Do you dare? Disciplining students who are or may also be subject to a criminal process
Sexual misconduct is species of misconduct like any other, which can present a threat to the good order and safety of the student community. It is also conduct that can amount to a criminal offence, like harassment or a physical assault of one student by another. Institutions, however, display a particular reticence in proceeding with disciplinary hearings in cases of sexual misconduct, when compared with other misconduct that may also amount to a criminal offence, if there is any possibility that a student will make a report to the police.
That reticence is often reinforced by solicitors admonishing institutions for in effect investigating “rape”.
Suspending the institution’s own disciplinary process until the (often) protracted criminal proceedings have been concluded can be detrimental to the accused student, who may also be subject to precautionary suspension. It is very useful therefore to have a clarification of the law from the Court of Appeal in relation to parallel internal disciplinary proceedings when the accused is also subject to a criminal investigation. Though the issue arose in the context of an employment relationship, the law applies to student disciplinary proceedings for sexual and other forms of student misconduct.
The case of North West Anglia NHS V Gregg ³ concerned a doctor who was being investigated by the police for allegedly hastening the deaths of a number of patients. The doctor’s lawyer advised him not to participate in the Trust’s internal disciplinary hearing because he would risk prejudicing himself in the criminal investigation. The Trust refused to adjourn the disciplinary hearing pending conclusion of the criminal proceedings. The doctor obtained an interim injunction preventing the Trust from proceeding, but the Court of Appeal overturned that decision concluding that the judge granting the injunction erred in law by doing so.
Following a review of the case-law authorities, the Court of Appeal stated that there was no absolute rule that once an employee has been charged with an offence and advised to say nothing until his criminal trial, an employer could not dismiss him for the alleged offence.
The principles derived by the Court of Appeal following scrutiny of the case law are as follows:
• An employer considering dismissing an employee does not usually need to wait for the conclusion of any criminal proceedings before doing so;
• An employer does not usually need to wait for the conclusion of criminal proceedings to commence or to continue with internal disciplinary proceedings, although such a decision is open to the employer;
• The court will usually only intervene if the employee can show that the continuation of disciplinary proceedings will give rise to a real danger (and not merely to a notional danger) that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.
This reasoning makes good sense also in the context of student discipline. Investigating a breach of the internal misconduct rules and assessing guilt on the civil standard of balance of probability is not to be equated with investigating the commission of a statutory or common law offence and determining guilt on the criminal standard of beyond reasonable doubt. The two are separate and distinct processes.
All institutions should therefore retain in their disciplinary procedures a discretion to proceed with the internal disciplinary process notwithstanding that there are actual or anticipated parallel criminal proceedings. Whether that discretion should be exercised will depend on the facts of the particular case. There may be cases where the appropriate response is to await the completion of the criminal process, particularly if the delay is no more than a few weeks. The institution’s discretion is a broad one, however, and a decision should be based on a real risk of prejudice to the accused student in the criminal process, which the student will have to demonstrate, rather than on hypothetical risk or on conjecture.
³  EWCA Civ 387