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Should I be represented by a solicitor in a student misconduct matter?

Whilst at university students may find themselves being investigated by the university for any conduct that breaches the university’s policies or procedures. There are several types of misconduct that universities may wish to investigate, and these include both academic and non-academic misconduct. Examples include:

Non- academic

Physical – assaulting or threatening assault
Sexual assault
Behavioural – abuse or threats to another person, bullying, harassment, discrimination
Relating to property – causing damage to property, inappropriate use of premises, misuse of equipment
Illegal possession e.g. drugs or weapons
Reputational damage
Convictions – receiving a criminal conviction whilst being a student and failing to disclose the conviction to the University

Academic

Plagiarism – use of another’s work and passing off as own
Commissioning – arranging another or company to do work for you and passing off as own (positive instruction)
Collusion
Falsification of data
Personification

Whether a student can be legally represented at a disciplinary hearing is a question which was raised in AB -v- The University of XYZ [2020] EWHC 206 (QB). In this case, the court considered whether a student has the right to legal representation at a disciplinary hearing. In this case, the student was accused of sexual assault against another student. AB wanted legal representation but in accordance with the University’s Regulations, a representative could only attend in support and not as an advocate.  AB brought a claim in the High Court seeking a declaration that he was entitled to legal representation.

The court found that there was an implied contractual right that these proceedings would be fair and consistent with natural justice. The judge stated that “Although both the 2018 and 2019 Regulations appear to provide for a student to be accompanied by someone rather than represented by them, those provisions do not exclude the need to ensure “natural justice” and so need to be read in light of the overriding duty to ensure “natural justice”, and as such legal representation could be required when that was necessary for fairness.”

The judge went on to consider the criteria set out in ex p Tarrant [1985] QB 251 and confirmed that the criteria set out in that case is still the best guidance when deciding if legal representation is required in a particular case, the factors to be considered are:

  1. The seriousness of the charge;
  2. Whether any points of law are likely to arise;
  3. The capacity of the individual to understand the case against them;
  4. Procedural difficulties;
  5. The need to avoid delay;
  6. The need for fairness between the student and those making the allegation.

In the circumstances of AB, the court found that it was unreasonable to deny legal representation given the seriousness of the allegation and the potential consequences that the student may suffer.

Whether students can be represented is determined on a case-by-case basis on application of ex p Tarrant [1985] QB 251.

There is further guidance on this point from the OIA Guidance (Office of the Independent Adjudicator for Higher Education. The OIA in their OIA Good Practice Framework- good disciplinary procedures (para 23) states:

“It is good practice for providers in permit legal representation in complex disciplinary cases, or where the consequences for the student are potentially very serious.”

When being investigated or asked to attend a disciplinary hearing, students can often believe that the hearing and outcome are not serious enough to have legal representation. However, there are certain professions such as Solicitors, Barristers, Doctors and Teachers who take academic misconduct extremely seriously when assessing the individual’s character and/or fitness to practice.

It is therefore essential that before responding to any allegations or attending a disciplinary hearing, you first seek legal advice.

Our team has represented a range of students, both undergraduates and postgraduates, in University misconduct investigations and proceedings. If you are under investigation or receive correspondence from your university regarding an allegation/investigation, please contact our Crime & Regulatory department on 0207 632 4300 and we would be happy to discuss how we can assist.

 

 

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