"Perhaps we need, instead, a specific tribunal to investigate and hear the most serious allegations", says Guy Micklewright
Guy Micklewright writes for Times Higher Education (THE), published on 23 April 2024
Last year, England’s Office for Students consulted on a proposal to impose substantive obligations on English higher education institutions to protect students from harassment and sexual misconduct.
The consultation was launched against a backdrop of increasing concern that students are not adequately protected from serious sexual misconduct, as well as sexual and racial harassment. In a 2022 survey conducted by UniSAFE across 15 countries, 31 per cent of respondents reported experiencing sexual harassment, for instance. A 2022 House of Commons research briefing cited research indicating that 61 per cent of non-binary university students had experienced sexual violence. And the Equality and Human Rights Commission’s 2019 inquiry into racial harassment highlighted that 24 per cent of ethnic minority students have experienced racial harassment on campus.
These are shocking statistics, and the OfS is concerned that self-regulation by universities and colleges has failed to properly address the problem. But Universities UK has for the most part not welcomed its plans for stronger regulation, arguing that “a continuation or evolution of the current collaborative, self-regulatory approach would be far more appropriate”.
Prior to 2016, universities’ position was that misconduct that amounted to a criminal offence, and certainly a serious criminal offence, could only be dealt with by the police – and only if the victim so chose. It was established practice that rape and sexual assault should never be investigated via internal disciplinary procedures and should only be reported to the police without the complainant’s consent in exceptional circumstances.
However, UUK’s 2016 guidance document, “How to Handle Alleged Student Misconduct Which May Also Constitute a Criminal Offence” (supplemented in March with a set of case studies) takes a slightly different approach. It makes clear that if the allegation is not subject to criminal investigation and there aren’t exceptional circumstances to justify a referral to the police without the complainant’s consent, the university should take disciplinary action itself provided that, as the supplemented guidance underlines, the misbehaviour in question is framed not as a criminal offence but as a breach of contract between the student and the university regarding behavioural standards.
One problem is that those whose actions amount to a serious criminal offence are potentially avoiding the criminal justice system if they are only sanctioned by the university. On the other hand, findings of serious sexual misconduct, domestic violence, and sexual harassment are very serious and are likely to follow the student for the rest of their academic career and beyond. And, all too frequently, university disciplinary procedures are completely ill-equipped to carry out a fair fact-finding exercise.
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Guy Micklewright is a specialist fitness to practise, disciplinary and regulatory barrister acting for regulators and registrants. He has practised in the area for 16 years, acting for both regulators and individuals subject to regulatory action. Guy has particular experience of complex disciplinary cases before a variety of healthcare, accountancy, legal, and engineering regulators.
Guy is recognised in Chambers & Partners and in the Legal 500 UK Bar Guide as a leading junior for his work in professional discipline and regulatory work.
