At the risk of being provocative (but I hope not offensive), 
I think the formal legal position is fairly clear (in 
principle, if not quite so clear when applied to a specific 
case) and generally accepted by all the lawyers I have heard 
speak on the subject, ie:

reaching a decision on the balance of probabilities in cases 
of academic misconduct is lawful, provided that (i) your 
procedures comply with the principles of natural justice and 
(ii) the balance of probabilities is understood to mean 
that, where the penalty is (relatively) minor, it is more 
likely than not that the person committed the offence (ie a 
51% or greater probability) but that the more significant 
the penalty is (would be), the more satisfied it is 
necessary to be that the person did commit the offence 
(while never having to be as satisfied as the criminal 
standard of beyond reasonable doubt).

Where institutional lawyers and senior managers can get 
bogged down is in the perceptions and analysis of relative 
risk.  Can the institution be sure that its procedure will 
be correctly followed and natural justice applied in every 
case?  What is the negative impact on the institution if it 
does not penalise a student who was, in fact but criminally 
unprovably, guilty?  What is the negative impact on the 
institution if it penalises a student who can then 
demonstrate a procedural error in the process (or who can't 
even do that but who can (or whose father can) generate a 
lot of usually unhelpful publicity and take up a lot of 
staff time defending a perfectly correct decision)?

In the past, when academic misconduct was (allegedly) much 
less common, the former negative impact on the institution 
was not only quantitatively much smaller than the latter but 
also (again allegedly) relatively rare.  Consequently, there 
was an obvious pressure on senior managers and hence 
institutions (both advised by lawyers who were well briefed 
on the overall priorities of the institution) to err on the 
side of not producing a false positive.  Requiring proof 
beyond reasonable doubt achieves that (although this is not 
to deny the existence of philosophical, etc reasons for 
adopting such a test).

Nowadays, with the evidence of the high levels of academic 
misconduct amongst students, the balance of risk has changed 
and, notwithstanding the philosophical arguments, any 
institution that continues to apply the criminal standard of 
proof will have to explain why "it is better and more 
satisfactory to award a thousand unearned degrees than to 
deprive a single person of a degree that they should have 
been awarded" (with apologies to Maimonides) and how that is 
compatible with the maintenance of academic standards.

Jon Appleton

Mcintyre D A (CELT) wrote:

> That's a good point and would, no doubt, take an age to be checked through by universities legal bods!  But then there's the other point, isn't there, about consistency of actions and penalties i.e. applying a principle of 'balance of probabilities' in one case of plagiarism but 'beyond reasonable doubt' in another.  I'd also be worried that shifting to a position of beyond reasonable doubt would seem to move away from civil law and toward criminal law.  Heaven forbid!
>  
> Regards
> Denize McIntyre
> 
> ________________________________
> 
> From: Plagiarism on behalf of Derek J Ord
> Sent: Tue 22/05/2007 14:15
> To: [log in to unmask]
> Subject: Re: Question about penalties for proven cases
> 
> 
> 
> Interesting issues arise here about the burden of proof.  You mention
> "balance of probabilities".  Many institutions would prefer "beyond
> reasonable doubt" for such an important issue as whether or not to award
> a degree.
> 
> I'm not saying who is right or wrong, (or even if there is a right and
> wrong), but I think it raises interesting issues.
> 
> 
> 
> 
> 
> Derek.
> _________________________________
> Derek Ord
> Head of Student Administrative Services
> University of Hull
> (01482) 465980
> 
> -----Original Message-----
> From: Plagiarism [mailto:[log in to unmask]] On Behalf Of Jon
> Appleton
> Sent: 22 May 2007 12:21
> To: [log in to unmask]
> Subject: Re: Question about penalties for proven cases
> 
> Sorry it's a Tuesday lunchtime response to a Friday afternoon question
> but:
> 
> 1) I think your institution would be in considerable difficulty if it
> does not have an ability to remove an award once conferred and the
> willingness to do so for due cause.
> Suppose you awarded a PhD and found out some years later that the thesis
> had been 100% copied from elsewhere.  Do you simply shrug and say, "We
> didn't spot this at the time, so he/she can carry on calling themself Dr
> X"?  If you accept that that is not an appropriate response, how can you
> justify treating an undergraduate award differently?
> 
> 2) I agree absolutely with your views on the correct way to respond to
> such a situation (and it is not an infrequent one, given the growing
> prevalence of essay mills).  If the tutor is satisfied on the balance of
> probabilities that, in their academic judgement, the work is not that of
> the student submitting it and if that academic judgement is tested in
> the appropriate disciplinary procedures and upheld, also on the balance
> of probabilities, then the student should be deemed to have committed
> plagiarism and the appropriate penalty imposed at that point.
> 
> All the best,
> 
> Jon Appleton
> 
> 
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