To Gazette No. 4389 (1 February 1996)
Council accepted the need for immediate action in respect of recommendations (ii) and (x), and the necessary statutory amendment is published in the Gazette of 1 February for promulgation at the meeting of Congregation on 20 February.
With regard to the remaining recommendations, it was agreed to seek the comments of interested bodies and individuals. Whilst respondents are of course free to comment on all aspects of the report, Council would welcome in particular comments on recommendations (xi), (xii), (xxi), (xxii), (xxiii), (xxiv), (xxix), and (xxx) which involve new procedures or significant changes in practice. It is requested that any comments should be submitted to the secretary of the committee (Mrs F. Barnwell, University Offices, Wellington Square) by Friday, 22 March.
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3 The committee met on sixteen occasions. An interim discussion document was issued in Hilary Term 1995. Details of evidence received are in Annexe C. Having considered the responses to the document, we make the following report and recommendations to Council.
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6 It goes without saying that we had no remit to consider the disciplinary procedures or policies of colleges, except in so far as we were invited by Council (from the standpoint of the University) to look at `the relationship between college and university jurisdictions'. The Zellick Report is as relevant to colleges as to the University, but it is for colleges to decide whether they accept the Zellick principles and whether, if so, procedural changes are called for.
7 Our terms of reference relate mainly to the University's disciplinary procedures for dealing with misconduct by Junior Members. Strictly speaking, the University's procedures for dealing with unacceptable academic performance or mental illness were thus excluded. It would, however, have been artificial to ignore this area entirely. Questions which arise over the relationship between colleges and faculties in the dismissal of graduate students are similar to those which arise over the sending down or rustication of Junior Members for disciplinary reasons by the Proctors or the Disciplinary Court.
8 As regards the University's disciplinary jurisdiction, we were asked to look at procedures and not at offences. We do, however, suggest the possibility of a further review in that area and note the imminence of a review of the particular offence of harassment.
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(a) Procedural fairness. Although domestic tribunals are not criminal courts there are certain general principles of natural justice to which any disciplinary system should conform. Anyone charged with misconduct should be given full particulars of what he or she is accused of and a fair opportunity to answer the charge. The adjudicative process should be fair and impartial, without bias or real danger of bias.
(b) Transparency and accessibility. Those subject to a university's disciplinary rules should be made aware of (or given reasonable means of discovering) the type of misconduct which is punishable. The Zellick Report (in Appendix V) makes a number of practical suggestions in this area. For example, codes `should be written in clear English' and `should not be legalistic'; they should define the misconduct which is punishable, and state how far breach of other codes operating within a university constitutes misconduct punishable under that university's central code; they should indicate how far a code extends to conduct outside the university; maximum penalties should be clearly prescribed.
(c) Relationship with criminal law. The main focus of the Zellick Report is how universities should deal with disciplinary offences which are also criminal offences. The occasion for establishing the Zellick Task Force was a much-publicised case of alleged rape which a university sought to deal with internally. Zellick discusses the circumstances in which universities are justified in dealing with misconduct which, if proved in a court of law, would be a criminal offence and concludes that
—university authorities can and should deal with misconduct which, although criminal, is not serious (e.g. disorder after examinations);
—university authorities should not attempt to investigate `serious' offences;
—although internal disciplinary action may be initiated in such cases it should be suspended until police action is complete;
—serious offences should normally be reported to the police.
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11 One feature of the system is that disciplinary rules can if necessary be introduced with immediate effect by the Proctors, subject to confirmation by the Rules Committee. One question raised in response to our discussion paper was whether such a procedure was flawed in that it could conflict with the principle (para. 9 (b) above) that misconduct ought to be clearly defined and brought to the attention of every student before disciplinary action is taken. (The statutes envisage that a rule can be effective for up to `three weeks of Full Term'—conceivably a number of months if the rule is introduced late in Trinity Term—before publication in the Gazette.) The Proctors do not very often need to exercise their powers to make such urgent rules, but, for example, they did so in Michaelmas Term 1991, when they promulgated a new rule relating to all forms of harassment which in effect superseded the existing code of practice on sexual harassment. We do not, however, think this objection is substantial. The statute states that rules made by the Proctors `shall have immediate effect, and shall be published' (our emphasis). We are advised that the publicity surrounding the introduction of new rules and regulations promulgated by the Proctors and/or the Rules Committee is dealt with by way of a proctorial notice which is sent out to all colleges and, in addition, by letter to all Junior Members. In the case of the rule on harassment introduced in 1991, a full consultative process had already taken place via the Proctors' meetings with OUSU, JCR Presidents, MCR Presidents and college deans prior to its promulgation.
12 The main distinguishing feature is the concurrent jurisdiction of the colleges. This, in itself, would make it impossible in Oxford to provide Junior Members with any single comprehensive code of student discipline. However, even the University's own rules and procedures fall short in some respects of the general principle adumbrated by Zellick that codes should be clear and accessible. Despite best endeavours, the system can appear complex and opaque: details of offences, regulations, codes etc. are to be found spread across many sections of Statutes, Decrees, and Regulations, the Examination Decrees, the Proctors' Memorandum, and elsewhere. In part this stems from the University's legislative procedures. Title XIII—a `Queen-in-Council' statute—may be seen as primary legislation within which provision is made for secondary legislation on such matters as maximum monetary penalties and Rules Committee regulations. This secondary legislation appears with the University's financial decrees and in the chapter entitled `other matters which require to be governed by decree or regulation' (Appendix to Ch. VIII, Statutes, 1995, p. 524, and Ch. XI, Sect. VIII, p. 715). Although regulations made by authority under the statutes are required to be published in the Gazette when they are made, there is no general requirement for them to be subsequently reprinted in any document, such as Statutes, Decrees, and Regulations, and therefore they may be lost from view; Title XIII does, however, provide for regulations of the Rules Committee to be printed for distribution to Junior Members `on first coming into residence'.
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—particular offences set out in Title XIII, i.e. instances of misconduct (Tit. XIII, p. 95);
—regulations of the Rules Committee (which include a regulation on harassment) (Ch. XI, Sect. VIII, p. 715);
—Codes of Practice on Freedom of Speech (1987) and on Harassment (1991) (Ch. XI, Sectt. IX and X, pp. 720, 725);
—rules about the dress of members of the University (Ch. XI, Sect. IV and `rulings by the Vice-Chancellor', p. 699);
—rules about the use of libraries (including those `in force for the time being' for the Bodleian—see Ch. III, Sect. XIV, § 7, cl.1, p. 266);
—rules about computer misuse, OUCS buildings, software, data protection (conditions attached to the use of the service, as set out in a document published by OUCS, available on-line and at registration);
—rules about the conduct of examinations, specifically the regulations of the Proctors (Examination Decrees, 1995, pp. 1034–8);
—regulations made by a competent university authority and duly published in the Gazette (Tit. IV, Sect. I, cl. 3, Statutes, 1995, p. 31);
—rules relating to `minor matters' governing the detailed management of a building or land, approved by the Proctors (Tit. XIV, Sect. I, cl. 2, p. 105);
—damage to property or inconvenience to users of buildings (Tit. XIV, Sect. I, cl. 3, ibid.).
Further particulars of `university offences' and `other offences' are provided in Annexe E.
14 Title XIII categorises offences as being of two kinds: `university offences' and `other offences'; `university offences' are classified as either `minor' or `major'. In each case the sequence of events for the handling of an offence, from summons, to charge, and rights of appeal on conviction, is set out in the primary legislation, Title XIII. A flow-chart indicating how, under its provisions, an offence is dealt with, is annexed at D. [Note: not reproduced in the on-line supplement.] The language has the curiosity that an offence described as `not a university offence' (using `university offence' as a term of art) is nevertheless an offence against the University's disciplinary provisions and therefore liable, subject to options open to the individual concerned, to punishment by the university authorities.
15 One of the more substantial submissions we received argued that Oxford University's disciplinary provisions do not seem to embody any coherent overall view of the various objects to which a code of discipline should be directed and that the University should take the opportunity occasioned by this review to look at the provisions as a whole, measured against Appendix VI of the Zellick Report (annexed at F). It was suggested that such a review should address not only the substance of Oxford's disciplinary code but its presentation and accessibility to Junior Members.
16 This is not within our terms of reference. We were appointed by Council to examine procedures for dealing with misconduct, not to review Oxford's definition of misconduct. We do, however, commend this thought to Council for further consideration, and as a starting point for any further review we annex:
(a) our own summary of offences drawn from the University's present statutes and regulations (Annexe E); and
(b) the relevant appendix to the Zellick Report, which seems admirably clear, consistent and comprehensive (Annexe F).
17 Regardless of any substantive change, we recommend that the Proctors might consider the form of the Proctors' Memorandum and whether this could or should be revised so as to equate more closely to a complete code.
18 At present (under Tit. XIV, Sect. I, cl. 2, Statutes, 1995, p. 105), any person or body having charge of any land or building of the University may make `rules' relating to `minor matters, governing the detailed management of the building or land'; such rules must be approved by the Proctors; any breach of such rules may be treated as a `university offence'. We do not think the current phrasing of the statute is broad enough to cover, for example, the rules made by OUCS to cover their computing facilities. We therefore recommend that the statutes be amended so that rules, approved by the Proctors, governing such things as the facilities and services offered by a university authority might also be covered.
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20 We have been made aware of some concern, at the margin, about the adequacy of the Proctors' present jurisdiction. Some people are excluded who should perhaps be covered - others are covered who should perhaps be excluded.
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(a) Visiting Students (Ch. X, Sect. XV, Examination Decrees, 1995, pp. 961—3). Their names are entered on a register but they are not members of the University. They are required to give an undertaking as to conduct in terms approved by Council, and before they are accepted for registration it is the practice to require Visiting Students to sign a form in which they undertake `to be bound, as though I were a Junior Member of the University', by various provisions and procedures. The form mentions `general conduct', libraries, defacement of property, freedom of speech, and motor vehicles. We recommend that it be extended to include reference to computer misuse, data protection, sites and buildings, and harassment, and that it be reviewed regularly to keep up with new university regulations. It may also be desirable to make it larger and more `reader friendly' so that visitors (mostly foreign) know precisely what they are accepting. In principle, however, this procedure seems to achieve what is required.
(b) Recognised students (Ch. X, Sect. XIV, Examination Decrees, 1995, pp. 960–1) are graduate-level students who are not members of the University. They do not at present sign any undertaking to submit to the Proctors' jurisdiction and we recommend that they be asked to do so.
(c) Non-matriculated students reading for university examinations are a special category: their names are placed on the Register of Diploma Students (see Ch. X, Sect. VII, cl. 1, Examination Decrees, 1995, p. 909). The Proctors operate on the basis that they have jurisdiction over such persons in respect of their conduct in examinations derived from the Proctors' statutory responsibility for examinations (Tit. IX, Sect. VI, § 3, cl. 3, Statutes, 1995, p. 68). It is doubtful if they could sustain a claim to exercise jurisdiction in respect of other forms of misconduct (e.g. harassment). We recommend that institutions putting forward names of students for addition to the Register of Diploma Students first require students to give an undertaking identical to that given by Visiting Students.
(d) Other (`associate') students. Recently, there has been much debate about the position of so-called `associate students' who are associated with colleges but have no status in the University. It has been put to us that if these students mix in university circles with our own Junior Members then they should be subject to the same disciplinary regime as matriculated undergraduates, and should be asked by colleges to sign the same sort of declaration as Visiting Students. At present the Proctors would have no jurisdiction over a complaint of, for example, harassment or serious computer misuse involving an associate student. Against this is the objection to giving any shape of formal university recognition to `associate students'. There would also be problems in drawing the line between longer-term students and young people temporarily in colleges for summer schools and the like. Despite the apparent anomalies of the present position, they may be preferable to the anomalies that would result from any attempt to push out the frontiers of the Proctors' jurisdiction. We refer the matter to Council, but are inclined to think that the best solution is to leave matters as they are—i.e. that the discipline of such young people should be a matter solely for colleges and not for the University. There is, of course, every reason why they should be required to accept explicitly any local rules for the use of specific university or college facilities (e.g. libraries or computers) on the same basis as any non-university user.
22 We have not addressed the position of more senior academic visitors, since our concern is with Junior Members and the disciplinary procedures to which they are subject.
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24 It is for consideration whether the definition of those Junior Members subject to the Proctors' disciplinary jurisdiction under Title XIII should be brought into line with the definition in Tit. XIV, Sect. IV, § 1, cl. 2, Statutes, 1995, p. 109 (dealing with consultation) i.e. adjusted to those `residing to fulfil the requirements of any statute, decree, or regulation of the University or reading for any degree, diploma, or certificate of the University'.
25 In connection with the various categories of membership of the University, we draw to Council's attention the existence of some inconsistencies (relating to matters of jurisdiction) in the various registers referred to in Statutes, Decrees, and Regulations and Examination Decrees and those the Registrar is required to maintain (Tit. IX, Sect. VII, cl. 5, Statutes, 1995, p. 69).
26 We recommend that the definitions of the categories of membership of the University be reviewed.
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30 The process of consultation showed unanimous opposition to any idea of creating a new body with investigative powers. Arguments both for and against the present jurisdiction of the Proctors were most fully set out in a submission we received from one of the colleges, and can be summarised as follows:
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(a) The case against the current arrangements. Information uncovered by their initial investigation of a case may lead the Proctors to form a bad impression of the accused individual: such information may, for example, include third-hand information which should not be used in evidence. The Proctors must, of course, only adjudicate on the basis of relevant evidence and must not be tainted by irrelevant information they previously gathered. Questions such as the granting of an adjournment, whether the case being made at the hearing is covered by the terms of the summons, whether the facts constitute the offence with which the accused is charged, and determination of guilt or innocence itself are questions in which the Proctors, as investigators, are judges in their own cause.
(b) The case for the current arrangements. The Proctors' summary jurisdiction resembles the exercise of powers by college deans, which we understand are widely regarded as satisfactory. Junior Members who have the option of having a case heard in the Disciplinary Court but who plead not guilty are satisfied that the matter should be heard by the Proctors. Few Junior Members have ever appealed against the decision or sentence of the Proctors. A hearing in front of the Proctors is quick, cheap, informal and confidential.
31 The procedures are of course inquisitorial, as are most internal disciplinary systems including those of the colleges. However, they have an honourable historical tradition. They are generally accepted and respected within the University. They are as capable of operating fairly as any alternative system that might be introduced. It is the responsibility of the Proctors to ensure that their procedures, albeit relatively informal, comply with the principles of natural justice (para. 9 (a) above). One criticism put to us may perhaps have been based on lack of awareness of how the system actually works þ it was suggested that there can be no consistency in sentencing because of discontinuity between successive Proctors so that like cases are not treated alike. This is not the case. Records and `tariffs' are maintained by the Marshal and passed on. The statutes impose the basic requirement that an alleged offender should be informed in writing of the charge. It is for the Proctors to ensure that the charge sheet and subsequent procedures conform to the principles stated above.
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36 Also in the course of our inquiry, Council decided to establish the new senior post of Clerk to the Proctors (HCP Vol. 341, MT 1995, pp. 34, ix.10(3), Gazette, Vol. 126, p. 7). It is not envisaged that the new Clerk to the Proctors should necessarily be legally qualified. Nevertheless, the experience of a senior administrator in a permanent position may be helpful to the Proctors in identifying circumstances in which it might be prudent to seek professional advice.
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38 The case for a change is associated with the Rules Committee's Regulation on Harassment, although not limited to cases involving harassment. It is felt that the Proctors, taking account of the wishes of the complainant, may think it right to have a serious charge determined by the more formal procedure of the court and not disposed of summarily. The case against a change is that a new power of referral would deprive the charged Junior Member of the right to opt for a speedy summary hearing (and, it has been suggested, might encourage the Proctors too easily to rid themselves of tricky cases). Having considered the arguments, we recommend that the change be made. We do not envisage it being used very often, but see advantage in giving the Proctors discretion for circumstances which cannot be identified in advance. If the Proctors refer a case to the Disciplinary Court, they effectively are altering their role to that of the prosecution. We see no difficulty in this. [see Note 3]
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39 The Zellick Report discusses the question of whether and (if so) how, `when a serious matter is under investigation by the police or awaiting trial', a university should exercise powers to suspend or exclude a student or impose conditions on his or her access to facilities. The report recommends that a decision of this sort be taken only at a very senior level. It must not be used or regarded as a penalty.
40 `Suspension' in this sense is not a term of art in university (or college) legislation, nor does Title XIII directly address the situation discussed by Zellick. Colleges do, however, have a power to impose such a suspension, e.g. rustication. The Proctors' powers under Title XIII relate to situations in which they are investigating or dealing with a charge. They and the Disciplinary Court have powers to penalise those convicted, or those who have misconducted themselves during proceedings. There appears to be no explicit power for anyone to impose a temporary indeterminate banning order on a Junior Member in other circumstances—for example, when this is thought necessary as a holding measure while a serious matter is dealt with by the police and the courts.
41 We therefore recommend an addition to the statutes, explicitly empowering the Proctors to make a range of temporary indeterminate banning orders in such circumstances and to deal with consequentials. By `indeterminate' we mean an order will operate until a condition is satisfied, an event takes place, or until further notice. We think that such a power should include both `suspension' and `exclusion'. These two terms are used by Zellick for (a) `total prohibition on attendance at or access to the University and on any participation in university activities'; and (b) `selective restriction', the exact details to be specified in writing, which could include a ban on contact with a named person. A power would also be needed to deal with such Oxford matters as the effect on the reckoning of terms. (See also paras. 67–73 below.)
42 In deploying such powers, the Proctors would be expected to follow the Zellick principle that a more extreme prohibition should be imposed only where a lesser restriction would be inadequate.
43 If such powers are to be entrusted to the Proctors (to suspend students, otherwise than as a penalty) then we suggest that the opportunity should be taken to consider legislating for their use in circumstances which go wider than a pending prosecution. For example, there may be cases associated with illness or mental instability which require the suspension of a Junior Member for his or her protection or that of others. We refer below (para. 70) to the special considerations which may arise in such cases.
44 Procedurally, we consider that any new power should be exercised as far as possible in conformity with the general principles of Zellick (paras. 26–30 and Appendix IV of the Zellick Report) after translation into Oxford terminology. These principles would require that Junior Members be allowed to make representations before being suspended (subject to an emergency procedure for cases of great urgency). The Proctors should be required to review their order monthly to confirm that it is still necessary. There should be an appeal to the Disciplinary Court.
45 This area is one in which exchange of information and congruent action between the Proctors and a Junior Member's college will be particularly important. We discuss this matter more generally below.
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48 In respect of those matters mentioned in our terms of reference (items 2 (a) and 2 (e)) we recommend that the statutes should be amended to make explicit, for the avoidance of doubt, certain powers which the court has in recent cases exercised:
(a) exclusively to interpret statutes, decrees, and regulations as they bear on cases before the court without recourse to the Chancellor, Vice-Chancellor, and/or High Steward: this is at present inconsistent with Title I, but it is desirable to enable the court to perform its task efficiently; the Vice-Chancellor and High Steward have been consulted on this matter and have agreed;
(b) to suspend all or part of a penalty imposed by the Proctors (of course, after hearing argument from the Proctors) while considering a case on appeal against verdict or sentence; as one college pointed out in its comments, without such a power a successful appeal may end up as a pyrrhic victory;
(c) to make interlocutory orders on such procedural matters as production of documents and representation.
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(d) that the Disciplinary Court (when acting in its capacity as a court of first instance) be empowered to suspend its own sentence, pending an appeal to the Appeal Court;
(e) an amendment to Title XIII to provide some fall-back mechanism for appointments to the panels of the Disciplinary Court if the Rules Committee is unable to draw up lists;
(f) imposition of a duty on the Clerk of the Court to retain papers relating to its proceedings until they are no longer required, when they should be passed to the University Archives and remain closed for eighty years otherwise than to persons authorised by the Proctors.
49 The chairman of the court, who is appointed by the High Steward, must be legally qualified and a member of Congregation. Other members may, but need not, have legal experience. Since the chairman is the only member of court guaranteed to have legal knowledge, we recommend that the chairman of the court be explicitly empowered to act alone if necessary in uncontentious procedural and technical matters. Such a power would expedite proceedings since the need to convene full meetings of the court might be avoided when an uncontroversial matter was raised prior to a court sitting. The instances when we envisage the chairman acting alone include: the production of documents, suspension of sentence imposed by the Proctors, determining the timetable for a hearing.
51 We recommend that the Disciplinary Court should be required to apply the civil standard of proof. The civil standard of proof is the balance of probabilities, but the more serious the allegation the more convincing is the evidence needed to satisfy it. We recommend that the standard of proof applicable in the court be set out in the statute by reference to the civil standard, so that any changes in the interpretation given by the civil courts are automatically adopted by the Disciplinary Court.
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53 We were asked by Council to investigate the possibility of establishing a panel of legally qualified members of Congregation, willing to provide legal assistance to Junior Members in cases before the Disciplinary Court or the Appeal Court (item 2 (g) of our terms of reference). We circulated members of the Law Faculty and on the basis of this we have to report that there is not sufficient support to establish such a panel.
54 If Council accepts this, the only way in which fairness can be secured to a Junior Member defendant whose case requires professional help, but who cannot reasonably expect to afford it, is for the University to provide its own system of legal aid. We emphasise that we do not think that all Junior Members before the courts will require professional help. We propose the introduction of a legal-aid-type system in which there may be applications to the Clerk of the Court for aid from the University. Our proposals are set out in Annexe G.
55 Clearly our proposal that the University should offer a legal aid system has financial implications. It is impossible to assess accurately what the impact will be. The Clerk to the Disciplinary Court has suggested, however, that the two cases before the court prior to the establishment of the committee might have required in the region of £5,000 each had legal aid been granted. We recommend that the proposals set out in Annexe G be implemented. For illustrative purposes these assume that means testing follows the principles adopted by the Access Funds Committee in its allocation of grants to needy students, but Council will need to consider whether these are sufficiently generous.
57 We do not find it possible to make a unanimous recommendation on this matter.
(a) Against representation, it can be argued that legal representation for such persons would be a novel concept in the ordinary criminal courts. If the representative is to be entitled to act as an advocate, not merely as an adviser, then his or her presence is liable to prolong proceedings and add to the burden on the defendant. If the object is to protect the witness from insensitive bullying, then it is arguable that this can properly be left to the court.
(b) On the other hand, there are arguments in favour of legal advice and representation being possible for such persons at the discretion of the court. There is a potential conflict of interest between the Proctors and the complainant/witness. The complainant/witness may be subject to particularly hostile cross-examination by a trained lawyer on issues which are not only highly sensitive, but where the complainant's reputation is as much in issue as the defendant's. Indeed, in a recent case, the court agreed to the presence of a legal adviser for a complainant of harassment: the Proctors supported separate legal advice for the complainant on the ground that it was helpful not only to the complainant but also to the Proctors themselves.
Regarding the arguments against, while it is true that legal representation of complainants may be unusual in the ordinary criminal courts, it is (of course) routine in the civil courts. The University's decision to adopt a (generally) `criminal process' approach to the way in which, for example, complaints of harassment are dealt with (rather than the approach adopted in the civil law), should not disadvantage complainants. Indeed, it is in the interest of the University to be seen to be providing a process which is as advantageous to the complainant as that provided in the civil law, otherwise complainants may consider that they would be better served to have recourse to legal redress outside the University.
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60 We think that a power in the courts to award costs against a Junior Member might be something of a deterrent to defendants or potential appellants. We therefore make no recommendation in this regard.
61 In one of the recent cases the Disciplinary Court reasoned that it did not have the power to award costs to the Junior Member. We do not think this is satisfactory. We recommend that the Disciplinary Court be empowered to order the University to pay costs to a Junior Member.
62 It is in the interest of all concerned (University and Junior Members) that the cost of proceedings should be kept to the minimum consistent with fairness. This means avoiding the unnecessary prolongation of proceedings þ every extra day costs money—and discouraging representation at an unnecessarily senior level. We refer in this context to our recommendations on the court's procedures, and to our suggestions for legal aid.
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(a) exclusively to interpret Statutes, Decrees, and Regulations in relation to a case before it;
(b) to suspend a penalty imposed by the Disciplinary Court;
(c) to make interlocutory orders;
(d) to apply the civil standard of proof;
(e) to allow representation and authorise legal aid; (f) to order the University to pay costs to an appellant.
64 We have recommended above (para. 34) that the duty of the Appeal Court to consider appeals under Tit. XIV, Sect. I, cl. 3 (Statutes, 1995, p. 105) be removed.
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66 We recommend that:
(a) for minor `university offences' the maximum fine should be rebased at £200, inclusive of total damages. The present figure (£60) is inadequate: college deans, who look to the University's fining practice in determining their own fines, consider the present maximum far too low, and, although they are not tied to the University's limit, have asked the Proctors to increase the maximum so that their own limits may be justifiably raised. The present link with maintenance grants is inappropriate given changes in systems of student support. If the link had been expressed in terms of total student support (i.e. including entitlement to borrow from the Student Loans Company) then the maximum fine today would be £92.11 which approaches half of the round £200 we suggest. At present the legislation provides that both a fine of up to £60 and damages of up to £60 may be imposed. We propose that the two sums be combined. The total should in future be indexed to the RPI. We draw attention to the fact that a consequence of increasing the maximum fine is that fewer cases might fall in the category of offences which allow the person charged to opt for a hearing in the Disciplinary Court.
(b) for major `university offences', a maximum fine should be prescribed. We recommend a maximum of £1,000 (similarly indexed) exclusive of any further figure for compensation.
(c) in the spirit of transparency, the statute should be amended to list as follows the sentences which the Proctors and the Disciplinary and Appeal Courts may impose either singly or in combination:
—permanent deprivation of membership of the University (i.e. expulsion), or temporary deprivation of membership of the University (e.g. rustication) or, in the case of persons who have not matriculated, permanent or temporary exclusion from matriculation;
—temporary postponement of or permanent disqualification from leave to supplicate for a degree of the University;
—a fine;
—compensation;
—permanent deprivation or temporary suspension of authority to use specified university premises or facilities;
—exclusion from entering for any university examination without the prior permission of the Proctors or for a specified period;
—any sentence considered by them to be lighter.
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68 In addition to departmental heads who have authority under Tit. XIV, Sect. I, cl. 3 (Statutes, 1995, p. 105), authorities with power to impose bans include: colleges; the Proctors (or exceptionally, the Vice-Chancellor and Proctors); faculty boards (e.g. removal from the Register of Graduate Students—see Regulations of the General Board, Examination Decrees, 1995, p. 798); Director of Clinical Studies (e.g. removal from the Register of Medical Students—see Ch. II, Sect. VIII, § 3, cll. 1–2, Statutes, 1995, p. 241).
69 Such powers are not invariably exercised as disciplinary measures. They may also be exercised for a student's own safety, or for the safety of others. We have recommended above (para. 41) that the Proctors be explicitly empowered to suspend Junior Members for such reasons, and also as a holding measure where a serious matter is under investigation by the police. The effect of an exclusion is the same, whatever the reason for its imposition, but conceptually and procedurally it is important to distinguish between bans imposed
—as disciplinary penalties;
—for academic reasons;
—as a holding measure; or
—for medical reasons.
70 If new powers are to be conferred in this area then thought should be given to where they are dealt with in the statutes. Under Oxford's present statutes, there is no explicit procedure for dealing with problems arising from Junior Members' ill health. Zellick comments (para. 38 of the Zellick Report): `Disciplinary procedures are not appropriate for dealing with misconduct arising from mental ill-health. Quite different considerations arise in these circumstances, requiring different remedies based on medical advice. Universities may wish to consider introducing such a procedure for students; it already exists for staff.' It may be regarded as unfair, and potentially dangerous, to deal with a health problem under the Title Of University Discipline. For example, any tribunal dealing with such a case should include medically qualified persons. We refer the matter to Council for further consideration, since it is not a disciplinary point.
71 Generally, banning orders involve exclusion from access to a range of explicitly or implicitly specified facilities. Such exclusions may be (a) permanent, (b) indeterminate, or (c) for a specified period. The terminology in general use is quite varied and unsystematised. For permanent exclusion, from a college or the University only, the term `expulsion' is used. The terms `sending down' or `sending out of residence' are commonly used for indeterminate bans in a college context (although `sending down' is also, confusingly, sometimes used to refer to permanent exclusion). Colleges also sometimes require members to live outside college premises. In a college or Proctorial context, `rustication' is exclusion for a specified period, usually expressed as a number of university terms.
72 Correlative implications of such orders which may need to be considered include freedom to enter for examinations; reckoning the time required for degrees; leave to supplicate for degrees; payment to the student of grants; and payment by the student of fees.
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(a) Procedures for appeal. There must be an appropriate procedure for appeal against any ban which is not trivial. Title XIV sets a period of two weeks as the point at which an appeal becomes available and this seems generally to be a suitable dividing line. We have recommended above (para. 34) that appeals against decisions by other university authorities should be heard by the Proctors, and appeals against decisions by the Proctors should be heard by the Disciplinary Court.
(b) Consultation and information. The authority imposing a ban should be required to inform others concerned. Departments and faculties should inform the Proctors and vice versa. The Junior Member's college should be informed, so that it may take appropriate congruent action (discussed below in paras. 78–81). We envisage that this could be dealt with by establishing a convention rather than by legislation.
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(a) misconduct involving university computer systems; and
(b) harassment, where an offence against the harassment regulation is a `university offence' which can be dealt with by the University even if all the persons concerned are members of the same college.
75 It was put to us by various college respondents that the present situation was unsatisfactory. The University should attempt to define areas where it would leave college codes to take priority, and the Proctors should not initiate action on misconduct which has already been dealt with in a college. There was, however, recognition that in some circumstances action at the university level is appropriate and some support for an attempt to negotiate guidelines, a concordat, or a formal mechanism of consultation.
76 We would not recommend any statutory limitation on the Proctors' powers in this regard, and think it may be difficult to formalise any sort of concordat between colleges and University in this delicate area, although the Proctors will doubtless consult colleges in particular cases. However, this consultative mechanism cannot bind the Proctors who must remain free after suitable consultation to take what action they think necessary.
77 Comments were sought in our discussion paper on the Proctors' right of access to college files. There was virtually unanimous opposition to giving any new powers in this respect. We do not think the need is sufficient to override the objections that have been received.
78 College and university jurisdictions will impinge when Junior Members are rusticated, suspended, sent down, or excluded. In the preceding section we underline the need for consultation, so that appropriate congruent action can be taken. A situation can arise in which a Junior Member is rusticated by university authorities but his or her college declines to act to exclude him. The opposite situation can also arise. There is confusion about the extent to which disciplinary action by colleges can (or should) affect the offender's access to university facilities.
79 College comments reflect a wide range of opinion. Half would favour legislation to ensure, at the end of the day, that congruent penalties are imposed. Others consider that in exceptional cases differences must be tolerated. One college expressed the view that university authorities should not act except with the agreement of the Junior Member's college.
80 This area is one which requires further discussion, perhaps initially between the Proctors and college deans. We refer this matter to Council.
81 In relation to graduate students, we received a specific proposal that colleges be required to consult the appropriate faculty board before sending down a student: if the board saw no academic reasons for the student to leave, the college should be asked to release the student to allow migration to another college to enable continuation of his or her studies. We refer this point also for further consideration by Council, or perhaps by the Graduate Studies Committee and the General Board in the first instance. In considering this matter, thought will need to be given to the question of migration in the context of disciplinary action (Ch. V, Sect. VIII, Statutes, 1995, p. 346).
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83 This point is one of peculiar difficulty. We are aware of several colleges which have recently had to confront the question of how to deal with an allegation of rape or serious sexual assault and have responded in different ways. The university authorities (the Proctors) have not as yet been faced with this dilemma. Difficult as it may be, we feel that Council may wish to consider the University's stance before, rather than after, a problem case arises.
84 The hardline construction of the Zellick guidance is that a university's disciplinary authorities, because they lack the forensic experience of the police and criminal courts in respect both of investigation and conduct of proceedings, should invariably refuse to involve themselves in any substantive action in respect of any serious criminal offence, and a fortiori in anything which might be the subject of a rape charge if the police were able to pursue it. (Zellick suggests—for guidance—that a `serious offence' should be any offence likely to attract a custodial sentence on conviction.) If adopted in Oxford, such a policy would not prevent a victim from approaching the Advisory Panel on Harassment, or making a complaint to the Proctors under Title IX, but in serious cases would preclude disciplinary action by them under Title XIII. The Regulation on Harassment makes all forms of harassment (whether more or less serious) a `university offence'. Unless the Regulation were to be amended to disapply the University's jurisdiction from the most serious forms of harassment such a policy would have to be implemented by the consistent exercise of the Proctors' discretion not to proceed against an alleged offender. The University's policy in this regard could no doubt be stated in the Proctors' Memorandum.
85 We think such a policy of non-involvement will normally be correct. The circumstances leading to the Zellick inquiry show the problems that can arise if a university attempts to investigate (and try) what, if proved, would be a serious offence, although press interest and criticism may be unavoidable whatever line is taken: the authorities are open to criticism either for a cover-up (if they try to handle a case internally) or for washing their hands of a problem (if they do nothing).
86 However, the response to our discussion document demonstrates that there are grey areas. Many consider it unacceptable that a possible offender should `get off' entirely as regards internal discipline because a victim will not face pressing a rape charge. There is a wish for some discretion to respond flexibly to different situations in which (without prejudging any criminal charge) it may be desirable to discipline an offender for unacceptable breach of general rules of good conduct within an academic (and, in the case of colleges, a residential) community.
87 The Zellick Report allows for certain exceptions even in respect of serious offences. Zellick would not totally preclude action by a university (a) where the police or Crown Prosecution Service decide not to prosecute (para. 15 of the Zellick Report) or (b) following a court conviction (paras. 31–3 of the Zellick Report). It is, however, positively against action where a victim will not co-operate with the police (`colleges should make it clear internal procedures cannot be invoked' (our emphasis), para. 14 of the Zellick Report).
88 The `hardline' Zellick approach (i.e. a policy of non-intervention by disciplinary authorities) has been criticised by some as offering inadequate protection to a victim/complainant (usually a woman) who might prefer to avoid court proceedings yet have some action taken internally. It should be borne in mind that in one respect (the wish for anonymity) the interests of the victim are more likely to be safeguarded in criminal proceedings than they can be in internal proceedings under university or college disciplinary codes. The identity of the victim may ultimately become public if the defendant seeks judicial review.
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90 Serious criminal conduct in relation to harassment, drugs, or domestic brawling is probably more likely to come to light at college than university level. In some cases it would not, in any case, constitute a `university offence'. However, the University now owns and manages graduate accommodation where there is the same scope for problems of this sort as in college accommodation. We understand that any apparent drugs offence on university premises would be taken straight to the police.
91 How far colleges may decide to follow a similar line is a matter for them, taking account of their position under the Misuse of Drugs Act 1971. [see Note 5]
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93 We have tried to bear in mind that the University's disciplinary procedures have to cope with many other types of student misconduct. We think that our recommendations are of sufficiently general application and that the Proctors and the court can deal with such difficult cases as may arise.
94 It was not our task to comment on the nature or definition of the offence of harassment. We note that the University's Code and Regulation on harassment are to be reviewed in the current academic year.
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96 The Proctors are required to publish annually the statistics of cases brought before them and the Senior Proctor's oration gives a further opportunity for publicity. It is appropriate that the giving of information on discipline should be a matter for the Proctors.
97 There may be some points of law or interpretation which could usefully be promulgated as they arise. We recommend above (paras. 48 (a) and 63) that the Disciplinary and Appeal Courts should be explicitly empowered to interpret statutes in relation to cases before them. We recommend that the courts be required to communicate their decisions taken on points of interpretation directly to Council in the form of a strictly confidential, anonymised report, so that Council can determine whether legislative changes are desirable; separately, to enable the rulings to be given a wider currency; case summaries, again anonymised with utmost care, should be published in the Gazette.
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99 At present, `Congregation shall have the power to deprive any graduate of the University of his or her degree or degrees for any reason it sees fit. The procedure for de-gradation shall be laid down by decree on each occasion' (Ch. I, Sect. I, § 4, cll. 1–2—Statutes, 1995, p. 178).
100 The current provision allows Congregation to deprive a graduate for conduct of any sort and at any time after the date of graduation. As far as we are aware, however, de-gradation has not been considered for any matter other than examination irregularities, e.g. plagiarism. We believe, since they have responsibility for examination conduct, that the Proctors should continue to investigate examination irregularities that come to light after graduation and be asked to consider in the first instance any other matters which might merit de-gradation and in each case report their findings to Council. However, we recommend that Council introduce a Standing Order requiring the Registrar to advise an Oxford graduate of Council's intention to put a special resolution to Congregation proposing that he or she be stripped of the degree(s) held and allowing the graduate to appeal to a small ad hoc body chaired by the High Steward.
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(i) whether the substance of the University's disciplinary code should be reviewed (para. 16);
(ii) the need for care in broadening the jurisdiction of the Proctors to include `associate students' (para. 21 (d));
(iii) the existence of some inconsistencies in the various registers referred to in Statutes, Decrees, and Regulations and Examination Decrees (para. 25);
(iv) whether special procedures should be introduced for misconduct or other problems associated with ill health (para. 70);
(v) how to carry forward the development of a concordat between college and university disciplinary authorities so that appropriate congruent action is taken (paras. 74–80);
(vi) the proposal that colleges be asked to release a graduate student to allow migration to another college prior to sending him or her down (para. 81).
102 We have not offered to Council draft legislation to effect any of our recommendations. We recommend that the officers be asked to draft appropriate legislation in the light of Council's discussion of our report.
103 In summary, the committee recommends in relation to disciplinary procedures:
(i) that the Proctors be asked to review the form of the Proctors' Memorandum with a view to its equating more closely to a complete code of student discipline (para. 17);
(ii) that the statutes be amended, so that rules, approved by the Proctors, governing such things as the facilities and services offered by a university officer or body (e.g. OUCS) be covered (para. 18);
(iii) that Visiting Students be required to give a broader undertaking than at present and that the application form for their admission be revised (para. 21 (a));
(iv) that Recognised Students be required to give an undertaking of the form required of Visiting Students (para. 21 (b));
(v) that non-matriculated students reading for university examinations be required to give an undertaking of the form required of Visiting Students (para. 21 (c));
(vi) that the definitions of the categories of membership of the University be reviewed (paras. 23–6);
(vii) that it be stated explicitly in the Proctors' Memorandum that (mis)conduct outside the geographical University may in certain circumstances constitute an offence over which the Proctors have jurisdiction (para. 27);
(viii) that complainants of harassment who wish to transfer the matter to a disciplinary channel should be clearly advised on what is involved in disciplinary proceedings so that they may make an informed judgement as to how to proceed with a complaint (para. 32);
(ix) that the Proctors be empowered to suspend a sentence they have imposed on a Junior Member pending an appeal to the Disciplinary Court (para. 33);
(x) that appeals against exclusions from university land and buildings be directed not to the Appeal Court but to the Proctors or, if the Proctors have themselves imposed the ban, to the Disciplinary Court (para. 34);
(xi) that the Proctors be empowered to refer a case before them directly to the Disciplinary Court (paras. 37–8);
(xii) that the Proctors be given new powers to make a range of banning orders (para. 41);
(xiii) that explicit reference be made in the statutes to the Proctors' power to exclude names from Class and Pass Lists while an examination irregularity is under investigation (para. 46);
(xiv) that the Disciplinary and Appeal Courts be empowered exclusively to interpret statutes, decrees and regulations as they bear on cases before them (paras. 48 (a) and 63);
(xv) that the Disciplinary and Appeal Courts be empowered to suspend all or part of a penalty imposed by the Proctors and Disciplinary Court respectively (paras. 48 (b) and 63);
(xvi) that the Disciplinary and Appeal Courts be empowered to make interlocutory orders (paras. 48 (c) and 63);
(xvii) that the Disciplinary Court be empowered to suspend a sentence it has imposed on a Junior Member pending an appeal to the Appeal Court (para. 48 (d));
(xviii) that a fall-back mechanism for appointments to the panels of the Disciplinary Court be introduced (para. 48 (e));
(xix) that the Clerk of the Court be required to retain the papers relating to the court's proceedings until they are no longer required, when they should be passed to the University Archives (para. 48 (f));
(xx) that the chairman of the Disciplinary Court be explicitly empowered to act alone in uncontentious procedural and technical matters (para. 49);
(xxi) that the courts be required to apply the civil standard of proof and that this requirement be set out in the statutes by reference to the civil standard (paras. 51 and 63);
(xxii) that a legal aid system for defendants and appellants be introduced subject to further consideration of the stringency of the means testing (paras. 54–5 and 63);
(xxiii) that the statutes be amended to confirm the power of the Disciplinary and Appeal Courts to permit a witness to have a legal adviser, and that it be open to grant a witness legal aid for this purpose (para. 58); [see Note 6]
(xxiv) that the Disciplinary and Appeal Courts be empowered to order the University to pay costs to a Junior Member at the conclusion of a hearing (paras. 61 and 63);
(xxv) that the maximum fine for minor `university offences' (to include compensation) be rebased at £200 (para. 66 (a));
(xxvi) that a maximum fine for major `university offences' be prescribed and be initially based at £1,000 (excluding compensation) (para. 66 (b));
(xxvii) that the maximum fines for minor and major `university offences' be indexed to the RPI (paras. 66 (a) and 66 (b));
(xxviii) that an explicit list as to the sentences which the Proctors and the Disciplinary and Appeal Courts may impose either singly or in combination be included in the statutes (para. 66 (c));
(xxix) that the Proctors be guided by the Zellick Report in relation to serious criminal misconduct (para. 89);
(xxx) that the Disciplinary and Appeal Courts be required to communicate their decisions on points of interpretation directly to Council and also to publish case summaries in the Gazette (para. 97);
(xxxi) that Council introduce a Standing Order requiring an Oxford graduate to be informed of Council's intention to propose to Congregation that he or she be deprived of his or her degree(s) and allow an appeal to be made (para. 100);
(xxxii) that the officers be asked to draft appropriate legislation, to effect the above recommendations, in the light of Council's consideration of this report (para. 102).
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1 To review the University's disciplinary procedures under Title XIII of the Statutes (i.e. the role of the Proctors under Title XIII, and the operations of the Disciplinary Court and the Appeal Court), in the light of recent experience.
2 To include within the scope of the review such matters as
(a) the desirability or otherwise of determining by decree the essential features of the procedures of the Disciplinary Court and the Appeal Court, and/or of expressly empowering those courts to make interlocutory orders in relation to the conduct of any particular case;
(b) the relationship between the power of the Proctors to `investigate complaints' under Title IX and the Proctors' responsibilities under Title XIII;
(c) the possible needs of the Proctors for legal support in the discharge of their disciplinary duties;
(d) the possibility of empowering the Proctors (instead of, as at present, empowering only a defendant before the Proctors) to refer a case which is before them to the Disciplinary Court;
(e) the question whether the Disciplinary Court when hearing an appeal against a proctorial decision, and the Appeal Court, should have express power to suspend a sentence pending an appeal against the initial verdict and/or sentence;
(f) whether the Disciplinary and Appeal Courts should have powers, and if so what powers, to award costs to either party i.e. including the University and not only to the accused or appellant;
(g) the possibility of establishing a panel of legally qualified members of Congregation willing to provide legal assistance (whether to the prosecution or the defence) in cases before the Disciplinary Court or the Appeal Court;
( h) the relationship between college and university jurisdictions;
(i) whether any standing guidelines should be drawn up in regard to the boundary between domestic (college or university) proceedings and criminal proceedings;
(j) the procedure for de-gradation; and such other aspects of the disciplinary procedures as the committee may judge it appropriate to consider.
3 In the course of the review, as it may judge appropriate to take evidence or seek advice relevant to its inquiries, for example from former Proctors, or from the Clerk and/or the Chairman of the Disciplinary Court.
4 To make recommendations to Council, including recommendations for any changes which it may consider desirable in the University's legislation relating to disciplinary procedures under Title XIII.
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2 A factor which led Council to establish the review was the expense borne by the University in resolving issues concerning student discipline. In any case before the Disciplinary Court, an unavoidable expense is the payment of the fees of the Clerk to the Court. The Proctors, however, may also require external legal representation: in the first of the two recent cases, the University's combined costs came to £21.1K (clerk £8.8K, instructing solicitors £10.3K, and barrister £2K), and in the second they came to £23.2K (clerk £5.3K, solicitors £17.9K). In addition, following the successful, but expensive, defence of the accused in the first case, Council made an ex gratia payment of £10K to assist the defendant's family in meeting the costs.[see Note 8]
3 In his oration before Congregation on 16 March 1994 the outgoing Senior Proctor (Dr P.A. Allen) drew attention to `the real danger of the Proctors being swamped in [the] pseudo-legal aspect of their work' and his concern `that Proctors with no legal training per se are required to tread through an increasingly litigious landscape'.[see Note 9]
4 Finally, the CVCP set up in November 1993 a task force to review student disciplinary procedures under the chairmanship of Professor G.J. Zellick, Principal of Queen Mary and Westfield College, University of London. The task force was established following a well-publicised case of alleged rape by a student of King's College, London. It issued an interim report in March 1994 inviting comments, which the University duly gave.
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The interim discussion document, issued in March 1995, received a wide circulation as follows:
—Heads of Societies
—JCR and MCR Presidents
—Chairmen of Law Faculty, Law Faculty Board, Senior Tutors' Committee,
Committee for the Tutors for Graduates
—The Clerk and members of, and certain participants in the proceedings
of, recent cases before the Disciplinary Court
—Bodleian Library Standing Committee
—various senior University Officers
—Director of the OUCS
—OUSU and OUGU
—the Clinical Medicine Board Working Party on student disciplinary
matters
—Council's Committee on the Review of the Proctors' Office
—Advisory Panel on Harassment
—departmental harassment advisers (extract only)
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—To damage or deface any property of the University or of any college except of college property by a member of that college (Tit XIII, cl. 2 (a) (ii) and cl. 9 (a)).
—To occupy or use or attempt to occupy or use any property of the University or of any college except as may be expressly or impliedly authorised by the university or college authorities concerned except of any property of a college by a member of that college (Title XIII, cl. 2 (a) (iii) and cl. 9 (a)), e.g. to be in breach of any rule or regulation drawn up by a competent authority (Tit. XIV, Sect. I, cl. 2).
—To forge or falsify any university certificate or similar document or knowingly make false statements concerning standing or results obtained in examinations (Tit. XIII, cl. 2 (a) (iv)).
—Failure to comply with the provisions of the code of practice on freedom of speech issued from time to time by Council pursuant to the duty imposed by Section 43 of the Education (No. 2) Act 1986 and duly published in the University Gazette (Tit. XIII, cl. 2 (b)).
—Breaches of the regulations or rules or other provisions covering the dress of Junior Members, the use of libraries, or conduct in examinations (Tit. XIII, cl. 9 (a) and cl. 5 (b)).
—Breaches of any regulations or rules relating to clubs, publications, and motor vehicles (Tit. XIII, cl. 9 (a)).
—Intentionally and without lawful authority to deface any building, wall, fence, or other structure within six miles of Carfax by inscribing thereon any writing or posting thereon any bill (§ 3 of the Regulations of the Rules Committee). [see Note 11]
—To misbehave after examinations (§ 4 of the Regulations of the Rules Committee).
—To harass any member of the University or any member of staff of the University or any other person for whom the University has a special responsibility (§ 5 of the Regulations of the Rules Committee).
—To occupy or use or attempt to occupy or use any property of a college except as may be expressly or impliedly authorised by the college authority concerned in the case of a member of that college (Tit. XIII, cl. 2 (a) (iii) and cl. 9 (a)).
—Breach of § 1 of the Regulations of the Rules Committee concerning clubs, societies, and publications.
—To park a motor vehicle on any land of the University without the express permission of the person or body which has charge of that land (§ 2 of the Regulations of the Rules Committee).
—To participate in any sports tours which involve overseas travel during Full Term without the prior permission of (1) the Senior Tutor of that member's college; and (2) the Proctors (§ 6 of the Regulations of the Rules Committee).
—To participate in rowing on the river between the hours of 8.30 a.m. and 1 p.m. from Monday to Friday inclusive during Full Term without the prior permission of the Proctors (§ 7 of the Regulations of the Rules Committee).
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1 The essence of misconduct under this Code is improper interference, in the broadest sense, with the proper functioning or activities of the institution, or those who work or study in the institution; or action which otherwise damages the institution.
2 The following paragraphs elaborate this general rubric, but not so as to derogate from its generality. This Code is not an Act of Parliament or part of the law of the land and it does not therefore seek to reflect or incorporate the approach of the criminal law in defining criminal offences with great precision. The purpose of the Code is to regulate students' behaviour as students of the University in order to secure the proper working of the University in the broadest sense.
3 Nevertheless, serious consequences may follow a finding of misconduct. It is therefore necessary in every case for it to be shown that the conduct in question does fall within the general rubric in paragraph 1 before it may be characterised as misconduct. It is also open to a student facing a complaint of misconduct to argue that the conduct in question, whether or not falling within one or more of the following paragraphs, should not be treated as misconduct because it does not interfere or damage in the manner contemplated by the rubric.
4 The following shall (subject to the above) constitute misconduct:
(1) disruption of, or improper interference with, the academic, administrative, sporting, social or other activities of the University, whether on University premises or elsewhere;
(2) obstruction of, or improper interference with, the functions, duties or activities of any student, member of staff or other employee of the University or any authorised visitor to the University;
(3) violent, indecent, disorderly, threatening or offensive behaviour or language whilst on University premises or engaged in any University activity;
(4) fraud, deceit, deception or dishonesty in relation to the University or its staff or in connection with holding any office in the University or in relation to being a student of the University;
(5) action likely to cause injury or impair safety on University premises;
(6) sexual or racial harassment of any student, member of staff or other employee of the University or any authorised visitor to the University;
(7) breach of the provisions of the [University's Code of Practice on Freedom of Speech [see Note 13] or of] any [other] Code or University rule or regulation which provides for breaches to constitute misconduct under this Code;
(8) examination offences;
(9) damage to, or defacement of, University property or the property of other members of the University community caused intentionally or recklessly, and misappropriation of such property;
(10) misuse or unauthorised use of University premises or items of property, including computer misuse;
(11) conduct which constitutes a criminal offence where that conduct—
(a) took place on University premises, or
(b) affected or concerned other members of the University community, or
(c) damages the good name of the University, or
(d) itself constitutes misconduct within the terms of this Code, or
(e) is an offence of dishonesty, where the student holds an office of responsibility in the University;
(12) behaviour which brings the University into disrepute;
(13) failure to disclose name and other relevant details to an officer or employee of the University in circumstances when it is reasonable to require that such information be given;
(14) failure to comply with a previously-imposed penalty under this Code.
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2 The Magistrates' Court's legal aid questions are addressed by the Clerk of the Court, and we propose that in Oxford such questions should be considered by the Clerk of the Disciplinary Court with the right of appeal against his or her decisions to the Disciplinary Court itself.
3 In keeping with the application procedures for legal aid in the Magistrates' Court, we propose a two-fold test for legal aid support in the University's Disciplinary Court. First, is it in the interests of justice for a person to be legally represented? Second, in financial terms, does the person need assistance? Applications for legal aid will be made on a standard form, a draft copy of which is annexed at H.
4 It is understood that the Clerk of the Oxford Magistrates' Court uses a formula as a basis of financial assessment. Up to 100 per cent allowance is made for certain items of expenditure. For example, all rent is allowed, but only half of declared expenditure on bed and breakfast is allowed. The second part of the form which considers this question will be considered in a similar manner to the University's Access Fund applications. In 1994–5 applicants to the Access Funds were successful if their assessed expenditure exceeded their assessed income by more than about £150; they received grants of approximately two-thirds of their deficit. A `typical' undergraduate on a full grant, living in college-owned accommodation in term time only was considered to have a disposable income of at least £600. On the other hand a mature undergraduate in receipt of a full loan, but living in commercial accommodation for a full year, might have been deemed to have a net deficit over the year in excess of £1,700. We would not expect a typical undergraduate to receive any university legal aid.
5 Once legal aid has been granted it is paid (regardless of the outcome of a case) directly to the solicitor employed. The current criminal legal aid rates are as follows:
Letters and calls £3.40 per item Travel to and from court £24.50 per hour Preparation including interviewing clients £44.00 per hour Advocacy, i.e. appearing in court £55.50 per hourAt the conclusion of a case the solicitors' costs are `taxed' and it is open to the court to argue that, for example, a particular item of work need not have taken as many hours as is claimed. (It should be noted that a solicitor working for a private client, that is not one who is legally aided, might charge in excess of £100 an hour for the sort of work under discussion.)
6 It is estimated that the costs for the defendants in the two previous cases before the Disciplinary Court would have been in the region of £5,000 each if legal aid had been provided. To this sum must be added the expenses to the University of employing the services of the Clerk of the Disciplinary Court to assess applications for legal aid. The present Clerk estimates that an application would take approximately one-half of a day to assess.
7 Legal aid for witnesses in cases before the courts is not available and so there is no model which the University may adopt in considering applications for legal aid by witnesses in cases before the University's courts. The form annexed at H could, however, be used by a witness also.
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Term of matriculation . . . . . . College . . . . . . . . . . . . . . . .
Correspondence address. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Permanent home address (if different) . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
of (firm's name and address). . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[box] It is likely that I will suffer serious damage to my reputation.
[box] A substantial question of law is involved.
[box] I shall be unable to understand the court proceedings or state my own case.
[box] Witnesses have to be interviewed on my behalf.
[box] The case involves expert cross-examination of a prosecution witness.
[box] It is in someone else's interests that I am represented.
(LEA or research council) . . . . . . . . . . . . . . .£. . . . . . . .
LEA-assessed contribution by parents in respect of maintenance £. . . . . . .
Any other parental/family/private contributions £. . . . . . . .
Student Loan £. . . . . . . .
Sponsorship £. . . . . . . .
College grants. Specify . . . . . . . . . . . . . . . . .£. . . . . . . .
Income from savings. Specify. . . . . . . . . . . . . . .£. . . . . . . .
University grants. Specify. . . . . . . . . . . . . . . .£. . . . . . . .
Housing, Child, Unemployment Benefit or Income Support. Specify . . . . . . . . . . . . . . . . . . . .£. . . . . .
College equalisation scheme £. . . . . . . .
Other, including loans. Specify . . . . . . . . . . . . .£. . . . . . . .
Capital. Specify. . . . . . . . . . . . . . . . . . . . .£. . . . . . . .
Rent or mortgage paid at one time £. . . . . . . .
Number of times this is paid in the academic year
Total rent or mortgage £. . . . . . . .
College equalisation scheme £. . . . . . . .
Utility bills £. . . . . . . .
Child-care costs. Specify. . . . . . . . . . . . . . . . .£. . . . . . . .
Costs due to disability of medically prescribed dietary requirements £. . . . . . . .
Travel to and from parental home £. . . . . . . .
Signed. . . . . . . . . . . . . . . . . . Date. . . . . . . . . . . . .
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(a) the suspension, pending appeal, by the Proctors or the Disciplinary Court of sentence which they have imposed;
(b) the suspension, pending hearing of an appeal, by the Disciplinary Court or the Appeal Court, of a sentence imposed respectively by the Proctors or the Disciplinary Court;
(c) the Zellick sense of an order banning a Junior Member from access to university facilities while investigations are pursued by the police - a holding measure and not a penalty;
(d) a similar order imposed as a penalty by the Proctors, the Disciplinary Court, or the Appeal Court after conviction (commonly described as `sending down' or `expulsion');
(e) the suspension by the Proctors of the implementation of a sentence,
subject to good behaviour by the guilty party.
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(a) producing or attempting to produce a controlled drug in contravention of section 4(1) of this Act;
(b) supplying or attempting to supply a controlled drug to another in contravention of section 4(1) of this Act, or offering to supply a controlled drug to another in contravention of section 4(1);
(c) preparing opium for smoking;
(d) smoking cannabis, cannabis resin or prepared opium.'
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[Note 7] As agreed by Council on 25 April 1994 (see
HCP, Vol. 338, pp. 81, xvi(9)), and amended (by the addition of
2(j)) on 6 June 1994 (ibid. p. lix(26)).
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[Note 9] Gazette No. 4322, 24 March 1994, p.
925.
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[Note 10] To preserve the anonymity of certain
individuals this list is not exhaustive.
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[Note 12] Reproduced from the Notes of Guidance Student
Disciplinary
Procedures (CVCP, 1994).
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[Note 13] For those institutions to which s. 43 of the
Education (No. 2) Act 1986 applies.
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[Note 14] Delete as appropriate.
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