Eleanor Laws KC appeared on BBC Radio 4’s Woman’s Hour today to respond to concerns raised by academics published by The Guardian about the fact that students facing serious sexual allegations within university disciplinary proceedings, are engaging lawyers to assist them.
Complainants who attend university are increasingly turning to university disciplinary proceedings to deal with sexual allegations instead of going to the police. Each university has a separate procedure, which has traditionally dealt with complaints of plagiarism, disruptive behaviour and the like. However, universities are increasingly being required to make findings of fact about what is in effect an allegation of serious sexual offending and whether the accused should remain at the university.
The recent High Court case of AB v XYZ  EWHC 1162 (KB) has revealed a repeated misunderstanding by one particular university about how to conduct these proceedings, assess witness evidence and deal with the complaint in a fair manner to both sides.
The Guardian article covers the fact that some academics involved in the process wish to stop an accused person engaging legal representation to help them navigate the process. The suggestion that such legal representation creates an unfairness is bold and demonstrates a lack of understanding of their own guidance and responsibilities in ensuring that both sides are treated fairly. Universities are specifically required to ensure that a student accused of a serious sexual “mis demeanour” knows that they may be entitled to legal representation at the hearing.
Is there a problem with a process which recruits panel members from a pool of individuals who are connected to the same university as the accused and accuser? It is not difficult to see how a University Chancellor who has come under serious criticism about not having taken sexual allegations seriously enough, may not have the skills and motivation to assess the reliability of a complaint in a fair and independent manner.
Whether investigators and panel members are properly equipped to deal with such allegations is an important issue for both the accused and the accuser. Investigators are of variable quality and panel members are often part-time volunteers who may have little understanding of how to handle a vulnerable and traumatised witness, nor any idea as to how to assess the reliability of their account. Furthermore, imprecise questioning and note taking of what is said by the complainant and the accused, can have serious consequences if there is a later criminal investigation.
Additionally, concerns have been raised about the lack of uniformity of approach from one college to the next, with some universities employing amateurish investigators, and conducting aggressive and unfair final hearings.
Attending a disciplinary hearing in order to face questioning about what is in effect an allegation of rape, and which could lead to a criminal investigation, is a terrifying prospect.
If, after the hearing, the accused student is asked to leave, he does so under a cloud of judgement, without the allegations having been properly proven. This can have devastating consequences.
Accused students and their parents will know little about this whole process until the accused student receives a letter of complaint. No one considers that they themselves, or in the case of the parents, that their child, could end up on the wrong side of this process.
It should not be difficult for those tasked with dealing with these complaints to see why they are required to ensure that both parties are dealt with fairly and are able to engage legal representation, if necessary.
Should universities be investigating and acting as Judge and Jury in cases involving serious criminal allegations?
Listen to the episode of Woman’s Hour here.
Read The Guardian article here.