Contract cheating and essay mills: how much proof do you need?

If members of a jury can understand ‘beyond reasonable doubt’, then so too can university panels, says Daniel Sokol

November 13, 2017
Scales, justice, law
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In October, the Quality Assurance Agency for Higher Education published Contracting to Cheat in Higher Education. The guidance aims to tackle the growing problem of contract cheating – which is when students ask a third party to do their work, usually for money, and then submit it as their own.

Jo Johnson, the UK universities and science minister, has called the practice “unacceptable and pernicious”.

It is impossible to determine the prevalence of contract cheating, but one large essay-writing company says that it has seen a 20 per cent increase in the number of UK customers in the past two years.

The QAA’s guidance is full of good advice for higher education institutions and, importantly, it stresses that “all persons involved in considering academic misconduct should be trained and qualified to undertake their roles”. Contrary to popular belief, an understanding of natural justice and procedural fairness do not come naturally to most people. They must be taught, as they are to lawyers and judges.

Contract cheating is one of the most serious instances of academic misconduct. The consequences for students found guilty are drastic, usually expulsion or withdrawal from a course. Their future prospects and earning capacity might be greatly affected, and so might their mental health.

While the burden of proof refers to who has the duty to prove something, the standard of proof refers to the degree necessary to discharge that duty. The QAA guidance recommends that the standard of proof be “the balance of probabilities” (ie, more likely than not that the student has cheated). It notes that the higher standard of “beyond reasonable doubt” “may seem proportionate given the seriousness of the potential sanctions but may be too strict to enable effective decision making”.

This rationale for dismissing the higher standard is unclear. Every day, juries in criminal courts up and down the country make effective decisions using that very standard. If members of the jury can understand the standard, then so too can appropriately trained university panels.

The higher standard of proof will enable decision-making as effectively as the lower standard, but it will probably result in fewer findings of guilt. The difference between the two standards is significant. I often tell clients that if the standard is “beyond reasonable doubt”, they should win the case; but if it is “on the balance of probabilities”, they should lose it.

That is because many explanations by students are possible but unlikely, such as the student accused of collusion who says the other student must have stolen their essay from the printer and used it in their work.

In practice, adopting the higher standard will mean that some students who cheated will “get away with it”. This is unfair on honest students. It will also mean, however, that some innocent students will not be wrongly convicted. I side here with Sir William Blackstone, who in the 1760s wrote: “Better that ten guilty persons escape than that one innocent suffer.”

The consequences of wrongly convicting and expelling an innocent student will usually be more serious than the consequences of giving a dishonest student a better grade than he or she deserves.

Most universities adopt the civil standard of proof. Some are silent as to the standard, which creates confusion. A handful of universities use the “beyond reasonable doubt” standard, such as Imperial College London and Keele University.

As far as I am aware, there is no evidence that these institutions have greater rates of cheating than other institutions. More universities should follow their enlightened approach.  

Daniel Sokol is a barrister, a former university lecturer, and runs an organisation that assists students with university-related appeals.

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