Going to university is a time of freedom, learning, making mistakes, living independently and making the transition away from living under the sometimes watchful eye of parents. It is a halfway house between having full independence and being sheltered from the outside world, or so it should be. Parents entrust universities to protect and safeguard the students as well as helping them further their learning.
There has been an increase in allegations and reports of sexual misconduct following #metoo; this combined with students indulging in alcohol, sex and freedom makes university an environment where boundaries are even more blurred. The approach universities take in dealing with complaints are varied and can seriously impact on criminal investigations. Universities owe a duty of care to all their students. The difficulty they face is balancing the rights of the complainant against the accused. The gravitas of such a situation involves safeguarding, preserving evidence and allowing fairness and support for both parties. Sometimes complaints are made to universities where the complainant wants the university to act and not report the matter to the police. There have been a number of cases that have received much publicity over the poor handling of such allegations. The question is whether universities have the powers, authority or expertise to conduct such investigations or to act accordingly.
In 1992 Austen Donnellan, a 20 year old student at Kings College London was accused of raping a fellow student. He was subject to the university investigation and then a criminal investigation, in which he was acquitted. He subsequently brought successful civil proceedings against the university for their prejudicial and inadequate investigation. Borne out of these events, in 1994 the ‘Task Force on Student Disciplinary Procedures Report’ by Graham Zellick was published and has been the authority on how universities should conduct investigations for over 20 years, albeit that they are non-statutory and non-binding. The report advises that under no circumstance should universities deal with behaviour amounting to serious criminal offences under their own disciplinary structures. Students should be advised to report such matters to the police for criminal proceedings to be brought if the police and Crown Prosecution Service decide there is sufficient evidence and it is in the public interest to do so.
Issue has been taken with the advice that universities should refuse to undertake an internal investigation into sexual misconduct. There has been increasing pressure on universities to ‘take action’. In 2015 Ms Elizabeth Ramey unsuccessfully sought a judicial review of Oxford University’s policy to refuse to investigate her rape allegation. Her application was refused as she was no longer a student at Oxford and the policy she sought to have reviewed had not been applied to her. In any event, there was much sympathy for her cause in the mainstream media.
In 2015, the NUS asked its members whether the guidance formulated in the Zellick Report was ‘fit for purpose’. In its briefing document they suggested that there were five particular areas of concern with the Zellick guidance:
- That the report was out of date and potentially unlawful under the Equality Act 2010. The Act places a number of requirements on universities to eliminate discrimination, harassment and victimisation, advance equality of opportunity and foster good relations;
- That universities are advised to direct allegations to the police. As ‘only 1 in 5’ allegations to the police result in court proceedings, and these take an average of 1 year and 4 months to reach a verdict, it is likely that the perpetrator will never have any sanction imposed on them by the university as they will have finished their course;
- That it does not provide for the balancing of rights of the accused versus the rights of the victim. The Zellick report’s guidance is ‘ultimately an attempt to ensure that a Higher Education Institution is not subject to prosecution’;
- It does not create a safe environment for students as it leaves victims exposed to being targeted again by the perpetrator;
- The report does not provide specific guidance on how universities should respond to complaints or the assistance victims may require through the reporting process.
Additionally, the UUK published the report ‘Changing the Culture’, making recommendations based on the work of the taskforce in 2016. In addition, The Guardian and other newspapers have consistently reported on failures of universities to ‘take action’ against perpetrators of sexual misconduct.
The problem with universities investigating criminal allegations is that they are ill equipped to do so. The main safeguards of the criminal justice system are often absent from the process. Police interviews are carried out under the prescriptive guidance of the Police and Criminal Evidence Act 1984 (‘PACE’) Code E, to protect the accused from the risk of coercive practices. Before any interview is conducted, the accused must be given sufficient disclosure of the case against them to enable them to properly answer questions. Such an account will be given under caution, the accused must be advised of their right to free and independent legal advice and the accused can refuse to answer questions.
Universities conduct interviews with students without the safeguards of a police interview, and as the notes of university meetings can be submitted to the CPS and used in a criminal investigation there are dangers where there has not been due process. If the complainant has decided to pursue criminal proceedings as well, then there could be the issue of having parallel proceedings. This clearly has the potential to interfere and prejudice the criminal investigation.
Lecturers who are appointed to conduct these investigations are often untrained individuals. Although some are law lecturers, they are likely to have had little experience of criminal law. This combined with the fact that the standard of proof for the matter is on the balance of probabilities makes for a precarious procedure. Any finding by the university can cause someone to lose their degree and/or place to study. The ramifications of this is potentially far-reaching and hugely damaging.
In the wake of the reports and controversies, the Task Force initiated a review of the Zellick Report. This was published in 2016 and is titled ‘Guidance for higher education institutions: how to handle alleged student misconduct’, drafted by Universities UK and Pinsent Masons. The advice does put more of an onus on universities to investigate and says that internal investigations should not be avoided just because an allegation constitutes a criminal offence. However the guidance contains the following extract:
‘A university cannot make a finding about whether or not an accused student has raped a reporting student because that is a criminal offence and is a decision that only a criminal court can take. However, a university can decide if there has been a breach of discipline.’
The guidance also provides that the investigation must be conducted by trained individuals and that if there are criminal proceedings, internal investigations should be halted and not run parallel to these. It should be noted that once again, this guidance isn’t binding. It is unlikely that those parties calling for universities ‘to take action’ will be satisfied with this new guidance. However, what is most important is that if investigations do take place, they are fair, not duplicitous, and rights are safeguarded.
If you’re under investigation or are facing trial, call us on 020 7698 4468 to find out how we can help you.
 National Union of Students, 2016, How to respond to complaints of sexual violence: The Zellick report, <https://universityappg.co.uk/sites/default/files/field/attachment/NUS%20Zellick%20report%20briefing.pdf> [last accessed 31.05.19].
 Universities UK, 2016, Changing the Culture: Report of the Universities UK Taskforce examining violence against women, harassment and hate crime affecting university students, <https://www.universitiesuk.ac.uk/policy-and-analysis/reports/Documents/2016/changing-the-culture.pdf> [last accessed 31.05.19].
 Universities UK, 2016, Guidance For Higher Education Institutions: How To Handle Alleged Student Misconduct Which May Also Constitute A Criminal Offence, <https://www.universitiesuk.ac.uk/policy-and-analysis/reports/Documents/2016/guidance-for-higher-education-institutions.pdf> [last accessed 31.05.19].