Transcript Procedural Fairness - Office of the Independent Adjudicator

Procedural Fairness
OIA Policy Seminar
Plagiarism & Academic Misconduct
4 November 2009
Susanna Reece
Deputy Adjudicator
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Natural Justice
 Principle of legal philosophy
 Applied in Common Law jurisdictions
 Incorporates procedural fairness “The duty to act fairly”
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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
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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).
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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”
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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
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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
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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
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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
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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.
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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?
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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?
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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
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Better Regulation-
a way forward?
 Five principles of good regulation:
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transparent
accountable
proportionate
consistent
targeted – only at cases where action is
needed
 Better Regulation Executive (BRE) part of BIS
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