Procedural Fairness

1. Procedural Fairness OIA Policy Seminar Plagiarism & Academic Misconduct 4 November 2009 Susanna Reece Deputy Adjudicator

2. Natural Justice • Principle of legal philosophy • Applied in Common Law jurisdictions • Incorporates procedural fairness - “The duty to act fairly”

3. Natural Justice • Underpinning philosophy: • People are basically good • Persons of good intent should not be harmed • Treat others as you would like to be treated

4. Natural Justice • 2 fundamental principles for a fair trial or valid decision: • "nobody shall be a judge in his own cause",nemo iudex in causa sua: invalidates any judgment where there is bias or conflict of interest or duty; and • "hear the other side", audi alteram partem: giving at least a fair opportunity to present one's case (which may, for example, require access to legal representation).

5. Natural Justice • Reasonableness – a third principle? • The requirement of "reasonableness", defined in the Wednesbury case, is sometimes treated as a further principle of natural justice. • Cf. the OIA approach to “fair and reasonable in all the circumstances”

6. Fairness and the law • Contract – a right to advance warning • Crime – adequate notice or proceedings, including any charges • Higher Education context –contractual issues and quasi-judicial/criminal proceedings

7. Fairness and the law • Plagiarism and intent • Burden of Proof • Is the onus on the student or the University to prove/disprove the charge? • Standard of Proof • Is the evidence being tested on the balance of probabilities (civil standard) • Or beyond reasonable doubt (criminal)? • Healthcare–S112 Health and Social Care Act 2008

8. Fairness and Proceedings • Proceedings should: • Be fair to all parties • Entitle each party to be heard • Entitle each party to ask questions and contradict the evidence of the opponent • Ensure that justice has been seen to be done

9. Fairness and Decisions • Decision makers should: • Declare any personal interest in proceedings • Be unbiased and act in good faith • Not be one of the parties or have an interest in the outcome • Take into account relevant matters, and any extenuating circumstances, and ignore the irrelevant

10. Fairness and Decisions • Is there a duty to give reasons? • Case law that says people should be given reasons for a decision that affects them – need not be lengthy • Findings of fact and opinion • Reasons for the imposition of a penalty • OIA view: good practice to make clear grounds for decisions. Recipient should know basis for any challenge or appeal.

11. OIA examples • Confusion of roles • Instigator of plagiarism allegation chairs a panel to determine outcome / appeal • Fairness to all parties • Two accused – one’s case is heard first and his story is believed. Second student is then found to be the guilty one. Consequences?

12. OIA examples • Do students know what plagiarism is? • Clarity of regulations • Clarity of communication • Consistency of decision making • Across and within departments • Across the HE sector as a whole • Can plagiarism be mitigated?

13. OIA examples • Procedures not followed • Delegated decision-making • Short notice of appeal (2 hours by e-mail!) • “Poor academic practice” substituted – with worse consequences for the student • Delay – what are the consequences? • Anonymised case studies and digest

14. Better Regulation- a way forward? • Five principles of good regulation: • transparent • accountable • proportionate • consistent • targeted – only at cases where action is needed • Better Regulation Executive (BRE) - part of BIS