The first crucial steps: how Universities should respond to allegations of misconduct
Once an allegation is made against a student (or member of academic staff), either by another student, a member of staff or someone outside the university, it is important that the University takes stock of the issue and acts carefully to ensure fairness to all parties. Things go wrong when institutions form a quick visceral judgement, and cease to be impartial.
At this stage, the University will likely have received a report (formal or informal) and should have taken precautionary steps to safeguard the welfare of the student/s (and/or staff) involved in the allegation. Our second blog details those preliminary steps that should be taken.
This is the third blog in our series on University disciplinary investigations. If you haven’t already, check out our first blog on Universities getting the process right from the start and our second blog on how Universities should initially respond to allegations of misconduct. This blog focuses on what the University and more importantly the Investigator should do next.
Given the early stage of the investigation, the Investigator needs to take steps to inform themselves about what the complaint is and what policies and procedures apply to their investigation of that complaint.
The Investigator should have a checklist or protocol to structure the investigation:
Gathering evidence is as crucial to investigating misconduct as it is to a police investigation into a criminal offence.
Self-evidently, it is best that evidence should be gathered promptly. This includes conducting interviews in a timely manner and obtaining written statements from individuals involved in the matter as swiftly as possible.
You must not speed through this part of the investigation as to do so may cause detriment to the accuracy and usefulness of the evidence you obtain. In that regard, the Investigator should plan each interview before it takes place, know what questions they want to ask the interviewee in advance and make sure a verbatim or near verbatim record of the interview is made. These interview plans bring focus and are typically disclosable.
A record of interview can be prepared through having a note taker in the room that can make a near-verbatim or verbatim written record of the interview, or by voice recording the interview for later transcription if necessary, which is preferable. These preparatory notes, or recordings, ought to be retained and are also typically disclosable.
The first person the Investigator should speak to is the complainant. Obtaining a first-hand account from the complainant is integral to the investigation and is likely to be a key part of the evidence in any disciplinary proceedings. It should give the Investigator a clear idea of the accusation of misconduct they are investigating, who else they should be interviewing and what questions they should be asking at interviews. It is vital that an independent and impartial investigation is conducted. Paradoxically, despite reluctance on the part of some investigators, a fair and transparent investigation is both robust, and effective. Many proceedings have foundered if a partial, or biased attitude prevails.
Once the complainant’s account is known, it is best that the Investigator prepares a written statement for the complainant to review, confirm the accuracy of and sign. This written statement then forms part of the evidence about the alleged misconduct.
Thereafter, any corroborative or eye-witness evidence should be taken. The Investigator should then meet with other witnesses and ask them what they know about the alleged misconduct. It is best that the information obtained from witnesses is also captured in written and signed statements.
It is vitally important, consistent with fairness, that no collusion, rehearsal or cross-contamination takes place. If the witnesses have discussed the events in question together before the investigator becomes involved, a perfectly natural thing to have done, that fact should be candidly admitted and disclosed in the statements subsequently obtained.
If at any time during the investigation the Investigator feels the need to take advice on how to proceed, they should not hesitate to obtain it, from either the University’s legal department, or lawyers retained by the University for that purpose. It is better to pause and seek guidance than to proceed in error.
The next person the Investigator should speak to is the accused student or students. They are no less important. They should be informed that they are entitled to seek legal advice and, subject to the University rules not prohibiting this, that they are entitled to remain silent. Whilst there is no obligation on the University to provide disclosure, it would be best practice to be open about the allegation made and to provide an accurate summary in advance. Ambush tactics would run against the grain, especially since Investigators are dealing (habitually) with young, sometimes vulnerable, and often naïve students, who might be facing considerable academic, peer-group, or financial pressure. More important than this, their health and mental well-being can be adversely affected by these proceedings, a factor which must always be borne in mind. As with the complainant, it is important to get a record of what the student says about the misconduct allegations being made against them. After the interview the Investigator should prepare a written statement for the student and ask them to confirm the accuracy of and sign it.
Depending on the type of misconduct being alleged, there may be other useful evidence the investigator can obtain.
The Investigator should ask the complainant, the suspect/s or other witnesses for email chains or screenshots of group messages which go to the misconduct (e.g. a discussion about collusion in a WhatsApp chat, or a discussion about events at a party which had led to allegations of misconduct).
If misconduct is alleged to have taken place on campus at University, there may also be CCTV images which can assist in the investigation.
This evidence should be obtained and secured to ensure it can be used if necessary.
As we have already mentioned, it is important to keep records of each interview conducted, the methods of which we have discussed above.
Witness statements should always be signed if possible.
If an individual refuses to sign their statement and decides they no longer want to be a part of the investigation, it is more than likely that the information that individual has shared with the investigator should not be used going forward. This is particularly important where adverse matters have been raised by that individual which could impact the outcome of the investigation for the accused student. Fairness in the investigation is crucial and if the student does not have a chance to test that individual’s evidence the outcome may be impacted. Conversely, if the student’s would be evidence undermined the University’s case, the unsigned statement should be disclosed. This brings us to the fundamental issue of unused material.
Facing an investigation will always be stressful and upsetting for a student, but by making the process as clear, and transparently fair as possible will help to mitigate the risk of adverse health or academic consequences.
The investigation report should collate all the information the investigator has obtained including views from the complainant, accused student and witnesses. It should detail any other evidence obtained and the Investigator can identify any preliminary findings they have made in the report. We look in more detail at the content of the report below.
During an investigation the Investigator may collect evidence which they decide does not form part of their investigation report or the case they have prepared against the accused student. If that occurs, the Investigator must consider whether any of that material falls into the category of ‘unused’.
Unused material is that which either harms the case against the suspect, or helps the suspect to show their position in respect of the allegations.
If the material is ‘unused’ and either harms the case against the student or helps the student, it must be shared with the student so that they can decide whether or not to use that information in support of defending the misconduct allegations they are facing.
There should be a disclosure management document that sets out the approach of the University to capturing material, and retaining it. A case in which Edward defended, an accusation of rape at the Royal Agricultural University, collapsed because the approach to disclosure was irreparably flawed. It is worth remembering the Attorney General’s Guidelines which apply to all proceedings governed by Article 6:
A fair trial is the proper object and expectation of all participants in the trial process. Fair disclosure to the accused is an inseparable part of a fair trial.
The Investigator, and those charged with his/her appointment, should therefore review the evidence gathered and the overall conduct of the investigation at regular intervals. Policy decisions on disclosure, the ambit of the investigation, and the continuance of proceedings have to be rigorously reviewed. Each decision should be able to withstand robust scrutiny. In situations where there is insufficient evidence to support an allegation of misconduct, the University’s disciplinary procedures should allow the University to take no further action and unmeritorious cases should be filtered at an early stage. Periodic reviews are particularly important when an accused student has been temporarily suspended from their course or prevented from attending campus activities and University events.
As mentioned above, any investigation will place the accused student under a level of stress and scrutiny they most likely have never experienced or had to manage before.
There are some steps that all investigations should take to ensure the accused student feels that the investigation has been fair and that they know what has happened during that investigation. The most important, legally is the disclosure of unused material, i.e. the fair, and proper disclosure of anything that undermines the case against the student, or assists his defence, which we have emphasised above. There are, however, other important things that can be done.
The student must be given the investigation report in good time, well in advance of any misconduct hearing or disciplinary process which they are required to attend and participate in.
The investigation report should give the suspect the following information:
The suspect must be given sufficient time to consider the investigation report before they are asked to attend any hearing.
If stressful proceedings are a necessity and unavoidable, assuming no settlement or diversion can be accommodated, then it is good practice to work constructively with the student’s legal team, if they have one. They might not want to adopt an aggressive or confrontational approach; this is often a false assumption, or stereo-type. Engagement develops trust and enables the proceedings to be conducted in a way that minimises stress, or anxiety. The University owes a duty of care to all its students and this would meet that responsibility.
Furthermore, pastoral matters are important and regular correspondence checking on how the student is faring, and their level of resilience, is also advisable. This should be separate and distinct from legal communications. One regulator, the General Medical Council (GMC), was very far seeing in adopting this approach many years ago. They even have published literature from Doctors who have gone through the process. See the GMC’s publication here.
University should be a stimulating, happy and enjoyable experience for all students. Sadly, this can never be the case for some who have suffered wrongs, which regrettably can also extend to unjust accusations. Independence, integrity and an impartial approach on behalf of the Investigator will help to ensure that all involved in the process, whatever the outcome, will believe they were treated fairly and do not harbour a lasting sense of injustice.
Sophie Bolzonello is an Associate, Australian Qualified, in the Regulatory team. She specialises in advising regulated professionals on compliance and in investigations for professional bodies, individuals facing discipline and students at Universities. She also advises regulators on policy, governance, prosecutions and litigation. She has extensive experience working for professional regulators and organisations concerning statutory compliance and advising on and prosecuting regulated professionals in the building and health sectors.
Edward Henry QC defends in serious fraud, professional disciplinary/regulatory offences, and has defended many students, before the Criminal Courts and Student Conduct and Discipline panels. His submissions in the Royal Agricultural University Rape Trial were instrumental in leading to the collapse of the prosecution. In addition, he has an AML advisory practice, and is currently acting in respect of an $800,000 fraud for a private prosecutor. For 17 years he acted as a pre-publication advice lawyer for Associated Newspapers and retains a keen interest in reputational management. Formerly a Trustee of RELEASE, the national drugs charity, he a special interest in the medicinal cannabis sector, advising investors and those seeking Home Office licenses for cultivation.
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