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Universities' disciplinary procedures need to evolve in light of new guidance on handling alleged serious misconduct by students, says expert

FOCUS: Universities should adapt the way they handle alleged student misconduct that might constitute a criminal offence in light of new guidance that has been issued.21 Oct 2016

The non-statutory guidance (23-page / 4.26MB PDF), drafted by Pinsent Masons, the law firm behind Out-Law.com, and published by Universities UK, represents a significant departure from existing guidelines set out in the 1994 Zellick report, which had been criticised by some as being outdated in places.

Together with the help of a steering group, which contained representatives from institutions and sector bodies, and colleagues at Pinsent Masons, I worked with Universities UK to draft replacement guidelines which are designed to assist universities to appropriately manage the most serious cases of alleged student misconduct. In particular it contains specific recommendations in relation to alleged sexual misconduct.

The Zellick report recommended that universities should not undertake any disciplinary action in relation to alleged misconduct which could also constitute a serious criminal offence. The view taken was that such matters could only be dealt with by the police and so if the victim decided not to report the incident to the police or if the police decided to take no action then that would be an end to the matter. 

In liaising with a broad range of stakeholders, including specialist agencies which advocate on behalf of survivors of sexual violence, we have sought to ensure that the new guidelines provide a framework to assist universities to handle these sensitive and complex cases, whilst ensuring that the rights of the reporting students and the accused students are protected and upheld.

There are several key recommendations in the guidance:

Universities should publish a code of conduct which sets out the types of behaviours that are unacceptable

The code of conduct should make it clear what type of behaviours will amount to a breach of discipline and provide an indication of the types of sanctions that can be imposed on students.

Recognise the potential impact of allegations

It is important to recognise that any allegation of misconduct which may constitute a criminal offence is likely to have an impact on all students involved and therefore it is essential that universities ensure that those students, including the reporting student and the accused student, have access to support, advice and assistance throughout the process.

Consider precautionary measures before an investigation is carried out

Universities should put in place precautionary measures if such action is necessary to ensure that a full and proper investigation can be carried out, either by the police and/or the university, and/or to protect the reporting student, or others, whilst the allegation is being dealt with as part of a criminal process or disciplinary process. 

Precautionary action must be reasonable and proportionate and may include imposing conditions on the accused student.

Maintain a clear distinction between an internal disciplinary process and a criminal process

In short, any criminal process must take priority. Consequently, if the matter is being dealt with under the criminal process, then, save for taking any necessary precautionary action, the internal disciplinary process should be suspended until the criminal process is at an end.

If the matter is not being dealt with under the criminal process or where the criminal process has been concluded then universities should consider whether a breach of discipline appears to have occurred. If the view is that it has, then the matter should be referred for consideration under the institution's internal disciplinary regulations.

Deal only with disciplinary breaches and not criminal offences

When dealing with alleged acts of misconduct which could also constitute a criminal offence under an internal disciplinary procedure, the cases must be dealt with as a breach of discipline and not as a criminal offence. As such, no criminal offences should be referred to when defining unacceptable behaviour.

Build on the guidance

The guidance is designed to act as a framework.  It should be considered to be a starting point for universities and not an exhaustive approach to the handling of what are very sensitive and complex issues. 

Building on the guidance, universities should give further specific consideration to a number of areas, such as the types of behaviour that will constitute a disciplinary offence and ensuring that appropriate training is given to those who will handle these cases, including student support staff, investigators and members of internal disciplinary panels.

Nicola Bradfield is a legal expert in the universities and higher education sector at Pinsent Masons, the law firm behind Out-Law.com.