Not many announcements from the Department for Education are met with such wholesale approval across the higher education sector as the recent decision to criminalise essay mill services.
But it is also entirely legitimate to ask, as David Kernohan has on this site: “Yes, but what will this actually achieve?”. So as the recently introduced amendments to the Skills and Post-16 Education Bill head for Committee stage in the House of Commons, what can we expect from the new provisions?
The limits of legislation
First, some caveats. Legislation a) will never be perfect and b) will never solve a problem alone. The reality is that most essay mills are based outside the UK, so would not be subject to domestic law. Even with UK based essay mills, it is likely that only a few would ever be prosecuted. It’s worth noting that, unlike similar legislation in Ireland and Australia, prosecution powers do not sit with the regulator. The offences are free standing, so it would be for the police and CPS to initiate any prosecution. Realistically, it is unlikely that wholesale prosecutions of essay mills will ever be top of the policing agenda.
So with the “yes, buts…” out of the way, will the new offence actually make a difference? We believe it will. A large part of the reason for this is that the offence is one of limited strict liability. A strict liability offence is one where the prosecution does not need to prove intent to gain conviction. This is highly unusual in UK criminal law, where intention is a standard element of any offence. It’s not universal – if you drink drive it doesn’t matter whether you intended to do so – but it’s rare enough.
While unusual, introducing a strict liability element was critical to having any prospect of the new law being effective. Without this, essay mills would be able to hide behind their ubiquitous disclaimers telling students not to submit purchased work as their own, while knowing full well that is exactly what they will do. There is a partial defence to the offence, originally proposed by Michael Draper and Phil Newton at Swansea University, which allows for acquittal if the essay mill can show it undertook due diligence in ensuring that essays would not be submitted as the student’s own work. However, the draft provisions also state that you can’t simply rely on disclaimers to establish that defence.
It’s also helpful that you don’t actually need to have an assessment to prosecute. As well as the offence of providing an essay mill service, there is a separate offence of advertising the service. We know that many essay mills not only have impressive looking websites, but directly target students through their favoured social media channels.
We also believe essay mills would be liable for prosecution under the advertising offence in the scenario set out in David’s earlier analysis, where a student was paid to distribute flyers. In that scenario we believe the essay mill will have committed the offence both by making the flier and by arranging for the student to distribute it. In theory the concern David expressed about criminalising the student paid to distribute leaflets might have some legitimacy, but we would see this applying only in relation to a secondary offence such as aiding and abetting. Without making assumptions about CPS prosecution policy, we think it would be surprising if any student doing this met the interests of justice test necessary for prosecution to be undertaken.
Elsewhere the proposals do a good job in ensuring the net of potential criminality is not thrown too wide. To be convicted of the offence of providing an essay mills service, the requirement that it is for “commercial circumstances” means that friends and family won’t be criminalised for writing an assessment, even if they accept payment on an ad hoc basis. Similarly, the requirement that the work could not “reasonably considered” to be the student’s means that, for example, a legitimate tuition service would not fall into criminal remit.
While there is appropriate limitation, there is also expansion beyond previous proposals. The breadth of potential criminalisation goes beyond higher education, to cover all post-16 education. This avoids an anomaly, potentially experienced by QAA’s college members offering higher education, where essays written for further education students are not covered. Similarly extension of scope has been introduced by expanding the definition of assessment to cover exams. This is important, as reports of students undertaking exams remotely while using real time tuition services appear to be on the increase.
Having said all this, it’s likely the real impact of the new offences will be less in the courts, and more in the marketing. We already know there will be some practical steps that will flow from criminalisation. Jisc say they will now be able to block essay mills sites (of which the Australian regulator TEQSA estimates there are between 2,000-3,000) from the Janet network. In addition, making essay mills criminal should make it easier to persuade online platforms such as Google not to accept paid for advertising, or ISPs to host sites. There has been some success in achieving this in Ireland and Australia, and this should also allow restrictions on marketing by non-UK operations.
A devolved matter
Ideally of course, the legislation would apply across the whole UK, not only in England and (as we understand it) any Welsh based essay mills whose services are available in England. It’s important to recognise that as well as the consistent arguments for criminalisation offered by Lord Storey, Chris Skidmore MP and other Westminster parliamentarians, there have been advocates across the UK. While the view of the Westminster Government was that the Skills and Post-16 Education Bill provided a suitable and current vehicle, the intention remains to collaborate across all UK Governments to ensure coverage.
So, is it perfect? No. Is it a significant step forward? Yes. Not least because students who use essay mills will now be engaging with entities offering illegal services. This is an important message for the sector to be able to now give. Especially with threats to cyber security, including essay mills now seeking to embed themselves onto institutional websites increasingly indicating that this is becoming fertile ground for organised crime.