powers that the University has and will continue to have, and proportionate as well to the penalties that the process can impose. It would put us in line with every other university in the country, and with professional bodies that run disciplinary hearings.

And most importantly it recognises and communicates that the University’s student disciplinary procedure is not a criminal court, because the University is not the government. This is an internal civil procedure, and it should therefore adopt the civil standard of proof.

The argument has been made that for the University to investigate serious allegations under the proposed disciplinary procedure, or indeed at all, would be an abuse of process, since those allegations might also be considered criminally under a different process and standard of proof. To consider them in non-criminal terms, the argument goes, would be to act in conflict with the criminal justice system. But whether behaviour was misconduct by the University’s rules is independent of whether it might be a criminal offence – behaviour can be one or the other, neither, or both. The two processes can run without conflict.

In fact, my interpretation of the counsel to the University is that it would be inappropriate for the University not to consider those serious cases. To do so could lead to the perverse situation where the institutional protection offered to students who are victims of minor misconduct is greater than that afforded to the victims of more serious wrongdoing. In cases of sexual misconduct that could even amount to indirect discrimination by sex.

The current procedure is inadequate. Fixing it means moving to a procedure in which trained officers will neutrally investigate and gather all available evidence. A procedure which is set out in straightforward language and with clear timescales, with an accessible right of appeal for all parties. A procedure that properly recognises its position in dealing with matters internal to the University in non-criminal terms.

I urge the members of the Regent House to vote in the upcoming Ballot, and to give their strong support for the proposals under Discussion today.

Ms S. Swain (incoming CUSU-GU Welfare and Rights Officer, and Churchill College):

Deputy Vice-Chancellor, I would like to speak today to the concerns that changing the standard of proof would be detrimental for the University.

These concerns seem to rest under the assumption that the criminal standard of proof is a higher and therefore better standard of proof for investigating sexual misconduct, a concern that is connected to the influence of the now 25-year-old Zellick Report. It is true that the standard of proof in criminal cases ‘beyond reasonable doubt’ is a very high standard, which requires resources that only a criminal court of law has access to in an appropriate timescale, such as forensic analysis and cross-referencing of witnesses. The criminal standard of proof, which is what this University currently uses in its student disciplinary procedure, is appropriate for a court of law. It is not, however, considered best practice for a civil case such as a University’s student disciplinary procedure. The civil standard of proof – the balance of probabilities – is therefore the ‘better’ standard of proof for our context, although it is crude to compare them in a system of ranking one as better or worse. In short, the criminal standard of proof beyond reasonable doubt is appropriate for a criminal court of law, whereas the civil standard of proof on the balance of probabilities is considered best practice for civil cases by the OIA.

The balance of probabilities is used by every other higher education provider in the UK. This includes Queen Mary University, where the head of the taskforce that produced the Zellick Report, Graham Zellick, was Principal, as well as King’s College London (KCL), where the student case which influenced the Zellick Report occurred. The Zellick Report was drafted in the aftermath of a student from KCL being suspended following an accusation of rape by another student in 1992. The case was taken to court and the respondent was found not guilty. The respondent student was then able to successfully bring a legal challenge against KCL. The Zellick Report is a main factor in why so many cases of sexual harassment in this University were not reported – because the 1994 Zellick Report advised that ‘internal action for rape and sexual assault is out of the question, regardless of whether or not the victim has any intention of reporting to the police or the preference for either party of an internal investigation’ (s.12–14). The intention of this recommendation was to protect the University, yet the Zellick Report is now out of date. This was the main finding of the NUS’ 2015 briefing on the Zellick Report, which cites the 1998 Human Rights Act and the 2010 Equality Act as important factors in changing our attitude towards investigating sexual misconduct. To not investigate a case of sexual misconduct in 2019 could constitute unlawful discrimination based on a protected characteristic such as sex, disability or race.

For a civil disciplinary procedure, such as in a place of employment or a place of study, using the balance of probabilities is considered best practice by the Office of the Independent Adjudicator, as it enables the process to be completed in an appropriate amount of time by dedicated professionals, rather than on an ad hoc basis by already overstretched faculty staff. This is why I ask the members of the Regent House to vote yes to approving the reforms to the Student Disciplinary Procedure and yes to adopting the balance of probabilities as the standard of proof to make sure that our disciplinary procedures are up to date and fit for purpose.

Mr S. A. Ahmed (CUSU Access and Funding Officer, and Christ’s College):

Deputy Vice-Chancellor, as the Access and Funding Officer for the Students’ Union, it is my job to encourage students, from all backgrounds, to apply to university and in particular to our very own institution, that many of us recognise as home.

I am however, often faced with a moral dilemma. Can I in good faith tell those from the most marginalised backgrounds in society to apply to a university in which we have a disciplinary procedure unfit for purpose, knowing full well that they disproportionately experience discriminatory misconduct.

My role is not solely about increasing the number of students from these backgrounds, but to ensure that they are able to fully benefit from the educational system we have to offer, and this means pursuing structural changes that would seek to address various issues those from the most disadvantaged backgrounds may face, whilst here.

We have seen over the past few weeks, when writing the Access and Participation Plan that academic attainment gaps exist for various groups, and these can centre around the dynamics that exist within our university structure, both within teaching, learning and more widely.

When women and those from ethnic minorities experience discriminatory misconduct in the course of their education, they are often left unable to take things further due to a lack of faith in the current system, as well as, often, a lack of evidence that would prove beyond reasonable doubt that they had indeed been victims of discriminatory misconduct. The proposed reform to the standard of proof would mitigate this barrier, with the other proposed reforms increasing support and decreasing the negative impact on wellbeing, and on students’ ability to engage fully in their education, that accessing the formal procedure currently has.

Initiatives such as the Breaking the Silence anonymous reporting tool and the End Everyday Racism project have shown us the sheer scale of the problem. Implementing the proposed reforms would show that we are truly committed to a solution which would seek to support students once here, should they need it. As Access Officer, if these reforms were implemented, I – and others involved in outreach work – would feel far more confident in whole-heartedly recommending the University of Cambridge to its potential applicants, so they too, can call it home.

Ms J. O’Brien (incoming CUSU Disabled Students’ Officer, and Trinity Hall):

Deputy Vice-Chancellor, we have heard many compelling submissions both today and in the past outlining the arguments in support of reforming the disciplinary procedure, based on the welfare of our students. Whilst I agree wholeheartedly with these arguments, I instead plan to focus on the compelling legal, practical and procedural incentives for moving to a more sensible standard of proof.

There have been concerns raised that adopting a lower standard of proof – that of a balance of probabilities – would be unjust. For example, that it might lead to the damage of University members’ reputation on less evidence. However, the courts of this country adopt this burden of proof in all civil cases – in cases where there are likely to be far more serious consequences than mere reputation. In this country you can lose your fortune, home and children all on the basis of the balance of probabilities.

I would also highlight that with the new Appeals Committee, the Respondent has the right to appeal against decisions of the Discipline Committee if the procedures were not followed properly, the decision was unreasonable, new evidence has become available, there was a bias or a reasonable perception of bias, or the penalty was disproportionate/not permitted. This provides a clear and effective remedy to those who feel they have been treated unfairly by the new procedure.

Beyond this, I would like to outline several reasons why a criminal standard of proof is inappropriate in internal University disciplinary procedures. The substitute ‘prosecution’ representing the complainant does not have the prerequisite powers, such as that the police have, to be able to effectively generate enough evidence to prove allegations beyond reasonable doubt. The University has no mandatory DNA tests or search warrants available to it, nor can ‘witnesses’ incriminate themselves by providing false evidence. It is therefore illogical to expect that such a stringent evidentiary burden can be met.

The University disciplinary procedure is not an alternative to a criminal court. It cannot convict people of a crime, or find them guilty of any offence. It exists merely to determine if there has been a breach of the University’s own Rules of Behaviour. It may impose civil sanctions alone, for what is a breach of its own civil policies. It is vital that the University has its own procedure to deal with breaches of its own rules, and this has been clearly supported by the guidance issued by Universities UK in 2016. The fact that a criminal prosecution could take place concerning the same behaviour does not change this. The University should continue to encourage survivors to seek criminal justice alongside its internal procedure where appropriate.

I believe it is therefore common sense that this tradition is put aside, and that we adopt a civil standard of proof for a civil procedure with civil penalties.

Mr E. P. Hawkins (King’s College):

Deputy Vice-Chancellor, I’d like to urge the 5,670 members of the Regent House to vote yes on adopting the reforms, and yes on adopting the balance of probabilities as the standard of proof.

Throughout its market and public relations the University presents itself as a global social leader and this includes the University’s rhetoric around combating sexual violence, cases of student harassment and sexual misconduct.

As stated on the Breaking the Silence website:

There is no place for any form of harassment or sexual misconduct at the University of Cambridge. The University is dedicated to creating and maintaining a safe, welcoming, inclusive and diverse community that nurtures a culture of mutual respect and consideration. All members of the University community must be able to thrive within their roles without fear of sexual violence, abuse, coercive behaviour or related misconduct.

The Breaking the Silence initiative was advertised widely through the University’s social media channels and reported on in national media outlets. This marketing and positioning as a social leader, on sexual misconduct and other issues, leads to positive reputational benefits – it allows the University to continue to attract applications from students and staff across the world and it means the University gains valuable research and commercial contracts.

However, this marketing is fundamentally at odds with a disciplinary procedure that requires proof ‘beyond reasonable doubt’ – a criminal standard of proof. This creates a sharp disjuncture between the reasons that individuals and groups come to the University of Cambridge and their experience whilst they are here.

This discrepancy, between marketing and reality, also deeply undermines and contradicts the positive steps the University is taking on social issues. The words of the Breaking the Silence initiative ring hollow in light of a disciplinary procedure that means there is a place for harassment and sexual misconduct at the University of Cambridge. They ring hollow in light of a disciplinary procedure that erodes the safe, welcoming, inclusive and diverse community the University claims it is dedicated to creating and maintaining. They ring hollow in light of a disciplinary procedure that means that not all members of the University community are able to thrive within their roles without fear of sexual violence, abuse, coercive behaviour or related misconduct. The University must adopt the reforms and the balance of probabilities as the standard of proof to make this marketing a reality.

Ms R. E. Bourne (King’s College):

Deputy Vice-Chancellor, I speak to you today representing my own views, and on behalf of King’s College student union, for which I am the women and non-binary officer.

The criminal justice system has legal, scientific, economic and human resources to investigate cases of sexual misconduct. Still, the national conviction rates for sexual misconduct are significantly lower than rates for other crimes suggesting that this procedure is failing survivors. As a civil institution, our University lacks these resources, yet despite this it continues to act like a criminal law court by using the criminal standard of proof. We are all mistaken if we believe this is justice. Without the same resources as the criminal justice system, it follows that evidence will inevitably be missed. And yet the current procedure demands the same amount of proof as the criminal justice system. By picking and choosing parts of the criminal justice system, this University has established more barriers to justice for cases of sexual misconduct than the criminal justice system itself. The current system is set up to fail survivors.

This is why we ask for this procedure to be reconsidered. By establishing independent investigating officers, as well as independent student discipline officers, more resources would be available for an investigation into allegations of misconduct. This will increase the likelihood that as much proof as possible is found to support both the claimant and the defendant, making the system fairer for all. Yet even with these positions in place, the University will continue to be significantly lacking in powers to investigate relative to the powers that the criminal justice system has. Accordingly, miscarriages of justice will continue until the civil standard of proof is adopted.

Cambridge University is impressively resilient to some forms of change – the gowns, the Latin graces, the hats. This is something that makes the University so special; it is deeply rooted in its own rich history. Yet remaining resilient to change with regards to the standard of proof, against the legal advice of bodies such as Universities UK would be a moral failing. Recognising the need to change is not recognising that we were wrong – it is recognising that the world is changing. That some people are still subjected to abuses more than. It is listening to the new voices of those who are beginning to speak out about injustices and shifting our stance in the face of new evidence, as our academics are constantly teaching their students to do. It is not about declaring that we are wrong, it is about how to change to be more right.

Mx M. A. B. Fox (Jesus College):

Deputy Vice-Chancellor, in the five years since this process officially began, I am sure the members of the Regent House have often heard the pleas of the student body, its representatives, and its allies to reform the disciplinary procedures of this University. I am sure that the members understand the injustice that the current system represents and wish to help us in our efforts to change this. However, this afternoon I would like to address those of the Regent House who are not convinced that the urgency of ensuring that every victim of violence, harassment, or misconduct in this University receives the basic access to fair treatment and justice that is due them justifies these changes.

Cambridge is the only university in this country to require the criminal standard of proof – that accusations be proven ‘beyond reasonable doubt’ – in its internal disciplinary procedures. Perhaps this is a source of pride for some: ‘a higher standard of proof for a higher standard of university’. This is, unfortunately, short-sighted. Proof ‘beyond reasonable doubt’ is a tool designed for use in criminal courts, which, as the lawyers present will doubtless inform you, the University of Cambridge is not.

In a criminal court, where severe punishment – even incarceration – might be on the line, the criminal standard of proof serves as a protection against misdirected violence. The kinds of punishment leverageable by a university disciplinary process are simply not comparable. As the 2016 Universities UK report ‘Guidance For Higher Education Institutions: How To Handle Alleged Student Misconduct Which May Also Constitute A Criminal Offence’ clearly states, ‘the internal disciplinary process is a civil matter’.

The resources involved are also completely different. We might well expect a criminal investigation to be able to prove a case ‘beyond reasonable doubt’, but a university disciplinary procedure is not a criminal investigation, and neither the defendant nor accuser involved has the same kind of resources. As is made clear in the UUK report, a university procedure is not equivalent to a criminal case, and for criminal punishments to be applied, a criminal case would have to be won, using the criminal standard of proof

In civil proceedings where the stakes are more comparable, a disciplinary panel would require proof ‘on the balance of probabilities’. Much as exile from this particular university might seem like a fate worse than prison to some, this is the case we should take our lead from: rigorous, yes – the ‘balance of probabilities’ is hardly an untested standard – but fair to both sides.

There is simply no procedural argument for keeping the regulations as they stand. And, as I know the members of the Regent House need no convincing that this University should be a safe, fair, and accountable environment for all its members, I am sure they are already convinced of the moral imperative to reform this system.

This University has often been slow to change, and this case demonstrates once again how it drags behind every other university in the country on issues of justice and representation for its own community. The vote next month is neither an experiment, nor should it be controversial. While I am certain that the members need no convincing, I would implore them nonetheless to do right by this University and its community, and vote for these changes.

Dr S. J. Cowley (Faculty of Mathematics, and the University Council):

Deputy Vice-Chancellor, I am a member of the Council but I speak in a personal capacity. I was one of two members of the Council who did not sign this Report.

This is much to be welcomed in this student disciplinary framework. For the most part it is an improvement on the existing procedure, not in the least because of a more precise specification of procedure.

The discussion of these proposals to date has mainly, if understandably, concentrated on cases of sexual misconduct. However, the framework will also cover other offences, including physical misconduct, abusive behaviour and ‘any form of academic misconduct’. Regarding the latter, in April last year The Guardian reported that ‘Cheating at UK’s top universities soars by 40%’.1 I would be surprised if Cambridge is immune. Clearly the University needs a framework that is just, but it also needs one that is workable, and one with which those concerned will engage.

During my time in Cambridge I have had the misfortune to have to deal with nearly 20 cases of ‘unfair means’, now termed ‘academic misconduct’. The University’s procedures have been confusing and in need of reform. The Proctors have almost always been the source of good counsel, while advice I have received from the Old Schools has varied from excellent (in the case of Nicholas Branson)2, to plain wrong (from someone several years ago who I will not name but who apparently could not understand their own documentation). Each case has required days of preparation, in odd cases extending to weeks. Each time a suspected case has been discovered, I have asked, is it worth it?

All the cases I have been involved with have concerned ‘poor scholarship’ and have been dealt with by an ‘Investigative Meeting’, or by the more recently introduced ‘Examination Interview’. In such procedures no penalty can be imposed to reflect disciplinary aspects of plagiarism, even if the student admits to the offence. Sometimes the effort requested is disproportionate to the marks removed. For instances, one year a student drew the attention of the Faculty to a post on Stack Exchange that had clear overlap with a question posted in a continuous assessment project. There was no name on the posting, but other posts included requests for help on Mathematical Tripos example-sheet questions. After some hours of investigation, I clicked on the Google cache of the page and up popped a previous username, indeed the full name of the student. The student accepted that the post was his, but at the end of the Investigative Meeting only one mark (out of hundreds in the grand scheme of things) was deducted. The Faculty was advised by the Proctors not to take the matter further. As an external examiner aptly summarised it in another case: ‘It is clear that the current system does not work well, in that a candidate caught in low-level plagiarism cannot lose’.

Is the framework an improvement? Yes, but it cannot be read in isolation. In parallel with the development of the framework, there is a consultation on the ‘Guidance on procedures for managing plagiarism’; procedures that will supersede Examination Interviews and Investigative Meetings.

•The change from ‘poor scholarship’ into ‘minor breach’ in this guidance is welcome, as a more honest reflection of the cases considered.

•There is an increase in bureaucracy in order to ensure that good practice is followed (although I was relieved to see that Mathematics had already adopted, for the most part, the recommended procedural guidelines).

•The number attending an Investigation Meeting has increased: the candidate can now be supported by a [legal] representative and (rather than or) a Tutor/Director of Studies, while a Proctor has been replaced by a note taker and a member of OSCCA. In the current climate, the inclusion of the option of a legal representative is understandable, but might the member of OSCCA not take notes? Also, given that Investigation Meetings tend to be concentrated in the examination period, might requiring ‘a member of OSCCA’ be unduly restrictive? Might the description be widened to include other members of the University able to provide appropriate procedural advice?

•As before, the outcome of the meeting is such that any adjustment to the mark awarded should ‘reflect only the candidate’s own original work’, but how tightly is that to be interpreted? If a tight interpretation is taken, then after a very bureaucratic and time-consuming procedure, only one mark would be deducted from the example that I have given above. I am not sure it is worth it. If more than one mark were to be deducted, then the disciplinary framework would need to be invoked. Moreover, as far as I can tell a minor sanction could not increase the deduction, and hence there would be a need to proceed to a Discipline Committee, with all the extra bureaucracy. Might an examiner wonder whether it was worth it compared with, say, a couple of extra days/weeks of research (which another part of the University might view as a better investment of time)?

Might I propose that the marks that can be deducted as the outcome of an Investigation Meeting not be so tightly drawn if agreed to by the candidate (after consultation with his or her representative and/or Tutor/Director of Studies)? My experience is that some students recognise what they have done is wrong, and would be content with an early and just resolution. In one case a student who had copied from his friends put his hand up immediately, said that he would accept a penalty, but asked for his friends to retain their marks. He would have been content with a zero mark (which would have included a punitive element since some of the work was clearly his own). In the end the ‘Investigative Meeting’ took due account of the admission, the remorse and the insight into the impact of the breach. There was no need to take the matter further; I would hope that could be the case within the new regime. To that end a moderate punitive element should be possible if agreed to by the candidate.

If that suggestion goes too far, then might the Chair of Examiners be able to recommend an agreed moderate punitive element to the Student Discipline Officer on referral to OSCCA, and the Student Discipline Officer have the power to confirm the sanction? That would require an extension to the minor sanctions or measures available under paragraph 5.4.

Unfortunately not all students are as willing to admit to an offence as the one to whom I have just referred. In many of the cases in which I have been involved, it has been crucial that the questioning of the candidate on technical issues was done by a mathematician. That is still going to be possible in an Investigation Meeting, but not as far as I can tell in the case of a Discipline Committee. This is a short-coming. Further, what credence will be placed by the Discipline Committee on the expert opinion of an Examiner? In another of my cases, it was clear to all mathematics Examiners that a case of collusion had occurred. However, the candidates concerned did not admit to an offence, and they were supported by their Tutors and one Director of Studies (of Mathematics). In the end no marks could be deducted, and the Proctor advised that without further evidence the University Advocate would not follow-up the case. However, over the summer one of my colleagues spent days re-examining the evidence. He concluded that the correlation between the students’ codes was 137 standard deviations from the mean, and under one measure of matching the computer codes, the probability that there was no significant overlap was 1.6x10-7. The Examiners were correct that there had been collusion, whether the standard of proof was beyond reasonable doubt, or balance of probabilities, but given the procedure the students had no marks deducted (until they were unwise enough to repeat a similar offence the following year).

If the University is going to take academic misconduct seriously, then it is going to be time-consuming. However, that time should be minimised. Personally I am content using the standard of proof as beyond reasonable doubt, as long as those involved are reasonable, and as long as expert opinion is valued. My final example is the first case of collusion with which I had to deal. To the examiners the collusion was clear cut, but not so to the students nor the Tutor. That changed when it was noted that the hand-writing of one student was on the submitted project of the other. The point I wish to emphasise is that to the mathematicians there was sufficient evidence without the candidates having shot themselves in their feet. The Tutor subsequently apologised. It is crucial that the Discipline Committees have sufficiently expert members that they understand the technicalities in the case of academic misconduct so that know when expert opinion can be trusted.

Finally, I wish to return to the standard of proof. Over more than two decades I have found it frustrating to have to prove cases beyond reasonable doubt. However, if the deduction of marks is going to affect a student’s class (and it has), or worse, then I believe that beyond reasonable doubt is the appropriate standard of proof. A drop from an upper second to a lower second can be life-changing if a job offer depends on the former class.

So should the standard of proof be beyond reasonable doubt for all matters of student discipline? Emphatically no. In the case of sexual misconduct, we have heard extensive evidence that it is crucial that the standard of proof should be the balance of probabilities for safeguarding sanctions required so that the University can fulfil both its duty of care to students, and its responsibilities to their welfare, past, present, and future. However, let me quote from the Faculty of Law submission on the second consultation (my emphasis):

As the Board understands it, this standard [i.e. balance of probabilities] is only and specifically applied in relation to ‘fitness to practice’ adjudications, where manifest safeguarding issues arise that are not relevant in the University context. The Board does not subscribe to the logic that the adoption of a single standard oriented around the balance of probabilities is ‘transparent, consistent and easily understood’. Instances of a safeguarding-related adjudication justifying a lower standard, given particular concerns about future protection of vulnerable persons, are easily distinguishable from other cases adopting a higher standard.

Hence, while I agree that in the case of sexual misconduct the same procedure should be used for students, and there is a need to provide a hierarchy for sanctions in a discipline context, I think that it is also appropriate for there to be a hierarchy as regards the standard of proof. In order that all members of the University can feel safe and supported, the balance of probabilities is appropriate. However, if a student is to have a life-changing sanction applied (as can happen in the case of academic misconduct), then as the Department of Archaeology put it, ‘serious consequences require being sure, which is beyond reasonable doubt’.

I have two further minor points. First, as is clear from the contributions to the consultations and discussions, student discipline is an important issue. Hence, the Student Discipline Procedure should be an Ordinance that requires a Grace in order for it to be amended. It is not appropriate that it is a General Board Regulation that can be amended by fiat of the General Board without wider consultation.

Second, the original version of the Report included:

The Report’s recommendations have been developed with the input of the officers of Cambridge University Students’ Union and the Graduate Union and have been endorsed by the General Board’s Education Committee, the Senior Tutors’ Committee, the University Advocate, and the Proctors.

It now reads:

The Report’s recommendations have been developed with the input of the officers of Cambridge University Students’ Union and the Graduate Union, the Senior Tutors’ Committee, the University Advocate and the Proctors, and have been endorsed by the General Board’s Education Committee.

Why the change? As I understand it the relevant minute of the 15 March 2019 Senior Tutors’ Committee Meeting concludes by stating ‘These concerns meant that the Committee felt unable to endorse the proposals fully at this stage …’. The correction does not note the character of the error in the original version, other than by implicit conclusion, and for that to be possible, the original text should be available, which it is not; it should be.

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History), read by the Deputy Senior Proctor:

Deputy Vice-Chancellor, in many respects these proposals are sensible and an improvement on what has hitherto been the procedure. However, some fundamental matters prompt concerns.

The student is described as ‘registered’ not ‘matriculated’, for the practical reasons that it is now possible to be the first but not the second. Even merely ‘Registered’ students must ‘comply with the Statutes and Ordinances and any rules and procedures established under the Statutes and Ordinances’, but is this a contractual or a ‘membership’ obligation?

The ancient basis of the University’s right to discipline its students lay in the need to maintain good order. Historically that allowed the University to impose rules on its student members without their consent being required. It is now generally accepted that a student has a contract with a University and a contract is a mutual agreement. Cambridge has no written student contract though arguably there is nevertheless an unwritten contract. I would have thought it would be wise to tease the implications out rather carefully before a student challenges the basis of the University’s authority to discipline him or her.

The rules of natural justice are mentioned only once in the Report, with an oddly-chosen ‘for instance’ relating to the right to legal representation. If an ‘inquisitorial model’ is adopted, ‘so that a decision can be made on the evidence included in the Investigating Officer’s report’ etc., how fully will a student be able to test the evidence against him or her under the audi alteram partem rule of natural justice?

If the standard of proof in the student disciplinary procedure is lowered to the ‘balance of probabilities’ will it be only a matter of time before the same change is proposed for academic staff, who at present enjoy the protection of the higher standard, ‘beyond reasonable doubt’?

Ms A. Gunther (Peterhouse), read by the Deputy Senior Proctor:

Deputy Vice-Chancellor, having been the elected Women and Marginalised Genders’ Officer at Peterhouse’s Sexcentenary Club as well as the Women’s Campaign’ LGBT+ Officer, it is more than clear to me from what I experienced in these roles that a reform of the Disciplinary Procedure has to happen. As a representative and first point of contact for women in my College who had experienced sexual harassment and assault, there is only so much I could do for everyone who asked for my help. One of the first things I did in these cases was to point these women to the resources and plans of action they had at their disposal. One of these was the University’s Disciplinary Procedure. It is important to remember that students do not access the disciplinary procedure in situations in which this is not absolutely necessary, it is a very drastic measure and no one makes this decision lightly. There are a number of less drastic options that are usually chosen before the disciplinary procedure, including College-level informal conflict resolution, and the majority of Colleges have both informal and formal disciplinary procedures as well.

Of course, as a person hoping for justice and the general betterment of society, it was in my interest that these women would report what had been done to them to stop it from being done again, (either by the same person to the same person, or by the same person to someone else, or by someone else entirely, who might be convinced not to if they saw what disciplinary measures previous offenders had faced). However, the disciplinary procedure as it stands does not encourage women to seek justice; instead, what it does is discourage women who are already scared, hurt and intimidated from stepping forward because it is not written and structured in their favour.

False accusations of rape are incredibly rare as it is, but from my experience of helping people who have experienced sexual assault, I can safely say no one would activate the disciplinary procedure without reasonable grounds to do so – in fact, even people who have more than enough reasons to do so often choose not to because they fear being disbelieved. This is a structural issue which it is the University’s duty to alleviate. Changing the standard of proof to the balance of probabilities does not increase the likelihood of false reports but definitely increases the likelihood of more reports and more safety and more justice within the University. It is the only appropriate choice to make when having people’s dignity, safety and autonomy in mind. A procedure which does not fully trust women who speak about their own abuse does not represent a University which stands behind its students. The needs of people who have been marginalised, harassed or assaulted need to come before the needs of their aggressors and need to be treated with the utmost urgency, gravity and care. Anything else is a sign of blatant disregard for women’s safety and of tolerance of violence within the University.

Dr J. C. Sutliff Sanders (Faculty of Education), read by the Deputy Senior Proctor:

Deputy Vice-Chancellor, I am a University Lecturer in the Faculty of Education. I am also an Equality and Diversity representative to the [Cambridge] University and College Union Executive Committee.

I want to speak today in favour of both votes, thus, approving Recommendations I, II and III.

The UCU Executive Committee have considered these motions at lengths, and although we understand resistance to changing the disciplinary policy, we see benefits of the change clearly outweighing risks.

Briefly, these are the reasons that we see as most compelling for supporting this change.

First, the Higher Education field has overwhelmingly shifted in favour of the ‘balance of probabilities’ model. For Cambridge to follow suit and make a similar change is not a startling move but one that comes frankly embarrassingly late.

Second, the judgements found in the University are not criminal and therefore have no obligation to follow a criminal justice model. They are in fact civil and therefore ought to follow the ‘balance of probabilities’ model more common in civil cases.

Third, we know that the current system is not working. Whatever sentimentality we might have for a system with which we are familiar, we must recognise that the students are not being served by it. The system seems to play a role, in fact, in discouraging reporting of sexual assault. It seems to be under-convicting in part because of the standard it uses, a standard that, again, is not appropriate to the civil cases heard. Too, the system is maintaining situations in which survivors of abuse have to suffer the presence and continued attentions of their abusers. I cannot emphasise this point enough: our current system is failing our students, and a vote against the proposed Recommendations is a vote in favour of continuing to fail our students.

Finally, the new standard fits strategically and philosophically with the University’s new Breaking the Silence campaign. That campaign encourages anonymous reporting rather than reporting that includes investigation and production of evidence that could stand up in criminal court. The new campaign has been dramatically successful in helping the University spot patterns of abuse and helping survivors feel that they have been heard.

In summary, our current system is failing. It is hurting our students. The proposed changes will extend the new and impressively successful strategies the University has been deploying with excellent results.

Therefore, I urge Regent House to vote yes on Recommendations I, II and III.

Dr T. Page (Department of Sociology), read by the Junior Proctor:

Deputy Vice-Chancellor, I am a Lecturer in the Department of Sociology at the University of Cambridge.

I support the revisions to the Disciplinary Procedure and to changing the standard of proof used when making determinations under this procedure to be on the balance of probabilities, and urge the Regent House to vote yes to these proposals. This is important for all cases of student behaviour that may violate the prescribed Rules of Behaviour, and especially in relation to forms of discrimination experienced by students including sexual misconduct, gender-based violence and racism. I conduct research into sexual misconduct in higher education and these changes are critical to ensuring that sexual violence is reported, investigated and prevented, and that there is fair process for students.

Sexual misconduct is a significant and ongoing issue in UK universities and has become a key focus of Universities UK since its 2016 ‘Changing the culture’ Report.1 Through my research organisation, The 1752 Group, which addresses staff-to-student sexual misconduct in higher education, I am working with UUK as a member of its advisory group to develop new national guidance on staff sexual misconduct, and my colleagues and I have developed guidelines on investigation and disciplinary procedures in this area through a partnership with McAllister Olivarius, a law firm specialising in sexual violence. The same principles for disciplinary cases apply to student-to-student cases.

In the most recent university-wide consultation, 86% of respondents (staff and students) were in favour of supporting the balance of probabilities as the standard of proof. These proposed changes will bring the University of Cambridge in line with both UUK guidelines and the Office of the Independent Adjudicator’s Good Practice Framework.2 This ensures Cambridge students have access to student disciplinary procedures that are fair for all and are best practice in the sector, and that the University fulfils its obligations under the Equality Act 2010.

I have had both students and staff come to me with cases of student and staff sexual misconduct, who refuse to report to the University because of fear of retribution, concern over the impact that using the University system will have on their studies and career, and that they won’t be believed.

In my research, few students report instances of power-based misconduct – whether it be from students or staff. It is critical that the University understands the nature of this particular violence. Sexual and gender-based violence, is often not believed, and it can be difficult to provide acceptable forms of proof, especially with intimate violence. It takes place in private spaces, that make it difficult for students to prove ‘beyond reasonable doubt’ that forms of violence have occurred, especially when relations change over time.

But it also takes place in public – students at this institution are subjected to racism, sexism, transphobia, Islamophobia, forms of ableism, and are discouraged from reporting their experiences, but also from articulating their experiences as being real and valid. Having a disciplinary procedure that requires the same standard as a criminal case is sending a clear message to students not to break the silence but to remain silent.

My research shows how the process for reporting of violence can be just as traumatic as the actions themselves at times. While the University has addressed its reporting procedure, it urgently needs to update its process for investigating and disciplining students. From the results of my research, this is where institutions continue to fail students. The vote to change the disciplinary procedure and the standard of proof will help to change this.

Right now, it is very confusing for students. Sector guidance is that universities will deal with allegations of misconduct as potential breaches of discipline and not as criminal offences. Sector guidance is that the standard of proof should be on the balance of probabilities. And yet at Cambridge, due to the current standard of proof required, the University is treating allegations of misconduct as criminal offenses, without having the authority to name these as a particular crime, or instil criminal punishments.

There are key principles that universities should be fulfilling in disciplinary cases for student-to-student sexual misconduct:

•The ability for students to report sexual misconduct without fear of punishment, disadvantage or retribution.

•Access to procedures that ensure this report is recorded, listened to and taken seriously – this means that universities need to be survivor-centred in their approach. Research shows that students do not report the vast majority of sexual violence that occurs, and this occurs due to a lack of trust in their institution’s procedures and commitment to addressing discrimination and violence. The University of Cambridge can work to instil trust through changing its disciplinary procedures and standard of proof.

•A thorough and transparent investigation of reports must be conducted.

•The provision of ongoing support for students who have experienced sexual misconduct and other forms of discrimination and violence.

•Risk assessments that analyse the risk of the reported behaviour not only to the victim/survivor, but to other students, and to take action to protect students.

•Support that ensures the student who is reporting the behaviour can continue their studies.

•Trained staff who understand University procedures and the trauma of sexual violence.

•Regular communication with all parties.

•Appropriate sanctions and punishments that send a clear message to students as to the culture of the University of Cambridge, and that any form of discrimination and violence will not be tolerated.

The revised Disciplinary Procedures go a long way to achieving these practices, and should be part of a wider process and commitment to prevent behaviour and respond rapidly to sexual violence.

These votes are part of a commitment to ensuring equality of access to education – we know that statistically sexual violence and assault happens to those who identify as female, non-binary and LGBTQ. We also know that students of colour face institutionalised forms of racism on a daily basis at this University. These are all very difficult to prove beyond reasonable doubt. Changing the standard of proof to the balance of probabilities and ensuring robust disciplinary procedures begins to address these issues.

Dr M. R. Wormald (Pembroke College, the University Council and the General Board), read by the Junior Proctor:

Deputy Vice-Chancellor, I should begin by declaring an interest in this Report, and by indicating the experiences that have made me a strong supporter of the revisions to the student disciplinary procedures it proposes, and to the change in the standard of proof it proposes. I was for sixteen years a Senior Tutor; nearer to the end of my term of office than its beginning a number of students disclosed sexual misconduct and harassment to me, and I also worked with a number of respondents in these cases. Since becoming Secretary of the Senior Tutors’ Committee in 2016 I have been centrally engaged in developing and administering the Procedure for Student Harassment and Sexual Misconduct, both during and since the Breaking the Silence campaign. I was on the panel that appointed our excellent Sexual Assault and Harassment Advisor, and am a strong supporter of her work, as I am of the decision the University took to introduce a means of anonymous reporting of sexual misconduct and harassment for those who do not feel able to submit a complaint. I also coordinate the Colleges’ pilot, now in its second year, of student bystander training, and with colleagues on the Senior Tutors’ Committee Secretariat I am responsible for training new Tutors. We are convinced we still have work to do, with Colleges, to deliver more effective training for Tutors who have been in post for much longer. I am a member of the panel that since 2017 has reviewed complaints about harassment and sexual misconduct and decided whether they should be referred for specialist investigation, and I sometimes serve as a member of the panels which make recommendations as to whether, after the report from the specialist investigator has been received, the case should be referred to the current court of student discipline. I am a member of the Review Committee on Student Discipline that produced the current report after considering a number of objections received during the consultation. I am a member of University Council. Though I am not a lawyer, I have read Counsel’s advice very carefully.

The adoption of the revised procedures and the shift in the standard of proof will allow the collegiate University to continue to build, as we must, on the very significant progress already made in recognizing the experience and offering appropriate practical support to those students who have felt able to complain of sexual misconduct and harassment, as well as offering appropriate support to the respondents in such cases. Already we have introduced revisions to the Procedure for Student Harassment and Sexual Misconduct in the light of the experience gained, or suffered, by one or more parties, and that of their advisors. This is inevitable. These are extraordinarily difficult cases, in human as well as legal terms.

We must of course manage expectations, and deter unrealistic expectations on behalf of a complainant that we can do more, as an institution, than we can. We continue to refine the way we inform these institutions. It is absolutely right to recognise that the University’s specialist investigation will always fall short of the ability to gather forensic evidence of that kind that external agencies such as Sexual Assault Referral Centres or the police can. And thus in the most serious cases of sexual misconduct, which Counsel confirms the University is right to describe in this way, the chances of bringing a disciplinary case to prosecution via a Student Disciplinary Committee are limited.

But that is not to say that we should not, as a collegiate University that has already adopted the Code of Conduct on Harassment and Sexual Misconduct, continue to register the serious, life-changing impact of these cases. We must do our best to mitigate their impact as we can by a range of practical measures, where both parties will remain students in the collegiate University, for instance by setting conditions to minimize the kind of accidental contact between the parties that, I know from my experience of supporting students, can be intensely traumatic, in some cases leading to intermission or abandonment of a chosen career, for either or both, as well as the invisible psychological scars of an encounter: these can last a lifetime.

As Counsel makes clear, we must support students in the most serious cases as well as in more trivial; not to do so would put us at risk of litigation under Consumer Rights legislation. I endorse the view of the Head of the Office for Student Conduct, Complaints and Appeals that in other less emotive but potentially serious breaches of our rules and codes of conduct, we need a means of responding proportionately and efficiently. Whatever the outcome of a referral of a report to the student discipline committee, and indeed whether or not an investigation is referred, the fact that the procedure exists and is used represents, to all parties, a clear statement of the University’s commitment to the values its rules reflect.

And – speaking, I should emphasise, in a purely personal capacity: I of course respect the huge amount of detailed consideration colleagues continue to give to these matters as we approach October and the moment at which we need to demonstrate our compliance, or reasons why we do not comply with, the OIA good practice guidelines – the University and Colleges should also do their best to protect themselves as well as our students by being as consistent as possible in their response to these difficult cases. They should avoid a proliferation of different regimes and procedures, and instead should have recourse where necessary to, the specialist expertise and experience now available within the University in investigating such matters. Inconsistency, either in terms of instinctual, doubtless well-meaning but potentially traumatising advice given by a Tutor or other advisor, or in terms of disciplinary procedure followed in different parts of the collegiate University, risks undermining the confidence of our student body in these procedures.

I am sure that the range of opinions expressed in support of and against the measures consulted upon makes it right to put this to a ballot. But the fact that so many students and both the Student Unions support the shift in the standard of proof to that adopted in Universities and professional bodies across the United Kingdom and support these regulations is an expression of student opinion we cannot ignore. Not to vote for these changes would be to betray the confidence we need to keep building. It would contradict the principles of recent reforms and undermine the real progress Cambridge has made, with our students, in the past two years towards lasting cultural change.