The last five years have seen an explosion in the number of complaints of sexual misconduct between university students. A reported student will usually receive an email saying that a complaint has been made and quickly find themselves the subject of “precautionary measures”, an investigation conducted by someone appointed by the university and, often, a disciplinary hearing.
Unlike a police investigation, universities operate under their own misconduct and disciplinary procedures and can take significant action against a student before any criminal investigation has concluded. Decisions made during the university process can also affect any subsequent police investigation, making these cases far more complicated than many students and parents initially realise.
If you or your child find yourselves in this position, here are some things to consider.
How University Investigations Differ from Police Investigations
Universities are private organisations whereas the police are empowered by the state. University investigations are often conducted by people who do not have the necessary skills to do so. They are often poorly trained, inexperienced and biased in favour of the reporting student, whom they treat markedly differently from the reported student. The police have much more comprehensive training and their investigations tend to be more impartial and diligently conducted.
Each university has their own set of policies which govern how investigations and disciplinary hearings should be conducted, which creates an unpredictable and fragmented system. The police are governed by a single set of laws which should be applied consistently across the country.
University investigations are subject to limited oversight. The Office of the Independent Adjudicator (OIA) can review disciplinary decisions made by universities. The OIA, however, is reluctant to get involved unless a process has concluded, which means universities can impose lengthy and disproportionate “precautionary measures” with little accountability. Even if a student appeals to the OIA, the damage is usually irreversibly done, and the OIA will take upwards of a year to consider the case. The police have more regular and comprehensive oversight, with regular reviews of cases conducted by senior police officers.
Unlike during a police investigation, there is no automatic right to legal advice. Universities must often be persuaded to allow students to receive legal representation, which the student will have to pay for. This makes the process one-sided and daunting for the reported student, who are often unprepared for how quickly things can escalate, and usually not in their favour.
Why Students Often Take Advice Too Late
Students and their parents often believe that a university will swiftly conclude that a complaint is false. Students may feel that they have done nothing wrong, and that the university must see this. As a result, they only take advice when they realise that the complaint is not going away, and this is often late, sometimes after a disciplinary panel has found against them and may be gearing up to expel them. Early advice from a specialist rape defence solicitor can make all the difference, ensuring that the student’s account is clear and comprehensive and that an investigation is being conducted fairly, challenging them where it is not.
People who are the subject of a police investigation are much more likely to obtain legal advice early and are expressly told by the police that they are entitled to do so.
University Suspensions and Precautionary Measures
“Precautionary measures” are restrictions placed on students which can significantly affect their day-to-day life. They may prevent a student from attending specific places and seeing certain people, or they may even prevent the student from attending the university altogether.
There is often a great disparity between different universities and the measures they impose, with some suspending students for many months, whilst others impose basic non-contact conditions. Students often fail to realise that they can appeal precautionary measures.
The university policy will set out how students can appeal these, often disproportionate measures and the timescales for doing so.
Fairness of University Investigations
Some universities regularly fail to comply with their own policies, particularly regarding timescales, the way the investigator conducts their investigation and how they construct their report, that is, whether it is biased in favour of a reporting student, or making unjustifiable and unreasonable assumptions in their favour. They will often, misstate the accounts provided by witnesses, or quote criminal law incorrectly.
The OIA looks for evidence that the university has complied with its own policies, and we have successfully challenged university decisions because of significant errors in compliance, resulting in a fresh process.
Representations made at an early stage can help ensure that these processes are correctly followed and applied fairly. They may, for instance, prevent a disproportionate suspension or prevent a student from being barred from their university accommodation.
Precautionary measures, investigations and hearings can have far reaching consequences for a student’s future career, particularly if they may be subjected to a fitness to practice investigation or Disclosure and Barring Service involvement.
When the Police Become Involved
The university will normally pause their investigation until the police have finished theirs. Universities usually encourage students to complain about sexual misconduct to the police, so it is not uncommon for a complaint to the police to be made shortly after one is made to the university. If a complaint is made to the police, the reported student may be arrested or contacted to attend a voluntary interview under caution.
If a student is arrested, the police will normally seize their digital devices to obtain messaging evidence. They will not care whether your course work or thesis is on these devices and you will not get them back for at least 9 months, often a lot longer. You will not be able to do anything about this. It is therefore vital that all important material is backed up to the cloud regularly.
What a reported student says or writes during a university investigation or hearing could be used by the police as part of their investigation. The consequences of getting this wrong could be truly life changing, making the difference between a prison sentence and an acquittal.
If you have taken advice early you will be represented by someone who not only knows what they are doing but will know you and your case. If you have not taken advice, you may be represented by a duty solicitor or, more likely, an “accredited representative” whose quality you cannot guarantee and who will know nothing about you or your case.
In short, you should prepare for the university investigative process with one eye firmly on a potential criminal investigation. It is often preferable, for example, for a reported student to advance a carefully prepared written statement during the investigative process. A prepared statement is often preferable at an interview under caution too. The statement advanced in any disciplinary process should be drafted with a view to advancing it in a police interview.
Every case is different. The right approach depends on the strength and nature of the evidence and the individual circumstances of the case.
Collecting and Preserving Evidence
You should collate your evidence and save it to the cloud. That way, should the police seize your devices, you will still have access to it.
It is likely to be material such as WhatsApp or saved Snapchat conversations, screenshots of these and other social media messages, Uber receipts, banking/spending information, dating app communications, Ring footage and Google Maps data. You may want access to CCTV footage, whether from university premises, shop or council footage.
Common Mistakes Students Under Investigation Make
It is easy for a reported student to believe that because they feel they have done nothing wrong, they should contact a complainant or discuss the allegation online with other students. They are often anxious and confused. This can lead them to apologise for something they may not have done or provide different accounts to different people. It is very hard for someone to act logically and carefully in these circumstances, which makes it more important that they receive professional representation.
Legal Representation at University Disciplinary Hearings
Most policies provide that a student can be legally represented during a disciplinary hearing for serious accusations such as sexual assault and rape. The courts are clear that although there is no automatic right, representation should be granted where the allegation is a serious one, and most, if not all, allegations of sexual misconduct will fall into that category and warrant representation. We write to universities setting out this case law and have yet to be refused. We instruct leading counsel who specialise in sexual offence advocacy to represent clients during these hearings and make oral representations to the panels regarding the integrity of the investigation, the evidence, the burden of proof, and the extreme caution with which panels should approach complaints.
The Importance of Early Legal Representation
A sexual offence solicitor can provide advice and support from the moment an allegation is made, during the pre-charge stage, through to the conclusion of both the police investigation and any university disciplinary proceedings. This includes advising before and during a police interview, communicating with the police on a student’s behalf, preserving and obtaining important digital evidence, and identifying witnesses who may assist the defence.
As the case progresses, a solicitor can guide a student through the university’s disciplinary procedures, prepare responses to the university, and make representations regarding suspensions or other restrictions. They can also help ensure that accounts given to the university and the police remain consistent, identify evidential and disclosure issues at an early stage, and, where necessary, prepare grounds of appeal against precautionary measures or disciplinary findings.
About the author
Stuart Matthews is a Founding Partner, Solicitor-Advocate and Head of Private Crime at Reeds Solicitors. He specialises in sexual offence allegations, pre-charge investigations and representing university students accused of sexual misconduct in disciplinary proceedings, alongside related police investigations.
If you are facing an allegation of rape or sexual misconduct at university, obtaining legal advice at an early stage can make a significant difference. Our specialist defence solicitors represent students in both university disciplinary proceedings and related police investigations.
For confidential advice, call 0333 240 7373, email [email protected], or complete our online enquiry form →
