Procedural Fairness - Office of the Independent Adjudicator
Download
Report
Transcript Procedural Fairness - Office of the Independent Adjudicator
Procedural Fairness
OIA Policy Seminar
Plagiarism & Academic Misconduct
4 November 2009
Susanna Reece
Deputy Adjudicator
1
Natural Justice
Principle of legal philosophy
Applied in Common Law jurisdictions
Incorporates procedural fairness “The duty to act fairly”
2
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
3
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).
4
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”
5
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
6
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
7
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
8
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
9
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.
10
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?
11
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?
12
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
13
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
14