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The Senate House Discussion on Owen (II)

Following on from the earlier post, here are some more comments by staff and academics on Owen’s case. Taken from the April 24th Discussion at Senate House. Full transcript available here.

The sentence imposed in this case ‘by the University’ has made us all responsible; all of us by default share in the ridicule, opprobrium, or indeed approval which it has occasioned.

those of us with a particular interest in admissions, access, and widening participation simply have to grit our teeth, as the task of explaining to prospective students, and their parents, that Cambridge isn’t completely arcane and out of touch just got a little bit harder.
– Dr H. M. M. Lees-Jeffries (Faculty Of English and St Catharine’s College)

I wish simply to register my grave concern that at a time when universities and higher education have been under unprecedented attack, both academic freedom and the right to protest also appear to be in such danger at our institution. While we honour these fundamental rights and freedoms in name, the singling out of a lone student protester in a collective action for quite extraordinarily disproportionate and harsh punishment gives the lie to our protestations.
– Dr P. Gopal (Faculty Of English And Churchill College)

I was hampered by the University’s refusal to provide me with any details of the Court of Discipline’s reasoned decision. Fortunately for me, less so for the student concerned, it appears that some kind member of the University administration or the Court has leaked a signed copy of this document to various student newspapers, one of which seems to have helpfully made it available verbatim on the Internet.
– Mr M. B. Beckles (University Computing Service)

Even if one adopts the most narrowly legalistic approach to this sentence, there seem to be at least two ways in which it is inappropriate:

First, there is an issue of fairness. One student, and one only, is being singled out and scapegoated. He is being punished for something many other people also did, and even more people, like me, approved of.

Second, there is the issue of the proportionality of the punishment to the action. No one has claimed that anyone was harmed or even that any property was damaged during the events in question. Whatever one might think of the action, it was a reasoned response to what many of us feel is a concerted attack by the government on the higher education system. Suspension seems a disproportionate reaction and one motivated by vindictiveness or loss of face rather than anything else.
– Professor R. Geuss (Faculty Of Philosophy)

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The Senate House Discussion on Owen (I)

With Owen’s appeal taking place tomorrow, its worth remembering how wide condemnation of the sentence – and the decision to take him to trial in the first place – is among staff and academics.  One example was the calling of a Discussion at Senate-House on Tuesday 24 April by thirty-seven Regents – members of the University’s governing body. Here is a small selection of their criticisms. We’ll put more up later. A transcript of the entire session is available here.

I believe the punishment is utterly disproportionate to the crime, for indeed, there was no crime. At worst, there was a minor violation of some University regulation, which I would offset against the way that the voices of young people have not been listened to in the fees debate. Young people do not want the forthcoming fees, and the weight of that opinion is not properly reflected in the government’s documentation, nor even in the weightings of our democratic procedures which naturally exclude the young.

what appalls me is this. How can anybody inflate such a minor matter as the events of that evening by invoking the hallowed concept of ‘freedom of speech’ in the way that it has been done?

“There is no Article in the Universal Declaration of Human Rights that says that a Minister of State has the right to give an evening lecture without being interrupted”
– Mr F. A. Mcrobie (Department Of Engineering And St Edmund’s College)

At a time when the critical function of the academy is facing an unprecedented threat from government policies that cast all education as training, and all research as business entrepreneurship, it is dismaying to discover that this kind of disciplinarian narrow-mindedness lies somewhere near the core of the University.
– Dr J. E. Scott-Warren (Faculty Of English and Gonville and Caius College)

Again, bad administrative practice has related to an action which had sought to protest government policy
– Dr B. K. Etherington (Churchill College)

I have a particularly acute awareness of just how promising an academic career this savagely disproportionate sentence is calculated to wreck…Seven Oxford undergraduates (including myself) were rusticated for the last two weeks of Michaelmas Term in 1964 for ‘violently protesting’ the visit of the South African Ambassador. That was bad enough. This is an outrage!

When we look at the sentence before us – a sentence of seven terms’ rustication imposed on a single student, for taking part in a collective, non-violent political protest – it is painfully clear that the difference between Cambridge in the twenty-first century and Oxford in the last millennium is not in Cambridge’s favour.
– Dr C. J. Gonda (Faculty Of English And St Catharine’s College)

Unappealing justice: the flawed and arcane Court of Discipline

Cambridge student Angus MacDonald reminds us of how inappropriate the decision to try Owen was, given the dubiousness of the University’s disciplinary procedures. Owen’s appeal is likely to be heard later this month. Republished from Varsity (www.varsity.co.uk/comment/4767)

Student discipline is, for the most part, dealt with inside the colleges. Party til midnight, get busted by the grouchy night porter, an email from the Lay Dean, and you end up with a £30 fine. A headache and a thirty quid tumor on your college bill – poor you. But, surprisingly the University has an array of apparatus for dealing with discipline outside of the colleges. This includes four individual courts, real-life judges, plenty of gowns, and a latin lexicon to boot. These disciplinary mechanisms rarely grind into gear, and when they do, it’s usually to dole out punishment for cheating or plagiarism. A student going in front of the court for taking part in a protest, such as Owen Holland, is extremely unusual. Owen’s punishment, regardless of its absurdity, was a product of a University Court that has barely any experience in dealing with anything other than slapping students on the wrist for sneaking a calculator into their exam or copying and pasting Wikipedia.

The University has four separate courts: The Court of Appeal, a University Tribunal to deal with staff, and two courts for delinquent students: the Summary Court and The Court of Discipline. The Appeal Court is a council of seven called the Septemviri. It’s made up of big dogs from various colleges, and a fair few Lords and Dames. The Septemviri hear appeals on disciplinary measures taken by the more senior University Courts, and it’s to them that Owen has appealed his sentence.

There’s the Summary Court and the University Tribunal. The Tribunal is a body of discipline exclusively for academic staff. Due to the immaculate behavior of Cambridge’s upper echelons, it rarely meets at all. The Summary Court deals with smaller disciplinary issues outside of a college’s jurisdiction. So maybe you did what we all dream of and sneaked into the UL’s nether regions, and, finding your way to the top of the tower, ran some gloriously witty message up the flagpole. This could be a case for the Summary Courts. They only have the power to fine, or to ban from University facilities. I reckon they’d slap a fine on you and ban you from the UL for a term or two (almost worth it…). Their disciplinary power is limited, so in finding people guilty they only need to prove you ‘probably’ did what you’re accused of.

Now if you’re a student in front of the Court of Discipline, things are serious. They have at their disposal the power to rusticate (suspend), deprive a student of their University membership, or send down completely (expulsion). The potential severity of their rulings means they try to act like a real criminal court. A genuine judge currently chairs the Court, and the guilt of any defendant must be proven beyond reasonable doubt. While the Court claims to emulate the adversarial set-up of genuine criminal courts, this idealistic aspiration has no basis in the court’s actual conduct

The Court of Discipline’s ability to carry out any semblance of a fair trial is unconvincing. First, there’s a woefully inadequate separation of powers: the panel of five University officials are both judge and jury. Worse than that, they can – and have been known to – enter into the adversarial process on the side of the prosecution. This makes them prosecutor, judge, and jury all in one. What’s more, the court deals almost exclusively with plagiarism and cheating in exams. It meets rarely and when it does, the defendant, having been caught red handed, is brought in, pleads guilty, and the Court gives them an uncontroversial punishment. No big deal. No one cares. There’s no need for lofty principles like justice, reasonable doubt, and even-handedness. For example, in the academic year 2010-11, the Court didn’t meet once. This year, they’ve met three times (excluding Owen’s case.) That was for one case of cheating, and two cases of plagiarism. On one occasion a student was caught in an exam about to cheat. The court gave him zero for that exam – no big deal. Another was found to have plagiarised some written work in an exam. He was put in front of the Court and made to do the exam again – pretty lenient. The final case was a plagiarising MPhil student. They were suspended until a University psychiatrist determined them fit to return to their studies – a bit weird, but alright. Each time, the student’s guilt is a given, the Court just picks a punishment.

Owen Holland took his defence into an environment that had no experience of listening to and weighing up a defence. He was charged with orchestrating the Willetts protest, for being so integral that it wouldn’t have happened without him. Any participant of the protest could testify that this is transparently untrue. Yet Owen was advised ‘not to irritate’ the Court, that by playing ball he’d get off with a fine. Thus the Court’s quasi-judicial aspirations don’t even extend to the first priority of English Courts of Law, where the ‘overriding objective’ of a court’s rules is to ensure ‘cases be dealt with justly’. Instead, Owen was tried for six hours in a closed In Camera trial, the records of which the University has yet to release. He was tried in a court that strongly presumed guilt and whose mechanisms for dealing with an adversarial case were rusty. A court that had little experience of, commitment to, or safeguards for genuine justice was faced with a case that required exactly these balances. Unsurprisingly, the Court produced a flawed verdict to match the flawed implementation of its quasi-judicial mechanisms.

Ian Patterson on Owen’s punishment

Ian Patterson is a Fellow in the Faculty of English and is Owen’s second supervisor.

Last November, the higher education minister, David Willetts, came to Cambridge to deliver a talk, in a series about ‘the idea of the university’ organised by the Centre for Research in the Arts, Social Sciences and Humanities. But as he came to the lectern, a number of audience members (both students and academics) stood up and read, or performed, collectively, a poem articulating opposition to the policies he was advocating. They continued to read and repeat the poem until after a few minutes Willetts was ushered away and the lecture and question and answer session cancelled.

In the aftermath of this, and of the small occupation of the lecture theatre that followed it, one PhD student was singled out for reprisal by the university authorities, and made subject to the university’s disciplinary procedures. As earlymodernjohn asks in an eloquent blogpost today: ‘What is this singling out and rash punishing of one man other than scapegoating?’ And as he goes on to point out it is, actually, more: ‘It’s bullying.’

The scapegoating was widely felt to be unfair, and a letter signed by sixty dons and students advertising their own actual or implicit part in the protest was drafted and sent. This had no effect on the proceedings, and the hearing went ahead. Like everyone else, I expected that the student, Owen Holland, would be fined. The prosecution asked for a term’s suspension, or ‘rustication’. But a sense of outrage and disbelief unparalleled in my experience spread through the university today as it became known that the court had imposed a sentence of seven terms rustication which, as earlymodernjohn points out, is almost the whole period of PhD study.

I have to declare an interest at this point, as I’m Owen Holland’s second supervisor, and want very much to read the work he is currently doing and which this sentence is cruelly designed to abort. But my anger, like everyone’s, is directed not only at the absurd and destructive disproportion of the sentence, but at the way it uses bureaucratic authority to punish effective dissent. As earlymodernjohn says:

In representing Cambridge, the Court of Discipline hasn’t just misunderstood protest, or free speech: it’s forgotten what a university is supposed to be. For shame.

Milton and Dryden were both rusticated from Cambridge, it’s true, for quarrelling with college authorities, and Swinburne from Oxford for speaking in support of an attempt to assassinate Napoleon III, but I don’t think anyone has previously been punished in this way for reading a poem.

(Originally posted on the LRB blog on March 15)

‘INDEPENDENCE ≠ ABSOLUTION’

By Bruce Beckles. Republished from donspeakout.

In the prosecution and sentencing of Owen Holland, the University has repeatedly pointed to the independence of individual University Officers (the University Advocate [1]) or statutory bodies (the University’s Court of Discipline [2]), as though this somehow absolves it not only of all responsibility for their actions, but also of any duty to remedy those actions should they be faulty.  From a legal point of view, this is nonsense: should legal proceedings (whether criminal or civil) be initiated in response to the actions in this case of the University Advocate or the Court of Discipline, it is the University one would expect to be the respondent and to be held liable by the court.

Even the quasi-judicial Court of Discipline implicitly acknowledges this: the case before that Court was “University of Cambridge v Mr O Holland” not “Dr R Thornton v Mr O Holland”.  Furthermore, as the complaint against Mr Holland was made by the Proctors, the University’s own Ordinances make clear that in prosecuting the case before the Court of Discipline the University Advocate was acting on behalf of the University.  The relevant section of the Ordinances reads:

If a charge arises from a complaint made by the Proctors, the Advocate shall be responsible for presenting the case on behalf of the University. [3 – emphasis mine]

Indeed, the idea that an institution is legally responsible for the actions of those it has empowered to act on its behalf when they are carrying out their duties is hardly a new one: employment tribunals are only too familiar with this principle.  If a Head of Department were to go around “independently” victimising members of staff, would the University really claim before an employment tribunal that it was in no way responsible?  (If so, no wonder the University prefers to settle when staff and former staff haul it before employment tribunals.)

The Court of Discipline and the University Advocate receive their authority from the Statutes and Ordinances of the University.  The University is unequivocally responsible for its Ordinances [4] and, subject to Privy Council approval, for its Statutes[5].  To say it is in no way responsible for the behaviour of bodies and individuals empowered under statute would be like the government claiming it was in no way responsible for the prosecution and sentencing of homosexuals under anti-gay legislation.  We would not hesitate to reject such claims out of hand where a government was concerned, and we should not hesitate to do so where the University is concerned, either.

And even if the University Advocate and the Court of Discipline have somehow “gone rogue” – which the University seeks slyly to imply by distancing itself from the official actions of its Officers and Courts – it is still within the University’s power to curb their excesses and remedy any wrongs they have committed.  Specifically, the University Council could lay a Grace [6] before the Regent House [7] overturning or commuting Mr Holland’s sentence, or changing the Statutes and Ordinances under which the Advocate and the Court operate.  (Such a Grace would, of course, be subject to Regent House approval, so if the Regent House failed to approve it then, and only then, would the Council be able to say it was not responsible for what had happened.  Since, however, as far as anyone outside the Council can tell, this has not even been attempted, the Council should most certainly be held accountable for what has happened thus far.)

Finally, the Vice-Chancellor has the power under section 5 of Statute K [8] to nullify any action taken by a person or body operating under statute if he believes they have acted in violation of the Statutes, Ordinances or Orders.[9] So if a credible case can be made that the Advocate or the Court were acting in violation of the University’s Statutes and Ordinances then it is directly within the Vice-Chancellor’s power to remedy the situation.  As far as I’m aware there hasn’t been a detailed examination of the actions taken in Mr Holland’s case to see whether any were in violation of the Statutes and Ordinances – and, of course, it should be remembered that the Human Rights Act 1998 requires the University’s Statutes to be “read and given effect in a way which is compatible with the [rights and freedoms guaranteed under the European Convention on Human Rights]” [10], rights such as freedom of expression and freedom of assembly (since the University’s Statutes are “subordinate legislation” for the purposes of that Act [11]).

Thus not only is it unreasonable for the University to imply or claim that it is not responsible for Mr Holland’s prosecution and sentencing, but we should also all be aware that remedy for these actions lies well within the University’s power, and may even lie directly within the Vice-Chancellor’s power.  The supposed independence of the University Advocate and the Court of Discipline do not absolve the University of responsibility, and they most certainly do not leave it incapable of correcting the injustice its Court has inflicted upon one of its students.
BRUCE BECKLES is a member of the University’s governing body, the Regent House; a University Officer; and an elected member of the University’s Board of Scrutiny from 1 October 2011 to 30 September 2015.

________________________________________________________

[1] http://www.varsity.co.uk/news/4534

[2] http://www.guardian.co.uk/education/2012/mar/14/cambridge-student-ban-protest-david-willetts

[3] Regulation 2(b) of Ordinances, Chapter II, UNIVERSITY COURTS,
Initiation of proceedings before the University Tribunal, the Court of Discipline, or the Summary Court (Statutes and Ordinances 2011, p. 200): http://www.admin.cam.ac.uk/univ/so/2011/chapter02-section18.html#heading2-23

[4] Section 1 of Statute A, Chapter II (Statutes and Ordinances 2011, p.
5): http://www.admin.cam.ac.uk/univ/so/2011/statute_a-section2.html#heading2-2

[5] The Universities of Oxford and Cambridge Act 1923: http://www.legislation.gov.uk/ukpga/Geo5/13-14/33

[6] A Grace is a motion for decision presented to the University’s governing body, the Regent House.  See http://www.cam.ac.uk/univ/works/graces.html.

[7] Section 1(e) of Statute A, Chapter IV (Statutes and Ordinances 2011, p.
7): http://www.admin.cam.ac.uk/univ/so/2011/statute_a-section4.html#heading2-4

[8] Statutes and Ordinances 2011, p. 70: http://www.admin.cam.ac.uk/univ/so/2011/statute_k-front.html

[9] Roughly speaking, Orders are Graces of the University which do not directly modify the University’s Statutes and Ordinances.

[10] Section 3(1) of the Human Rights Act 1998: http://www.legislation.gov.uk/ukpga/1998/42/section/3

[11] As the University’s Statutes are made under the Universities of Oxford and Cambridge Act 1923, they fall into category (f) of “subordinate legislation” as defined in section 21(1) of the Human Rights Act 1998: http://www.legislation.gov.uk/ukpga/1998/42/section/21