High Court of Ireland Decisions

1. The applicant obtained her primary degree in 1978 and since then has been employed as a local authority social worker. She entered University College Dublin in the autumn of 1986 to study for a diploma in applied social studies. One of the courses which she attended was on human behaviour. For her diploma she was required to submit an essay on this subject in advance as well as sit four written papers. No problem arises in relation to these papers in each of which she received honour marks. These proceedings relate to the essay which she submitted.

2. The requirement for the essay was as follows:-

3. This essay was to have been submitted by the 31st July, 1987. There is a dispute as to whether or not it was so submitted, but even if it was not, no point arises on it in these proceedings. The lecturer, Mrs. Richardson, read the essay on the 12th September, 1987, and was immediately concerned because she regarded large parts of the essay as having been copied from a tape which had been played to the students in class in April, 1987. She considered the essay to be a case of plagiarism and referred the matter for consideration to an examiners’ meeting. The essay was discussed at such a meeting on the 17th September, 1987, when a decision was taken to refer the essay to Professor Pinker, the external examiner. This examiner heard the tape and read the essay on the 24th September, 1987, in the presence of the lecturer, Mrs. Richardson and the statutory examiner, Dr. Carney. His view was that a breach of college regulations had taken place and that the matter should be referred to Professor Kelly, the Registrar, which was done. It is to be noted that at no stage in this history was the applicant consulted or asked for an explanation of the plagiarism which was alleged against her.

4. The disciplinary procedures were then invoked. The Registrar wrote to the applicant by letter dated the 28th September, 1987, as follows:-

5. The applicant replied on the 30th September declining to attend as she was “unaware of any alleged breach of the examination regulations for Autumn, 1987.” She then made several telephone calls both to the department of social science and to the Registrar’s office. Not until the 2nd October, 1987, did anyone speak to her on the subject. As a result of two telephone calls, both with Miss Donnelly, the senior administrative officer in the Registrar’s office, the applicant was informed that the allegation against her was that she copied her case history in her essay on human behaviour from a commercially available tape. At her insistence Miss Donnelly agreed to see her on the following Monday, the 5th October, 1987.

6. The applicant met Miss Donnelly on the 5th October, 1987, when she handed her a letter denying any wrongdoing. At this meeting she was informed that she would have to attend at a meeting of a committee of discipline and could be represented by the dean of women’s studies and the president of the students’ union, neither of whom she knew, but by no one else. This was confirmed by letter dated the 6th October from the Registrar which also set out that the committee would consist of the President, Dr. Patrick Masterson, the dean of the faculty of arts, Professor Donald McQuillan,1 and the dean of the faculty of celtic studies, Professor Michael Herity. She was also told that Miss Donnelly and the Registrar would be in attendance at the meeting. The letter further enclosed a loopy of the disputed essay and a transcript of the relevant tape.

7. The committee met on the 8th October. Present were its three members, the Registrar who acted as prosecutor, Miss Donnelly, the applicant and her two representatives. No witnesses were called to give evidence. The Registrar read from the essay and expressed the opinion that the case was a clear one. The applicant sought to make her case and explained that the tape had been played and replayed in lectures and that she had acknowledged the use of such tapes at the end of her essay. The applicant and her two representatives were then asked to retire. The committee, the Registrar and Miss Donnelly remained. When the applicant and her two representatives returned, they were informed that the matter would be sent to an independent expert to assess. This was agreed to by the applicant, who asked for the allegations of plagiarism being made against her to be put in writing. These were sent to her on the 11th October. They consisted of a letter dated the 24th September, 1987, from Dr. Claire Carney, the statutory lecturer in the Department, to the Registrar; a typed note from the examination office; and a memo from Mrs. Richardson to Professor Pinker. The substance of the matter appears from the examination office note which was as follows:-

8. Following on receipt of these further documents, the applicant wrote to Professor Masterson by letter dated the 19th October, 1987, setting out her defence and enclosing documentation for transmission to the independent expert. Not having heard anything from anyone for several weeks, she wrote again to Professor Masterson on the 6th November, 1987. Meanwhile, she contacted the other two committee members and the Registrar to find out what was happening, but without result.

9. The choice of independent assessor was delegated by the committee of discipline to the Registrar. He in turn consulted three heads of department in the department of social studies and on their recommendation chose Professor Hannan. The applicant for her part understood that the person to be chosen would be a university lecturer on human behaviour in another third level college. She was not involved in the selection of Professor Hannan, whom she says does not come within this category. Mrs. Richardson equally did not know whether human behaviour was within his subject or not.

10. The assessor’s report was received on the 9th November, 1987. On the same day the applicant was informed by letter as follows:-

11. By letter dated the 11th November, 1987, the Registrar’s office purported to send her the report as follows:-

12. The report however included the following paragraph of which she was not informed:-

13. The committee reconvened on the 16th November, 1987. Although the applicant sought an adjournment, this was denied to her. The committee acted solely on Professor Hannan’s report and recommended that the applicant be sent down but that she could be permitted to re-submit her essay to the examiners in June, 1988, and be permitted to carry forward her other results. Formal notification of this decision was sent to the applicant by letter dated the 18th November, 1987, in which she was further informed that she was not debarred from use of the library facilities during the year. The present proceedings are brought for judicial review of this decision.

14. Since the decision of the committee the applicant has obtained a written opinion from Dr. Sheila Greene, lecturer in developed mental psychology in Trinity College, Dublin, who has expressed her view on the worth of the essay. While this report may not give the applicant the full comfort she sought, nevertheless it does not dismiss the essay as one of pure plagiarism but sets out factors which in the writer’s opinion suggest that “the supposed plagiarism is neither flagrant nor in all probability deliberate.”

15. The evidence before me was on affidavit, but oral evidence was also adduced. Both the applicant and Mrs. Richardson were cross-examined on their affidavits. In addition, upon application by the respondent, oral evidence generally was given by the Registrar as to disciplinary procedures within the College. Having heard this evidence, I am satisfied that the applicant is a truthful witness and I accept her evidence. The procedures adopted were essentially as she has described them. There is in any event no real dispute on the facts. There are two areas where there is some doubt as to what may have happened. When the President indicated on the 8th October, 1987, that an independent expert would be appointed, I am satisfied that the applicant agreed to this being done. I am also satisfied that she believed this person would be a lecturer in human behaviour in a third level institution. The second area of doubt relates to whether or not the Registrar told the applicant that with or without a doctor’s certificate she could not have a postponement of the reconvened meeting on the 16th November, 1987. The applicant’s statement read to this meeting so states. While her affidavit indicates that the Registrar denied having said this, I accept that the statement reflected the applicant’s belief at the time and that it would not have been made unless the Registrar or Miss Donnelly had said this to her. There was of course conflict as to whether or not there had been any plagiarism. However, this is not a matter for decision since the issue is not whether an offence was committed but whether the procedures adopted by the committee of discipline were in accordance with natural and constitutional justice.

16. Regulations adopted by the College on the 29th October, 1912, include provisions relating to discipline and the function of the Academic Council in relation thereto. It appears however that these regulations have fallen into disuse and that the present procedures are derived from resolutions of the Academic Council passed over the years. Such resolutions are to be found in the minutes, but are not printed as such nor otherwise available.

17. The committee of discipline is not a judicial body, but equally clearly is a body which in relation to the charge brought against the applicant was required to act judicially. Submissions have been made to me as to the difficulties which the College would face if it had to adopt a procedure in relation to breaches of discipline in more akin to a criminal trial. Such considerations are irrelevant. The nature of the inquiry and the procedures to be adopted depend upon the circumstances of each individual case. The Registrar very fairly admitted that he had not had a case of disputed fact and that in his experience the procedures adopted related to persons effectively caught in the act, and so guilty. But guilt alone is not a ground for excusing the absence of the judicial exercise of the disciplinary power. If, as it appears to be, the College has no disciplinary procedures capable of dealing with differences of opinion let alone with disputed issues of fact, then it is for the College, assuming that existing procedures deny a judicial exercise of the disciplinary powers when such is required, to take steps to alter its procedures.

18. The department of social work and applied social studies issues a handbook for, inter alia, students seeking the Diploma in Applied Social Studies. Provision for appeals by students against assessments is set out at page 51 of this handbook. The applicant has submitted that this procedure should have been followed in relation to the assessment of her essay. The respondent submits that it was not relevant since what was alleged against the applicant was a breach of discipline. Insofar as the matter proceeded within the department, the issue was one as to the proper assessment of the essay. However, once the matter was treated as a matter of discipline the appeals procedure was no longer appropriate. It would have been expected that the matter would have been investigated initially by the department in the course of which an explanation would have been sought from the applicant. The Registrar in his evidence indicated that he would have expected this to have been done. Professor Hannan was certainly of the opinion that it should have been done and the second paragraph of his report must be taken to be a serious criticism of the department in this regard. However, once the matter goes to the committee of discipline, it must be taken to have had the authority to deal with all aspects of the matter. The absence of the exercise of the appeal procedures would not per se invalidate the decision of the committee of discipline.

19. Once a lay tribunal is required to act judicially, the procedures to be adopted by it must be reasonable having regard to this requirement and to the consequences for the person concerned in the event of an adverse decision. Accordingly, procedures which might afford a sufficient protection to the person concerned in one case, and so be acceptable, might not be acceptable in a more serious case. In the present case, the principles of natural justice involved relate to the requirement that the person involved should be made aware of the complaint against them and should have an opportunity both to prepare and to present their defence. Matters to be considered are the for in which the complaint should be made, the time to be allowed to the person concerned to prepare a defence, and the nature of the hearing at which that defence may be presented, In addition depending upon the gravity of the matter, the person concerned may be entitled to be represented and may also be entitled to be informed of their rights. Clearly, matters of a criminal nature must be treated more seriously than matters of a civil nature, but ultimately the criterion must be the consequences for the person concerned of an adverse verdict.

20. The present case is one in which the effect of an adverse decision would have far-reaching consequences for the applicant. Clearly, the charge of plagiarism is a charge of cheating and as such the most serious academic breach of discipline possible. It is also criminal in its nature. In my view, the procedures must approach those of a court hearing. The applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the alleged offence. She should equally have been allowed to be represented by someone of her choice, and should have been informed, in sufficient time to enable her to prepare her defence, of such right and of any other rights given to her by the rules governing the procedure or the disciplinary tribunal. At the hearing itself, she should have been able to hear the evidence against her, to challenge that evidence on cross-examination, and to present her own evidence.

21. Unfortunately, there was a total failure on the part of the College to allow the applicant these rights. There was no attempt to make the applicant aware of the exact nature of the charge against her. It was not until her second telephone call to Miss Donnelly that she was made aware that it related to her choice of case history in her examination essay. Nor was he given an adequate opportunity to prepare her case or to present it. The refusal to permit her representation of her own choosing was a virtual denial of the former and the absence of anyone to give evidence against her at the hearing before the committee was a denial of one aspect of the latter. It gave her no opportunity either to discover how the case against her was being put or to test its strength by cross-examination.

22. It is submitted on behalf of the College that the applicant did not need representation since she was educated, articulate and experienced in writing case reports and putting forward their contents to case conferences. Taken to its logical extreme, this would mean that professional people including lawyers do not require to be represented at hearings of matters in which they are concerned. It is an obviously fallacious submission. It was also submitted that the issue of plagiarism was essentially a simple matter and not complex. Again an equally fallacious argument, and one which is equivalent to saying that fair procedures were unnecessary because there could have been only one result to the inquiry. This has on many occasions rightly been held to be no excuse for their absence. One party cannot decide whether or not the other has a case to make. Nor was the present case so simple. The Department’s examiners have taken one view, Professor Hannan has taken a different view, and Dr. Greene has taken yet another view.

23. It was not until the applicant herself indicated her side of the case at the hearing on the 8th October, 1987, that the committee realized that there might be two sides to the matter. Once they did, they deliberated as to what they should do. They believed that they were acting perfectly properly in deciding to rely totally on the opinion of an independent expert on the issue of guilt. They were certainly acting bona fide, but, in the absence of informed consent on the part of the applicant, this was improper.

24. Counsel on behalf of the College has submitted that the applicant was not entitled to any other representation than that which she was allowed. He refers to The State (Smullen) v. Duffy [1980] ILRM 46 in which it was held that there was no lack of fair procedures because schoolboys on a disciplinary charge were not legally represented before the board of management of the school. In that case, the members of two rival gangs at a school were effectively expelled by the headmaster, whose decision was upheld by the board of management. The mother of two of the boys was told that she had a right of appeal to the board of management. This she did not exercise. It was held that the procedures adopted were fair and that what the school did was reasonable having regard to its magisterial responsibility and its obligation to enforce and maintain discipline. No element of such responsibility or duty exists in the present case. Reliance is also placed upon Glynn v. Keele University [1971] 1 WLR 487 and University of Ceylon v. Fernando [1960] 1 WLR 223. In both these cases decisions against students by university tribunals were upheld notwithstanding the absence of procedures of the nature which I have indicated. In both cases, the court was satisfied that the function was quasi-judicial, but that the rules of natural justice had been observed. However, in both cases it was indicated that the result might have been different if, in the one case, a further date for an appeal hearing had been sought, and, in the other, an application to cross-examine had been made.

25. The failure to apply proper procedures arise, as the Registrar accepted, because this committee has always sat in his experience to deal with cases where guilt, if not admitted, cannot reasonably be denied. This is aggravated by the absence of any published College regulations under which the committee purported to act. Because of these factors the applicant was denied representation of her choice. This immediately prejudiced the applicant and most of what subsequently occurred arose from this factor.

26. If the applicant had been legally represented, it is doubtful that the hearing on the 8th of October, 1987, would have taken place as it did. If it had, it is unlikely that such representative would have agreed to an independent expert or, if he or she had, that he or she would not have required to know who was to be approached.

27. The hearing on the 16th November, 1987, was equally affected by the lack of representation. Again, it is unlikely that the adjournment sought would have been refused.

28. There were other grounds for complaint. The Registrar and Miss Donnelly ought not to have remained with the committee while it decided what course to adopt. The appointment of the independent expert should not have been left to the Registrar; and he in turn should not have been guided by the heads of the Department. The applicant was not involved in this selection process and is fully entitled, notwithstanding that she agreed to an independent expert, to object to the expert so selected. The Registrar ought not to have omitted the second paragraph from Professor Hannan’s report when sending it to the applicant. Further, by acting on Professor Hannan’s report

29. Having regard to all these factors, the applicant is entitled to an order quashing the decision of the committee of discipline.