Here I have tried to demystify what we do as higher education barristers by looking at a single, standard case of academic misconduct from start to finish.
It is based on a real case although some details have been changed to ensure anonymity.
The case may also give SUs ideas on different ways to assist students facing disciplinary proceedings.
A client calls
Day 1 (afternoon): prospective client calls. He is a law student at a UK university who is accused of contract cheating (asking someone else to write the essay for him). He has already had an interview with an examiner about the essay, which went terribly. He asks for an urgent consultation with a barrister, which is scheduled for the next day.
Day 1 (evening): On request, the client sends 80 pages of documents, consisting of correspondence with the university, reports by the examiner, minutes of his train-wreck interview, a Turnitin report, and the university’s academic misconduct regulations. The examiner is convinced the client did not write the essay, presenting two arguments in support: 1) the discrepancy between the “excellent essay” and dreadful interview, and 2) the fact that the client barely engaged with his tutor during the term.
One of the client’s documents is a GP letter referring to depression.
Day 2: in the consultation, which lasts 2 hours, we go through the case in detail, addressing the university’s arguments in turn. The client maintains that he wrote the essay but admits he was woefully unprepared for the interview. That will be the focus of the defence: that it was his failure to prepare, rather than a lack of authorship, that explains his dire performance in the interview.
We spend some time discussing evidence and identify photos on the client’s phone showing him working on the essay. Expert evidence (a linguist specialising in authorship disputes), with a cost estimate of £3,000 – £4,000, is ruled out as unaffordable for this client.
At the time of the interview, the client was suffering from an exacerbation of his underlying depression. I recommend an addendum letter from the GP to elaborate on the significance of the symptoms to his poor performance in the interview. An important part of our job is liaising with clinicians to ensure their evidence is helpful to the decision-makers.
In respect of his limited engagement with the course, the client explains that this was also related to his mental ill-health and reduced motivation.
At the end of the consultation, I advise the client to submit a written statement setting out his defence ahead of the hearing. This is an early opportunity to sway the Panel and, if done well, it should make his life easier in the hearing.
Can you help
Day 3: the client asks if I can write the statement and represent him at the hearing. I write an 8-page statement and draft an e-mail for him to send to the university, whose regulations do not permit legal representation. The e-mail refers to the Office of the Independent Adjudicator’s Good Practice Framework, which states that it is ‘good practice for providers to permit legal representation in complex disciplinary cases, or where the consequences for the student are potentially very serious.’
In this case, the consequences are potentially life-changing since a finding of guilt will be considered an offence of dishonesty and might prevent him from practising as a lawyer.
The e-mail also mentions his still fragile mental health and the value of a representative.
Day 4: the university responds and allows partial legal representation, meaning that the lawyer can ask questions but cannot make submissions. This is silly and I draft another e-mail to challenge this. The university responds shortly after and allows full representation.
Day 5: I prepare for the forthcoming hearing. The university representative will go first, presenting the department’s case. If unchallenged, this could be damaging so I will need to take the sting out of their case by gentle cross-examination. It must be gentle because university panels tend to dislike overt challenges to the evidence of their colleagues.
In preparation for the hearing, I construct arguments addressing each of the university’s points, highlighting weaknesses in the case. The university claims the essay is excellent but it has not argued that the writing style differs from my client’s previous essays, nor that the grade is suspiciously high. This is a major omission, which I plan to exploit.
Finally, I prepare a short concluding statement, with reference to the burden of proof and the enormity of the decision for the client. I would not resort to appeals to emotion in a civil court but university decision-makers are closer to juries than judges so a touch of drama can be persuasive.
Heavy lifting
Day 7: the day before the hearing, I call the client to check he is ready. I explain that, unless he is asked a question directly, he should let me do the talking. Many a case has been lost by the client blurting out something damaging to his case. I still remember the time when, after an effective cross-examination of the investigator which all but eliminated him as a threat, the student asked “so, after all that, do you still think I’m guilty of cheating?”. You can imagine the answer.
I end the session by giving the client advice on how he should conduct himself in the hearing and reassuring him that I will be there on the day, doing the heavy lifting.
Day 8: hearing day. At the start of the hearing, I discover the university is calling the examiner as a witness. My client had omitted to inform me. This is another bomb that must be defused. I hastily jot down an outline of questions. The examiner, not doubt unaccustomed to forensic questioning, proves pliable and concedes that the ‘excellent’ essay is in fact flawed and would not attract a very high mark. In short, it could be written by an undergraduate student.
When presenting the university’s case, the representative strays beyond submissions to providing his own opinion “as a senior lecturer” on the quality of the essay and the student’s conduct. My protestations to the Panel Chair are met with puzzlement. The Chair appears unaware of the difference between the role of a representative (i.e., to present arguments) and that of a witness (i.e., to give evidence). Has the Chair received proper training?
Flip a coin
I deliver my submissions, the Panel members ask the student a few innocuous questions, and after closing statements from both sides the hearing ends after 2 hours 30 minutes.
“That went well”, texted the relieved client afterwards. My assessment was less optimistic. Prospects of success: 50%.
Day 15: the outcome: case dismissed. The Panel was not convinced that the client had engaged in contract cheating. His dream of becoming a lawyer is still alive.
The client has given consent for details of their case to be published
