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Procedural Fairness . OIA Policy Seminar Plagiarism & Academic Misconduct 4 November 2009 Susanna Reece Deputy Adjudicator. Natural Justice . Principle of legal philosophy Applied in Common Law jurisdictions Incorporates procedural fairness - “The duty to act fairly”. Natural Justice.

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procedural fairness

Procedural Fairness

OIA Policy Seminar

Plagiarism & Academic Misconduct

4 November 2009

Susanna Reece

Deputy Adjudicator

natural justice
Natural Justice
  • Principle of legal philosophy
  • Applied in Common Law jurisdictions
  • Incorporates procedural fairness - “The duty to act fairly”
natural justice1
Natural Justice
  • Underpinning philosophy:
    • People are basically good
    • Persons of good intent should not be harmed
    • Treat others as you would like to be treated
natural justice2
Natural Justice
  • 2 fundamental principles for a fair trial or valid decision:
    • "nobody shall be a judge in his own cause",nemo iudex in causa sua: invalidates any judgment where there is bias or conflict of interest or duty; and
    • "hear the other side", audi alteram partem: giving at least a fair opportunity to present one's case (which may, for example, require access to legal representation).
natural justice3
Natural Justice
  • Reasonableness – a third principle?
    • The requirement of "reasonableness", defined in the Wednesbury case, is sometimes treated as a further principle of natural justice.
    • Cf. the OIA approach to “fair and reasonable in all the circumstances”
fairness and the law
Fairness and the law
  • Contract – a right to advance warning
  • Crime – adequate notice or proceedings, including any charges
  • Higher Education context –contractual issues and quasi-judicial/criminal proceedings
fairness and the law1
Fairness and the law
  • Plagiarism and intent
  • Burden of Proof
    • Is the onus on the student or the University to prove/disprove the charge?
  • Standard of Proof
    • Is the evidence being tested on the balance of probabilities (civil standard)
    • Or beyond reasonable doubt (criminal)?
    • Healthcare–S112 Health and Social Care Act 2008
fairness and proceedings
Fairness and Proceedings
  • Proceedings should:
    • Be fair to all parties
    • Entitle each party to be heard
    • Entitle each party to ask questions and contradict the evidence of the opponent
    • Ensure that justice has been seen to be done
fairness and decisions
Fairness and Decisions
  • Decision makers should:
    • Declare any personal interest in proceedings
    • Be unbiased and act in good faith
    • Not be one of the parties or have an interest in the outcome
    • Take into account relevant matters, and any extenuating circumstances, and ignore the irrelevant
fairness and decisions1
Fairness and Decisions
  • Is there a duty to give reasons?
    • Case law that says people should be given reasons for a decision that affects them – need not be lengthy
    • Findings of fact and opinion
    • Reasons for the imposition of a penalty
    • OIA view: good practice to make clear grounds for decisions. Recipient should know basis for any challenge or appeal.
oia examples
OIA examples
  • Confusion of roles
    • Instigator of plagiarism allegation chairs a panel to determine outcome / appeal
  • Fairness to all parties
    • Two accused – one’s case is heard first and his story is believed. Second student is then found to be the guilty one. Consequences?
oia examples1
OIA examples
  • Do students know what plagiarism is?
    • Clarity of regulations
    • Clarity of communication
  • Consistency of decision making
    • Across and within departments
    • Across the HE sector as a whole
  • Can plagiarism be mitigated?
oia examples2
OIA examples
  • Procedures not followed
    • Delegated decision-making
    • Short notice of appeal (2 hours by e-mail!)
    • “Poor academic practice” substituted – with worse consequences for the student
  • Delay – what are the consequences?
  • Anonymised case studies and digest
better regulation a way forward
Better Regulation- a way forward?
  • Five principles of good regulation:
    • transparent
    • accountable
    • proportionate
    • consistent
    • targeted – only at cases where action is needed
  • Better Regulation Executive (BRE) - part of BIS