2 Natural Justice Principle of legal philosophy Applied in Common Law jurisdictions Incorporates procedural fairness - “The duty to act fairly”
3 Natural Justice Underpinning philosophy: People are basically good Persons of good intent should not be harmed Treat others as you would like to be treated
4 Natural Justice 2 fundamental principles for a fair trial or valid decision: "nobody shall be a judge in his own cause",nemo iudex in causa sua: invalidates any judgment where there is bias or conflict of interest or duty; and "hear the other side", audi alteram partem: giving at least a fair opportunity to present one's case (which may, for example, require access to legal representation).
Natural Justice Reasonableness – a third principle? The requirement of "reasonableness", defined in the Wednesbury case, is sometimes treated as a further principle of natural justice. Cf. the OIA approach to “fair and reasonable in all the circumstances” 5
6 Fairness and the law Contract – a right to advance warning Crime – adequate notice or proceedings, including any charges Higher Education context –contractual issues and quasi-judicial/criminal proceedings
Fairness and the law Plagiarism and intent Burden of Proof Is the onus on the student or the University to prove/disprove the charge? Standard of Proof Is the evidence being tested on the balance of probabilities (civil standard) Or beyond reasonable doubt (criminal)? Healthcare– S112 Health and Social Care Act 2008 7
8 Fairness and Proceedings Proceedings should: Be fair to all parties Entitle each party to be heard Entitle each party to ask questions and contradict the evidence of the opponent Ensure that justice has been seen to be done
9 Fairness and Decisions Decision makers should: Declare any personal interest in proceedings Be unbiased and act in good faith Not be one of the parties or have an interest in the outcome Take into account relevant matters, and any extenuating circumstances, and ignore the irrelevant
10 Fairness and Decisions Is there a duty to give reasons? Case law that says people should be given reasons for a decision that affects them – need not be lengthy Findings of fact and opinion Reasons for the imposition of a penalty OIA view: good practice to make clear grounds for decisions. Recipient should know basis for any challenge or appeal.
OIA examples Confusion of roles Instigator of plagiarism allegation chairs a panel to determine outcome / appeal Fairness to all parties Two accused – one’s case is heard first and his story is believed. Second student is then found to be the guilty one. Consequences? 11
OIA examples Do students know what plagiarism is? Clarity of regulations Clarity of communication Consistency of decision making Across and within departments Across the HE sector as a whole Can plagiarism be mitigated? 12
OIA examples Procedures not followed Delegated decision-making Short notice of appeal ( 2 hours by e-mail! ) “Poor academic practice” substituted – with worse consequences for the student Delay – what are the consequences? Anonymised case studies and digest 13
Better Regulation- a way forward? Five principles of good regulation: transparent accountable proportionate consistent targeted – only at cases where action is needed Better Regulation Executive (BRE) - part of BIS 14