Imagine this: You’re called into a cold meeting room on campus. It’s not a court, there’s no judge, the ‘jury’ is a panel of professors you’ve never met, with a file that has your name on it. You’ve been accused of ‘serious misconduct.’ Maybe it’s a plagiarism charge or a row at a society event. You think, ‘They have to prove it beyond a shadow of a doubt, right?’ Wrong. Welcome to the world of administrative law, where your entire future might be decided by a mathematical ‘maybe’.
We spend our time reading about the high-stakes drama of the Criminal Court in newspapers, but the reality is that the most consequential legal battles for students happen right here on campus, under a set of rules called ‘fair procedures’ in the administrative process. And the biggest rule of all? The standard of proof.
In criminal courts, guilt must be proven beyond a reasonable doubt. In university disciplinary hearings, the standard is far lower: the balance of probabilities. If it’s more likely than not that the allegation is true – even by a narrow margin – it’s proven.
For years, some universities held themselves to the criminal standard. But things are changing fast. In 2019, the University of Cambridge ditched the ‘beyond a reasonable doubt’ standard for sexual misconduct cases, moving to the balance of probabilities, as the high criminal standard made it too difficult to successfully prosecute such cases, potentially leaving the campus less safe.
Our own UCD Disciplinary Code follows suit, providing that decisions will be made on the balance of probabilities. Essentially, your expulsion could be decided by the narrowest of margins.
Here’s where it gets interesting for us law nerds. In the Irish courts, there is a strange hierarchy of who gets the ‘best’ protection. Solicitors and doctors are often entitled to the highest protection: proof beyond all reasonable doubt. The Supreme Court in Carroll v Law Society held that because being admitted to the roll of solicitors is so serious, the criminal standard should apply. Meanwhile, school teachers and politicians get the ‘flexibly applied’ civil standard. And if you’re a tenant facing eviction? You’re stuck with the lowest form of protection: the bare balance of probabilities.
The question we have to ask is: Why should a criminal standard be required for a doctor’s livelihood, but a purely civil one for a student’s education or a family’s home? High standards of proof have ‘social costs’ – the higher the bar, the lower the success rate of the prosecution, which can put public welfare at risk. It’s a balancing act between protecting the individual and protecting the community.
If you think a plagiarism charge is just a slap on the wrist, the High Court disagrees. In Flanagan v UCD, the court noted that a charge of plagiarism is ‘quasi-criminal’. Given the dire consequences, the court held that a student was entitled to a lawyer because a Students’ Union representative wasn’t sufficient to handle complex cross-examination.
However, modern university documents often only mention support from Student Advisors or the SU, not a right to legal representation. This is a major point of tension. Under the McKelvey test, legal representation is only ‘truly necessary’ in exceptional cases of above-average complexity.
The standard of proof is only half the story. The other half is who decides. It isn’t just about the proof; it’s about who is deciding. Administrative law relies on the ‘reasonable and informed observer’ to assess bias. The question isn’t whether a decision-maker was biased, but whether a fair-minded observer would reasonably suspect bias.
This isn’t a test of whether the person was biased, but whether a ‘fair-minded’ person, knowing all the facts, would have a ‘reasonable apprehension’ of bias. The courts argue that this onlooker standard is vital to maintaining public confidence in the system. If we feel the system is rigged, the rule of law falls apart.
The courts describe the reasonable person as calm, informed, and level-headed – not cynical or prone to conspiracy. They know all the relevant facts, even ones the public might miss. One can argue that this is unrealistic. The reality is that real students don’t behave like that. This ‘reasonable’ person isn’t the average student pulling an all-nighter before exams. They’re calm, informed, and rational. They don’t panic, don’t skim contracts, and don’t act emotionally under pressure.
So, why does the ‘reasonable standard’ matter to a 20-something-year-old sitting in a lecture?
We live in a world of administrative power. From your Erasmus application to a disciplinary hearing, the ‘standard of proof’ is the invisible line between you and a life-changing decision.
Is the ‘balance of probabilities’ fair for students? On one hand, it makes the university more ‘protective’ and efficient. On the other hand, it means your ‘civil right’ to an education – a right recognised under Article 6 of the ECHR – can be taken away on a 51% certainty.
In the eyes of the law, you aren’t just a student; you’re a participant in an administrative process where the standards are flexible, the stakes are high, and the ‘maybe’ matters more than you think.
Anna Portada O’Driscoll BBL – Law Correspondent