Report of Discussion

Tuesday, 6 December 2016

A Discussion was held in the Senate-House. Pro-Vice-Chancellor Professor Graham Virgo was presiding, with the Registrary’s deputy, the Deputy Senior Proctor, the Senior Pro-Proctor, and eighteen other persons present.

The following Report was discussed:

Joint Report of the Council and the General Board, dated 21 November and 18 November 2016, on the consideration of student complaints of harassment and sexual misconduct (Reporter, 6445, 2016–17, p. 132).

Dame B. M. Stocking (President of Murray Edwards College), read by Dr W. O. Saxton:

Deputy Vice-Chancellor, I would like to speak on behalf of Murray Edwards College in support of the proposals by the Council and General Board on student complaints of harassment and sexual misconduct.

In the three and a half years I have been in office as Head of House, I have been shocked at the level of harassment, student to student, taking place in Cambridge; mainly, though not exclusively, against women. I do recognize that this is similar to other universities in the UK. However, I believe it is vital for the students themselves and for the reputation of the University that proper procedures are in place in Cambridge.

There has been much discussion about where our responsibility lies, and whether the only route for a complaint should be to the police. Of course, extreme care should be taken so as not to jeopardize any investigations being undertaken by the police. However, in many cases, the complainant is unlikely to want to go to the police. In the UK, it is estimated that 90% of women saying they have been raped do not wish to have their case investigated by the police. There is every reason to believe that this would be similar for university students and in fact matches my own experience of students in my College and beyond. It would be entirely wrong to leave young women without internal University procedures for complaint in these circumstances and I believe the procedures have been thought through very carefully.

In Murray Edwards we strongly support the need for a central University resource for investigation, as proposed here. These complaints require to be investigated by those who have the proper training and expertise. Except for very minor concerns, we believe they are best handled at this level rather than within the Colleges. We have experience of a great variety of opinions about the seriousness of particular cases amongst Colleges. We accept that each College will take its own view of whether to use the central resource, but we would encourage our students in Murray Edwards to use the central University resources and procedures, except in the most minor cases.

Even when the procedures are in place, there is much work to be done to change the underlying culture which makes the behaviours seem normal. There is no doubt that there needs to be strong leadership in the University and Colleges. Where we as leaders see unacceptable behaviour we should challenge it and support others who do so. I know that work is going on through other Committees to look at levels of alcohol consumption, which is a key underlying factor. I would also encourage the University to work with nightclubs in Cambridge and with restaurants where ‘Swaps’ take place. I know too that efforts are being made in the University sports clubs. Culture change will not happen quickly but if we work across all these areas we will signal that harassment and sexual misconduct are simply unacceptable and not what we expect of our students in Cambridge.

These draft proposals have our full support.

Ms A. J. W. Sebatindira (CUSU Women’s Officer, and Trinity Hall):

Deputy Vice-Chancellor, sexual harassment and assault are serious and endemic problems in university campuses across the UK. This is not a controversial statement. Much has been said and written about this issue, and Cambridge University is not exempt from it.

The 2014 Cambridge Speaks Out report on sexual harassment on our campus provides a number of worrying statistics. 77% of respondents had experienced sexual harassment, while 28.5% had experienced sexual assault. Over 80% of students across all types of incidences of sexual misconduct did not report the incident. 85% experienced a negative impact on their mental health as a result of these incidents.

The [Cambridge University Students Union] Women’s Campaign has tried to tackle this issue by campaigning, introducing consent workshops across all undergraduate Colleges, and is planning to provide safe spaces for survivors. But the University has a duty to tackle this issue too. Even despite the out-dated and roundly criticized Zellick Report, which suggested otherwise.

So it is really great to see that the University has stepped up to protect its students, and it is vital that this policy goes through.

Students at Cambridge have been campaigning for sexual harassment policies for a number of years now. Mostly their efforts have been directed at individual Colleges. While every College has some sort of policy on bullying or harassment, there is an obvious need for an independent sexual harassment policy which explicitly details what behaviour is unwelcome in our communities and to whom students can turn when things go wrong.

Despite this obvious need, the success of students in calling for such policies has been inconsistent across the Colleges for a variety of reasons. Thus the importance of having a University policy becomes apparent. A broader policy allows for students to be prevented from slipping through the cracks. Moreover, the involvement of trained specialists such as the newly introduced Sexual Harassment and Assault Advisor will ensure that students receive the best possible advice and support as they seek redress through the University system.

The role of an independent Investigator is also welcomed. While the close-knit community that Colleges provide is great in many respects, anecdotal evidence from many students suggests that an investigation carried out by someone wholly removed from the parties of the complaint would be a necessary addition to the current system. In addition to this, the ability of students to report incidents of sexual harassment and assault without necessarily having to go through the complaints procedure will allow the University to collect important data on the true scope of the problem. This will be essential in its continued fight against sexual harassment on campus.

Finally the existence of this policy sends a clear message to all members of the University and those outside of it: that we take the welfare of our students seriously. These guidelines are not an end in themselves, and far more needs to be done to engender a culture here where sexual harassment is not such a plague on our community. But they are a very good place to start.

Dr E. A. O. Freer (Robinson College), read by the Deputy Senior Proctor:

Deputy Vice-Chancellor, I am a member of the panel that provides advice to student members of the University charged with disciplinary offences. This contribution to the discussion has been seen by all the members of that panel. There is general support for the spirit of the points raised. For that reason, it is couched in collective terms. We agree that the fundamental rights of students not to suffer harassment or degradation whilst at university must be protected. However, we are deeply concerned that the mechanism that is being proposed does not offer appropriate protection of the rights of accused students. It must be remembered that such students are innocent until their guilt is proven. We are concerned that the University has lost sight of this fundamental precept of English law.

Cases under Regulation 6 have already been investigated by the Advocate, though no charges have yet been brought. This experience has highlighted the absolute importance of having a procedure that is open and transparent, ensures fairness to all parties, and recognizes the rights of both parties.

There are three particular concerns:

(1) The absence of procedural protection under the University process, in particular, no consideration of the ‘right to silence’;

(2) The absence of qualified criminal lawyers to defend;

(3) The potential for police investigation, and criminal prosecution, to follow after the University process, which only magnifies the above problems.

The key concern we have is the apparent lack of thought that has been given to how the disciplinary process interacts with any police proceedings – para. 3.6 provides that the Head of the Office of Student Conduct, Complaints, and Appeals (OSCCA) will ‘normally’ suspend the internal procedure pending the outcome of criminal proceedings.

When an incident of harassment occurs, it might also amount to a criminal offence. We use the word ‘might’ because Regulation 6 is drawn more widely than the criminal law. As many incidents of harassment could amount to a criminal offence, however, it is important to consider how the University and police routes interact.

It is at this point that there is potential for significant conflict between the two systems.

When a complaint is made about the conduct of a student to the University Advocate (‘UA’), s/he has a statutory duty to investigate it unless there are specific reasons (set out in the Statute) for rejecting it. The first stage of such an investigation is usually an ‘investigative meeting’. This is held with the intention that on hearing the accused’s account in it, the UA can decide whether it is appropriate to bring charges against the accused student.

There is no mention of how matters shall proceed if the accused student refuses to attend such a meeting. At no point is it communicated to the student that they have a choice whether to attend or not, and thus it seems that it is assumed that accused students will be willing to attend such a meeting to assist the UA in deciding whether they should be charged. There are no formal sanctions or adverse inferences detailed for a failure or refusal to engage in this part of the process, although it seems that common sense would require that the entire procedure could not be brought to an effective end by the accused student refusing to attend. Therefore, it seems in this situation the UA would have to simply decide from the account given by the complainant whether there was a sufficiency of evidence to proceed. Likewise if the student does attend, but refuses to give an account (akin to a ‘no comment’ interview in criminal law). Under the criminal law, an accused person has a right of silence. There is no such right recognized by the University, meaning it is unclear whether a student can choose to stay silent (which in itself would subvert the process), and if they do, what the repercussions of this are (in criminal proceedings there would be an adverse inference, for example).

Investigatory meetings are described to accused students as an opportunity for them to give their side of events. They are warned that the Minutes taken at the meeting may be presented as evidence before the Discipline Committee if the matter proceeds. The student is entitled to have someone accompany them to this meeting, and they are advised that the University maintains a panel of people who will accompany the student free-of-charge should they wish (of that panel, two have experience in Regulation 6 cases already). This list is comprised of willing volunteers who are Lecturers and Fellows in Law both in the Faculty and at College level. They receive no payment for acting in this capacity. They are not all criminal law specialists, have received no training to be on the panel, and none (save for one) have any experience of criminal law as practitioners.

What is notable about this meeting is that there is no requirement that it take place with the student having been cautioned – thus the student is not told whether they can stay silent, nor the potential repercussions should they choose to do so. As the meeting Minutes can be used as evidence before the Discipline Committee (who are the tribunal which decides guilt on the charge) it seems fundamentally unsatisfactory that the accused student is not subject to any protections akin to those to which the police must adhere in interview or risk the interview being ruled inadmissible in any subsequent criminal proceedings. There is no entitlement to advance disclosure prior to the meeting, meaning that the accused student is required to give an account ‘blind’. Even the UA might not know the full extent of the allegations as they may not – and certainly are not required to – have taken a full written statement before they commence the investigatory meeting. Thus all the accused student will know will be the date and time of the alleged incident, and the identity of the complainant. They may pick up some notion of the complaint on the basis of the questions asked by the UA, but are not entitled to any disclosure.

Furthermore, if para. 3.6 is not invoked (as it is clear it is at the discretion of the Head of OSCCA) and this meeting takes place at a time when police proceedings are still on-going, it is unclear what possible crossover could occur. Due to the greater time pressure on the police, it may well be that when a complainant reports a matter to both the police and the UA on the same day, the UA is likely to act faster. This means that the investigatory meeting is likely to be held before the accused student has been contacted by the police (indeed, possibly before the accused student even knows that the police had been contacted about the matter).

As someone advising a student in this position, the terrain is decidedly rocky. If they give a full account in the investigatory meeting, that account will be fully minuted, and the accused student allowed to check and sign those minutes, but it will not be subject to audio recording (as required in police interviews) which can be obtained in case of disagreement about what was said. Furthermore, that account is likely to be disclosed to the Crime Prosecution Service (CPS) if police proceedings progress to charge and the student indicates an intention to plead not guilty. It seems likely to us that the Minutes of the investigatory meeting would be sought by the police or the CPS to obtain the accused student’s first account of events. Given that statute allows disclosure of personal information for the purposes of the detection of crime and the prosecution of offenders, it is arguable that the University could lawfully disclose this information to the police or CPS without any court order. If the University were to decline to do so voluntarily, we consider it highly likely that a court would grant an application for an order to produce it.1

Where this account has been given without audio-recording; without any clarity about a right to remain silent (or lack thereof); without any sort of warning such as that required by PACE Code C2 regarding failure to mention relevant facts later relied upon in court, and without the presence of a person who understands criminal procedure and evidence, prejudice is highly likely to occur. The only possible way to maintain fairness in both sets of proceedings is for the UA to stay proceedings pending the outcome of the police proceedings. At such a point as the police decide to take no further action, or there is a conviction (through plea or trial) or an acquittal, then the University proceedings can properly be reinstated and proceed to their conclusion.

Obviously where the complainant is pursuing the disciplinary route instead of making a report to the police there can be no complaint about the UA proceeding straight away. However, thought must be given to two possible scenarios. Firstly, that the matter may be reported to police by others who hear about it, or witnessed it, and secondly what would happen if the complainant felt aggrieved by the outcome of the University process and decided to make a complaint to the police at that stage – or similarly if the police were alerted to the matter by others. Once again, issues of third party disclosure orders loom large. At the very least, we would consider fairness to require any interviewee to be expressly warned before the commencement of an investigative meeting that the confidentiality of what was said within the meeting could not be guaranteed.

In general, however, our concern is that, for now, these newly-introduced disciplinary matters have been contorted and shoe-horned into procedures designed only for academic misconduct. The process is consequently desperately ill-equipped to deal with the needs of complainants, and also the needs of the respondents. As is returned to below, it cannot be assumed that accused students will not suffer as a result of such proceedings, even if they are not subsequently charged or found guilty. The regulations give no guidance at all to the UA on the procedure to follow, or how the disciplinary matters may interact with police matters.

Most young people facing charges in an internal disciplinary procedure will have no experience of being subjected to either criminal or disciplinary systems. The punishments available at Cambridge include the ending of their membership of the University, and consequently their right to study here. Being accused of harassment or sexual misconduct carries huge stress and stigma regardless of the outcome.

It is crucial that students who have been subjected to sexual misconduct or harassment are fully supported and have access to a formalized system for reporting the matter if they wish to do so. We owe a responsibility to those students to investigate their complaints properly. However, we are concerned that the specific ways in which the University has decided to do this risk demonizing the accused students, subjecting them to a potentially unfair, ‘hit and miss’ process without knowledgeable representation and potential clashes with police matters when the disciplinary outcome can still be very serious. We also owe a duty to them to deal with them fairly, and on the basis that they are innocent until proven otherwise. We must not lose sight of the fact that all of these processes usually involve young people who are in times of great transition and need to be dealt with sensitively and fairly, whether they are the complainant or the respondent. Whatever pitfalls might be perceived in the criminal justice process (and we do not seek to suggest that there are not many) there are some matters that internal processes simply are not appropriate to resolve, and we cannot expect them to fill gaps perceived in the criminal justice system.

Dr M. R. Wormald (Pembroke College), read by the Senior Pro-Proctor:

Deputy Vice-Chancellor, I welcome this new Procedure for handling student complaints of student harassment and sexual misconduct. As a Senior Tutor I am well aware that this type of behaviour is happening, both from what I have heard from colleagues and from my own experiences of students disclosing their experiences directly to me. We have a responsibility to make it clear to our students that harassment and sexual misconduct are not acceptable and a duty to respond to issues as they arise to provide students with a safe environment within which to study.

This Procedure is one part of the journey; it allows students to be confident that we will consider complaints of this nature seriously, fairly, and transparently. However, the critical change that needs to come about is to the wider culture across the University and Colleges. Junior and Middle Common Rooms, welfare representatives, sports clubs, and other societies all have their part to play, in conjunction with College authorities, in raising awareness of the seriousness of the consequences of sexual harassment and sexual misconduct for both victim and perpetrator; our aim has to be that as a result of bystander training and other initiatives the incidence of such behaviour is reduced. But we also need to respond appropriately when harassment and sexual misconduct occurs. Barriers to reporting must be removed and our students need to understand that any behaviour of this nature will not be tolerated in the collegiate University. We still have some way to travel before our University community is a place where all can learn in a safe environment; this Procedure is a critical step forward and I am pleased to support it.

Professor Dame A. M. Donald (Master of Churchill College, and Department of Physics), read by the Senior Pro-Proctor:

Deputy Vice-Chancellor, I would like to express my support for the University as it begins, through this Report, to tackle issues in our culture that lead to a less than healthy environment for many people studying and working here. It deals solely with harassment and sexual misconduct between students, via a sensible and practical, non-disciplinary procedure. The issues are clearly much wider and will need continued focus and consideration. Nevertheless, this is an important step forward. Churchill College, through its Council, has already begun discussions about how our own internal procedures can be made more robust and to mesh smoothly with the University recommendations. We believe that any less than a zero-tolerance approach towards sexual harassment, including between students, is unacceptable. Nor do we think we can or should leave tackling such matters solely to the courts. Our students, like our employees, should adhere to acceptable norms of behaviour in respect of harassment and sexual misconduct. If they choose not to, other students who suffer in consequence should have access to means of support and redress.

As the University’s former Gender Equality Champion as well as current Master of Churchill College, I am aware that too often there are examples of the sorts of issues the Report deals with that cause stress, distress, and lasting damage to members of the University. The recent Universities UK report has highlighted that this is a national phenomenon. It is important that we are not complacent about the issues locally but collectively face up to our responsibilities and set in train a re-evaluation of our values and our culture. Future and current generations of students need to have confidence that our processes are fair and transparent.