Report of the Committee to Review Disciplinary Procedures - (3) to No 4388



<br /> Oxford University Gazette: Review of Disciplinary Procedures<br /> (supplement)

Oxford University Gazette

Report of the Committee to Review Disciplinary Procedures

Supplement (3) to Gazette No. 4388

Monday, 29 January 1996



Contents of the supplement:

To Gazette No. 4389 (1
February 1996)

To Gazette
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[Prefatory note]

Council has given initial consideration to this report and has endorsed the
majority of the review committee's recommendations subject to further
reflection and consultation as detailed below. Council has also agreed that
the committee should proceed to undertake further consideration of matters
which, whilst they do not bear on disciplinary procedures, were perceived to
need review by the committee. These matters are detailed in para. 101 of the
report.

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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REPORT OF COUNCIL'S COMMITTEE TO REVIEW DISCIPLINARY PROCEDURES


Introduction


Establishment of the committee

1 The committee was established by Council in Trinity Term
1994 `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 operation
of the Disciplinary Court and the Appeal Court), in the light of recent
experience'. The committee was asked to consider ten specific matters, to take
evidence or seek advice as it judged appropriate, and 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.' The full terms of reference are annexed at A. The
background leading to the establishment of the review (including the `recent
experience') is in Annexe B.


Membership and procedure

2 The Principal of St Hilda's College chaired the committee.
The other members were the Principal of St Edmund Hall, Mr M.H. Matthews of
University College, Dr J.C. McCrudden of Lincoln College, and the Senior
Proctor for the time being (Dr J. Pallot, Christ Church, from the inception of
the committee until March 1995, and Dr J.A. Black, Wolfson College,
thereafter). The Principal of St Edmund Hall attended all meetings until July
1995 but resigned his membership in September 1995. We did not ask Council to
appoint a successor given the advanced stage of our work.

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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The Zellick Report

4 In December 1994 the CVCP (Committee of Vice-Chancellors
and Principals) published notes of guidance for universities entitled Student
Disciplinary Procedures, prepared by a task force under the chairmanship of
Professor G.J. Zellick, Principal of Queen Mary and Westfield College,
University of London (`The Zellick Report'). We found this report very useful
as a benchmark in considering the University's disciplinary procedures.


Scope of the committee's terms of reference

5 We draw attention to the scope of our terms of reference
because some reactions suggest an expectation that our report should have gone
wider than it does.

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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General points

9 The Zellick Report offers some principles and propositions
against which universities are encouraged to test their student disciplinary
procedures. Before addressing the particular questions posed by Council, we
summarise three such general issues:

(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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Features of Oxford's disciplinary procedures

10 There are features of the Oxford system which would make
it impossible, even if it were desirable, to proceed (as we understand at
least one other university has done) and simply incorporate Zellick's model
clauses into the statutes. Junior Members of this University are subject to
the jurisdiction of their college as well as, and independently of, that of
the University: the University's departments, libraries and OUCS (the Oxford
University Computing Services) have their own local rules. The historic role
of the Proctors is unique to Oxford and Cambridge. The University's
constitution entails considerable formality and complexity in law-making.

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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University Discipline—the present system

13 The University's codes and disciplinary rules apply to
conduct of various sorts defined in or under the statutes, Council decrees,
regulations or rules:

—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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Jurisdiction

19 A Junior Member is defined in the Proctors'
Memorandum
as `a member of the University who has not been admitted to
membership of Convocation', i.e. has yet to supplicate for the MA, following
the statutory definition in Title XIII.

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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Non-members of the University


21
The Proctors have no general statutory jurisdiction over persons
who are not members of the University. This has implications for the
following:

(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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Definition of categories of membership

23 The present statutory distinction between Junior and Senior
Members seems to us, however, to be inadequate. Tit. XIII, cll. 3 and 11
assume that members of the University can be classified as either Junior or
Senior, and that the categories are mutually exclusive. This is not the case.
A person could fall into both categories or neither. A matriculated person
upon whom the Oxford MA had not been conferred would in theory remain forever
subject to the jurisdiction of the Proctors, since he or she would remain
classified as a Junior Member. Such a person may subsequently be employed by
the University, and thereby also become subject to the jurisdiction of the
Visitatorial Board. It is not uncommon for a D.Phil. student to take the
Oxford MA before completing the research leading to the D.Phil., thereby
ceasing to be classified as a Junior Member, but such a person is not normally
regarded as a Senior Member.


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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Geographical limits of jurisdiction


27
There may be the potential for dispute over the geographical
jurisdiction of the Proctors—a point drawn to our attention by the
Zellick Report. We are not aware that it has caused any practical problems in
Oxford. However, we recommend for the avoidance of doubt that it be stated
explicitly in the Proctors' Memorandum that (mis)conduct outside
the geographical University (for example on a field trip, or in an institution
where a student is on an exchange or work placement or through use of the
University's computers from anywhere over a network) may in certain
circumstances constitute an offence over which the Proctors have jurisdiction.
We think this is implicit in the present rules and does not require to be
stated in the statutes.


The Proctors' disciplinary role


28
The overwhelming majority of disciplinary cases adjudicated by the
University are determined in the Proctors' `court'. (There is no reference to
a Proctors' `court' in the statutes, but it is a phrase in common parlance.)
So far as the typical Junior Member is concerned, the procedures here are what
really matter. The likelihood of becoming involved with the Disciplinary Court
is remote.


Investigation by the Proctors


29
Council invited us to consider a number of points relating to the
Proctors, and others were raised with us during the process of consultation.
The most substantial question is touched on in a glancing way in item 2
(b) of our terms of reference. This is whether it is right in
principle for the same persons (the Proctors) to combine the roles of
investigating complaints, investigating misconduct, hearing and adjudicating
(on those cases they determine), and prosecuting (in relation to cases taken
to the Disciplinary Court). Objection was also expressed by one respondent to
the fact that under the statute it is the Proctors' initial view on a
potential penalty for the charge brought that determines whether the offence
is to be treated as `major' or `minor' and hence the subsequent procedural
options. It is also the case that, before proceeding with any alleged offence,
the Proctors `must believe that an offence has been committed' (Tit.
XIII, cl. 11, Statutes, 1995, p. 97—our emphasis).


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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32
We find nothing wrong with the present arrangements, and see no
need to recommend any substantial change in the Proctors' powers or procedures
nor in their practice of determining cases on the balance of probabilities.
Our interim discussion document discussed at length the question of the
compatibility of the Proctors' power to investigate complaints under Title IX
(`The Proctors shall be available for consultation ... may investigate
complaints ... shall generally ensure that the statutes, customs, and
privileges of the University are observed'—Tit. IX, Sect. VI, § 3,
cl. 5, Statutes, 1995, p. 68) and their disciplinary
responsibilities under Title XIII, especially in relation to complaints of
harassment. We proposed that complainants should be clearly advised on what is
involved in disciplinary proceedings. The Advisory Panel on Harassment
commented in its response that it is `inappropriate for harassment advisers to
focus on disciplinary matters at early stages in the advisory process',
because `the function of harassment advisers primarily relates to [an]
informal approach, and is thus not to receive complaints, but to offer advice,
information and support. Contacting a harassment adviser does not imply any
commitment to formally registering a complaint.' Furthermore they note that `a
very tiny proportion of complaints of harassment reach the Proctors'. Our
proposal was not intended to conflict in any way with this understanding of
the panel's role but to ensure that in those cases where a complainant wishes
to move a complaint into the disciplinary channel this is done in full
understanding. We therefore recommend that complainants be
clearly advised on what is involved in disciplinary proceedings.


Suspension of sentence pending appeal


33
The Proctors, when sentencing a Junior Member, advise on the
procedure for him or her to appeal against their verdict and/or sentence. It
is not explicit that the Proctors may suspend "#1Note">[see Note 1] their sentence pending appeal to the Disciplinary
Court and we recommend that Title XIII be amended to effect this. This will
require a change to Tit. XIII, cl. 33 (a), in which a fine imposed by
the Proctors must be paid within seven days whether or not an appeal is
pending.

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Appeals against exclusion orders


34
Under Tit. XIV, Sect. I, cl. 3 (Statutes, 1995 p.
104), any Junior Member excluded from university land or buildings by the
competent authority for more than two weeks may appeal against the order to
the Appeal Court. (We are not aware of this provision ever having been
utilised.) The Appeal Court is composed of the High Steward (or deputy) and
two persons appointed by the Visitatorial Board (see Tit. XIII, cl. 25, ibid.,
p. 100). We take the view that an appeal against an exclusion order does not
demand consideration by the High Steward and recommend an
amendment to Title XIV such that appeals against exclusions are made to the
Proctors or, if the Proctors themselves imposed the exclusion order, to the
Disciplinary Court. Appeals to the Proctors under our proposed amendment would
be a new departure: the decision by the Proctors on such an occasion would be
final and not subject to appeal to the Disciplinary Court. Other
recommendations concerning the Appeal Court are dealt with below (para. 63).


Legal support for the Proctors


35
We were invited to consider the Proctors' need for legal support
in the discharge of their disciplinary duties (item 2 (c) of our
terms of reference). Although one respondent expressed the contrary view, we
are persuaded that present-day Proctors on occasion need access to legal
advice in connection with their disciplinary duties. We believe that present
arrangements for access to this advice are satisfactory. In the course of our
inquiry, new budgetary arrangements were proposed. A budget for external legal
advice is set on the understanding that any underspend is returned to the
General Fund at the year end, and any overspend is carried by the General
Fund. This will give the Proctors their own budget for this purpose and should
ensure (although we were assured that this is already the case) that a
considered decision to take legal advice can never be blocked on financial
grounds. Of course, in many cases professional advice can be, and indeed is,
obtained by the Proctors internally from the Registrar's staff.


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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Referral of a matter before the Proctors to the
Disciplinary Court


37
We were invited to consider whether the Proctors should be given a
new power to refer a case before them to the Disciplinary Court (item 2
(d) of our terms of reference). At present, a defendant charged with
a major offence who is prepared to submit to the jurisdiction of the Proctors
has an absolute right to do so. This accords with the recommendation of the
Hart Committee [see Note 2] that
`major offences should be referred to the Disciplinary Court if the person
charged wishes this to be done, but otherwise should be dealt with by the
Proctors summarily' (our emphasis).


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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Suspension of status

[see Note
4]


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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Class and Pass Lists


46
The Proctors are ultimately responsible for the conduct of
examinations and the authorisation of publication of Class and Pass Lists. We
recommend explicit reference in the statutes to the Proctors' implicit right
to exclude names from Class and Pass Lists while an examination irregularity
is under investigation.


The Disciplinary Court


47
It is rare for cases to reach the Disciplinary Court. The court
hears (a) appeals from decision taken by the Proctors; and
(b) cases of `major university offences', at the option of the person
charged (see Tit. XIII, cl. 20, Statutes, 1995, p. 100). Even if
the Proctors are given a new power to take cases direct to the court, we do
not envisage a flood of such cases. It is nevertheless desirable, in the light
of experience of the cases determined recently by the court, and of new points
raised in the Zellick Report, to review the procedures generally.


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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In respect of other procedural matters, we recommend

(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.


Standard of proof to be used in the Disciplinary
Court


50
We have considered the question of the standard of proof. On this,
conflicting views have been expressed to us. On the one hand, it has
been argued that a conviction for a serious offence (e.g. cheating or
harassment) is likely to have far-reaching consequences for a Junior Member's
career. It may operate as a continuing penalty, if referees are aware of the
conviction and feel obliged to mention it, which may be heavier than the
formal penalty imposed by the court. It is suggested that for these reasons
the charge should be proved beyond reasonable doubt. Against this, it
has been argued that a decision taken on the balance of probabilities is the
norm for domestic tribunals, for college tribunals, for college deans, and for
the Proctors' `court'. The Zellick Report suggests that university
adjudicators should be satisfied on the evidence before them, and that proof
does not have to be beyond reasonable doubt.


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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Representation


52
We turn now to the question of representation. At present, in
cases dealt with by the Proctors, the person charged `may bring any member of
Congregation to help' in the defence, while in cases before the Disciplinary
or Appeal Courts, he or she may `be represented by a barrister or solicitor
engaged in professional practice'.


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.


Role of a witness


56
Our interim discussion paper discussed the position of witnesses þ
in particular, the role of a witness whose complaint of harassment might be
the basis of a charge. We suggested that such persons might themselves be in
need of legal advice and support and, if so, should be allowed to apply to the
Disciplinary Court for representation and legal aid. There are several
possible ways in which such a person might be supported, with different
degrees of involvement by the legal adviser. The legal adviser might simply
give advice to the person, and not accompany the person to the Disciplinary
Court at all. Or, the legal adviser might also accompany the person to the
Court, and offer advice during the course of the hearing to the person, but
not be allowed to speak on the person's behalf, or otherwise take part in the
proceedings. Or the legal adviser might also be allowed to act as a
representative (an advocate) on behalf of the person in the Court.


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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58
By a majority, therefore, we recommend that the
statutes should be amended to confirm the power of the court, at its
discretion, to permit a witness to have a legal adviser who would be able to
carry out all or some of the functions of an adviser mentioned in para. 56,
that is to say, to accompany the client to the court; to offer advice during
the course of the hearing to the client to the court; to offer advice during
the course of the hearing to the client; to speak on the client's behalf, and
otherwise to take part in the proceedings as the client's representative. Our
proposals for legal aid above (paras. 54–5) take this into account. We
suggest that the hourly rate authorised for a legal adviser who is not a
representative would be that for `advice', not for `court appearance'.


Award of costs


59
We were asked by Council to include within the scope of our review
(item 2 (f) of our terms of reference) the question whether the
Disciplinary Court and the Appeal Court should have powers to award costs to
either party (i.e. including the University and not only to the accused or
appellant).


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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The Appeal Court


63
Our recommendations with regard to the Disciplinary Court apply,
mutatis mutandis, to the Appeal Court. That is to say, we
recommend making explicit its powers:

(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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Penalties


65
The Zellick Report recommends that maximum penalties should be
clearly prescribed in universities' disciplinary codes. At present, our
statutes provide for Council to fix the maximum fine for minor `university
offences' (subject to index-linking with the maintenance grant) and leave the
Disciplinary Court free, in the case of major `university offences', to
`impose such penalty as it thinks fit'.


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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Banning orders (expulsion, rustication, suspension,
and related matters)


67
The banning of Junior Members from e.g. the City of Oxford
(bannitio) now belongs to the Oxford of legend. However, various
statutory provisions allow university authorities to make regulations and
rules which may include the banning of certain categories of person from
access to a range of facilities. All persons and bodies having charge of land
or buildings have general regulations and rule-making powers (Tit. XIV, Sect.
I, cl. 2, Statutes, 1995, p. 105) and some authorities have
additional powers.


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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73
There are two procedural points to be observed in relation to all
banning orders:

(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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The relationship between college and university
jurisdiction


74
We sought views on this, drawing attention to some erosion of the
convention that colleges deal with offences occurring on their premises and
involving only college members. There is an increasing number of circumstances
in which the Proctors may also exercise the University's jurisdiction, for
example over

(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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Handling serious offences


82
There is a special problem, discussed at some length in the
Zellick Report and in our consultative document, if the victim of a serious
offence declines to take the matter to the police. Zellick's conclusion is, in
effect, that the issue must be considered on a case-by-case basis; in most
cases the appropriate course will be to acquiesce in the victim's decision,
while recognising that the matter can then be taken no further (since in such
circumstances the university's disciplinary procedures should not be used); in
some circumstances, the authorities may, however, conclude that the police
should be (informally) informed, regardless of the wishes of the victim; the
decision whether or not to report formally should be taken carefully, and the
reasons recorded.


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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89
We continue to feel that the Zellick approach is basically
correct, and recommend that the Proctors should be guided by
it. However, recent experience shows that colleges may wish to be more
proactive. This difficult area may require more debate and exchange of
information within the collegiate university which will no doubt be taken
forward in the impending review of the harassment code.


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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Harassment


92
We have found that discussion of university offences and of the
University's disciplinary procedures tends, at the moment, to be dominated by
the particular offence of harassment. Harassment was the substance of one of
the recent cases before the Disciplinary Court. Allegations of harassment
raise some of the most difficult issues about inter-college discipline, and
the relationship between university and college procedures. A complaint of
harassment is more likely than most to generate misunderstanding about the
relationship between the Proctors' powers to `investigate complaints' under
Title IX and their disciplinary responsibilities under Title XIII (para. 32
above). A charge of harassment is the sort of charge which the Proctors might
wish to take straight to the Disciplinary Court (para. 38). The person
complaining of harassment is also likely to feel vulnerable as a witness in a
disciplinary case (and hence the suggestions discussed in paras. 56–8
above for some form of support for such witnesses).


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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Information and accessibility


95
We referred in our interim discussion document to our impression
that Junior Members were not clear about the University's disciplinary
process. Two of our suggestions would do something to tackle this: a review of
the Proctors' Memorandum as it deals with misconduct (para. 17)
and the inclusion in legislation of a list of possible penalties (para. 66
(c)). The Proctors' Memorandum requires further
fundamental review, particularly with a view to clarifying terminology and the
presentation of information; it should be ensured that any move to a less
legalistic style does not result in the loss of precision. Such a review as
this will also need to take account of any new powers conferred on the
Proctors to suspend a Junior Member while a criminal charge is under
investigation or in other circumstances.


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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De-gradation


98
Finally, we were asked to report on the procedure for de-gradation
(item 2 (j) of our terms of reference). This goes beyond the other
matters in this report, which are concerned with the procedures for
disciplining of Junior Members. Deprivation of a degree is applicable equally
to Junior and Senior Members, and was most recently inflicted in response to
plagiarism in a D.Phil. thesis.


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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Conclusions and summary of recommendations


101
We refer to Council, for further consideration a
number of related matters which do not bear on disciplinary procedures:

(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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ANNEXE A

Terms of reference

[see Note
7]

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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ANNEXE B

Background to the establishment of the review committee

1 The background to Council's decision to establish the
review committee in 1994 is as follows. The Disciplinary Court, as established
under Title XIII, had twice been called upon to meet in the previous three
years. On the first occasion the Disciplinary Court met as a court of first
instance to hear a charge of cheating (`using unfair means') in a examination:
the court dismissed the charge. On the second occasion the Disciplinary Court
met in its capacity as a Court of Appeal to hear an appeal against the
Proctors' verdict (`guilty of harassment') and sentence (`rustication and
suspension of membership of the University') in a case involving the
Regulation on Harassment: the appeal against the verdict was dismissed but the
sentence was changed (to a fine of £500). Reflection on these cases
suggested that it would be desirable to review the procedures and to consider
the position of the Proctors as disciplinary officers in relation to the
court.

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. "#8Note">[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'. "#9Note">[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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ANNEXE C

Evidence received and witnesses seen

"#10Note">[see Note 10]

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)

Written evidence

Colleges

Balliol College

Christ Church

Corpus Christi College

Exeter College

Hertford College

Jesus College

Keble College

Magdalen College

Mansfield College

Merton College

New College

Nuffield College

Queen's College

St Catherine's College

St John's College

St Hilda's College

St Edmund Hall Trinity College

Other bodies

Advisory Panel on Harassment

Committee to Review the Proctors' Office

Conference of Colleges

OUSU

Individuals—internal

Dr P.A. Allen, St Cross College

Dr R.W. Daniel, Brasenose College

Mrs R.L. Deech, Principal of St Anne's College

Mr A.P. Dyson, Director of the Language Centre

Dr E.A. Fallaize, St John's College

Dr E.J. Garnett, Wadham College

Dr E.W. Gill, Pharmacology

Lord Goff of Chieveley, High Steward

Professor R.M. Goode, St John's College

Mr R.O. Hughes, Graduate Studies Officer

Dr J.F. Iles, St Hugh's College

Ms J.M. Innes, Somerville College

Mr J.R. Lucas, Merton College

Dr C. Mould, Secretary of the Bodleian Library

Mr J.D.P. O'Sullivan, Earth Sciences

Mr T.A. Reid, Director of the OUCS

Mr E.P. Wilson, Worcester College

Individual—external

Dr C.F. Forsyth, Cambridge University Advocate

Ms J.A.C. Gleeson, Solicitor

Oral evidence

Internal

Registrar (Dr A.J. Dorey)

Chairman of the Disciplinary Court (Professor R.M. Goode)

Mr Vice-Chancellor (Dr P.M. North)

Principal of St Hugh's College (Mr D. Wood)

External

Assistant Chief Constable, Thames Valley Police (Mr I. Blair)

Clerk to the Disciplinary Court (Mr H.W.B. Mendus) (meeting with chairman
only)

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ANNEXE D

Flowchart indicating the University's present disciplinary procedures (for
Junior Members) under Title XIII and Title XIV [Not reproduced in on-line
supplement]

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ANNEXE E

List of offences

Misconduct which can lead to disciplinary action being taken by university
authorities under Titles XIII and XIV

`University offences'

—To disrupt or attempt to disrupt teaching or study or research or the
administration of the University, or disrupt or attempt to disrupt the lawful
exercise of freedom of speech by members, students, and employees of the
University and by visiting speakers, or obstruct or to attempt to obstruct any
officer or servant of the University in the performance of his duties (Tit.
XIII, cl. 2 (a) (i)).

—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).

`Other offences'

—To damage or deface any property of a college in the case of 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 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).

Note

The distinction between `university offences' and `other offences' bears no
relation to whether the offence is deemed to be `major' or `minor'.

Title XIV offences

—To cause or to threaten to cause damage to property or inconvenience to
users of any university land or building (Tit. XIV, Sect. I, cl. 3).

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ANNEXE F

Definition of misconduct: Appendix VI of the Zellick Report

[see Note 12]

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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ANNEXE G

Detailed Proposals on Legal Aid

1 Different legal aid arrangements apply according to whether
a case is before the Magistrates', Crown, County or High Court. Of these
courts the Magistrates' Court most closely resembles that of the Disciplinary
Court and hence the legal aid system in operation for that court is the model
for our proposals.

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 hour

At 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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ANNEXE H

Sample application form for legal aid

Application for legal aid for the purpose of proceedings of the "Note14">[see Note 14] Disciplinary Court acting
as a court of first instance/the Disciplinary Court acting as a court of
appeal/the Appeal Court

1 Personal details

Forenames . . . . . . . . . . . . Surname . . . . . . . . . . . . . . . .

Term of matriculation . . . . . . College . . . . . . . . . . . . . . . .

Correspondence address. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Permanent home address (if different) . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 Case details

Describe briefly the offence with which you are charged, and/or the sentence
or verdict against which you wish to appeal.

3 Legal representation

The solicitor I wish to act for me is . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of (firm's name and address). . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Reasons for wanting legal aid

When deciding whether to grant legal aid, the court will need to know the
reasons why it is in the interests of justice for you to be represented. Tick
the boxes which apply and give brief details in the space provided.

[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.

5 Financial details: income

Grant or studentship awarding body

(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. . . . . . . . . . . . . . . . . . . . .£. . . . . . .
.

6 Financial details: expenditure

Specify type of accommodation: college or college-owned/privately
rented/own/parents'

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 £. . . . . . . .

7 Declaration

All the above information is true. I understand that the court may order me to
make a contribution to the costs of the legal aid, or to pay the whole costs
if it considers that I can afford to do so.

Signed. . . . . . . . . . . . . . . . . . Date. . . . . . . . . . . . .

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Footnotes

[Note 1] `Suspension' carries various distinct senses,
here in sense (a):

(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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[Note 2] Report of the Committee on Relations with
Junior Members
, Supplement* No. 7 to Gazette, vol. xcix (May
1969).

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[Note 3] Such a referral would not deprive a Junior
Member of a right of appeal to the Appeal Court.

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[Note 4] See footnote to para. 33 on `suspension' [note
1 above]: sense (c) is in use here.

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[Note 5] The Misuse of Drugs Act 1971 states: `A person
commits an offence if, being the occupier or concerned in the management of
any premises, he knowingly permits or suffers any of the following activities
to take place on those premises, that is to say -

(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 6] Council is asked to note that this
recommendation is not made on unanimous agreement of the committee.

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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 8] During the course of the review, following the
unsuccessful appeal in the second case, the student concerned obtained legal
aid for leave to apply for a judicial review. The University's costs in making
a successful case against the need for judicial review amounted to
£12.4K.

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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 11] Regulations of the Rules Committee are
reproduced in Ch. XI, Sect. VIII, Statutes, 1995, p. 715 - 9.

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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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