Hi Den,

To make an analogy :-)

A runner who wins a race and fails a subsequent drug test loses the medal. But what if a previously unknown performance enhancing drug is on the market. Not yet banned, or even detected. Then better tests or more frequent use (possibly stronger and then more able to be identified) come along and another runner months or years later is found to have 'cheated'. Then the tester checks old samples and finds that "Hey, that guy in the 2012 Olympics had this stuff in his/her blood too!" What do we do? What if that runner's peerage, career in the media, successful line of sports products, etc, rest on a faulty reputation? Is it fair not to have some form of statutory limitation? Or is it once a cheat, always a cheat?

TurnitinUK fairly regularly identifies pieces of text belonging to work of students at other universities. Usually, these are stubs, correct quotes, bibliography entries or common phrases. However, with the gradual increase in the database, essay bank essays resold, stolen words from paper only texts not previously available, etc, could suddenly signal that an old assessment be reexamined in light of reuse of offending material, which this time was flagged. How many of us - the few (?) who have had email requests for student work to be released from Turnitin to colleagues in other institutions - have actually then gone on to have a good look at that original work, or to query the requester as to what their concern is? Not many I suspect. so that older runner may never get his medal tarnished.

Potential rant warning...

This brings me on to a wider question of the partially litigious nature of academic offence. I am personally aware of cases where evidence was not correctly considered, and discussing examples with colleagues from across the World, it seems clear that this is not uncommon. Yet the idea of attempting to correct mistakes or challenge decisions often yields the response of 'double jeopardy'; Retrials or appeals by academics are often implicitly or explicitly prohibited, but appeals from students are universally defended. It is this lopsided approach to formal treatment of the issue that can result in cynical resignation. Many lecturers vow never to go through the process, not because of a misleading result, but because of the situation of "witness for the prosecution on trial" where similar treatment in a court of law could be harassment. An inherently unfair practice by improperly trained 'judges', who are the barristers as well, so there is no-one to cry "Objection!"

This is not to question the academic integrity of academic offence boards, but to question whether they should be responsible for presenting evidence, questioning witnesses as well as deciding on the balance of probabilities as well. Again, personal experience as well as the stories of fellow academics have highlighted the worrying situation where lecturer and student may in some cases be isolated from each other's testimony. Often this contradicts directly the ability for defendants to hear their accuser, and can negate the ability to cross-examine or to highlight mutually exclusive statements. In one case I am aware of, a panel applied differing circumstances for different lecturers for cases heard on the same day: three lecturers were allowed to be present for the student statements and vice versa, where the fourth was not afforded this option with no explanation for why he had been excluded. A case can be made for exclusion and inclusion in the presentation of evidence, but not for the inconsistent and selective use of both.

If consistency of practice appears to be non-existent even within the actions of one academic offence panel, yet alone within one institution or across the UK, is it any wonder that ombudsmen are openly criticising the university sector for the way they deal with, and apply penalties to academic offences. Calls for a more litigious approach to dealing with plagiarism cases are often resisted, because academics fear greater workload for cases and abusive pressure from superiors, while institutions might ironically fear legal action and increased costs. However, the current "keep the dust under the carpet" state of affairs only needs one student to mount a legal challenge for chaos to ensue. Could this be why the system is stacked in favour of the student, despite the 'balance of probabilities' yardstick? Universities fear litigation, should their inconsistent practice be brought into public view. Easier to secretly demand a far higher threshold for confirming an offence, or to seriously consider whether the person in the dock has the contacts and connections to bring about a PR disaster for the institution.

So, to come back to Den's original question - namely that the academic considered that plagiarism had occurred but no concrete evidence (i.e. the web page printed out) was available. There are cases where, due to the less stringent idea of balance of probabilities (itself a hotly debated phrase) it might be theoretically possible to convict a student of plagiarism even without the 'bloody corpse'; murder does not necessarily need a body. But what if the case is thrown out in spite of a balanced well-presented case for the prosecution? Years later, when TurnitinUK (or whatever software we are using then) unearths the cadaver, do we then have 'double jeopardy?' Should we retry the case? Can we retry the case?

In the UK, the presentation of new evidence or a successful argument that a trial was not conducted properly, can allow reinvestigation. However, this relies on both sides having access to all the information, and the ability to appeal or challenge a decision. It can be better avoided by best practice in the first place, by allowing suitably trained people to take part in an investigation - presentation of evidence in a suitable form, fair representation for both parties and a presumption of innocence for both defendant and accuser. How are we, as lowly academics to call for and engineer such change? Possibly the best way to highlight the need for change would be to prove that "the law is a ass!" -- CHARLES DICKENS, Oliver Twist, chapter 51, p. 489 in my edition.

Ironically, progress may not be to directly strengthen the rights of accuser nor to diminish those of defendant. Advocates for students from the academic side may be needed for the process to be more transparent. The best prosecutors have been defenders, and vice versa. Just look at the first few episodes of TV's "Shark" for an interesting, if fictional, coverage of student plagiarism. So, rather than academic offences, I would like there to be "offensive academics": lecturers who are prepared to investigate evidence and support students when they are accused of plagiarism. Clearly, it could be difficult for people to do this within their own institutions, so maybe an offensive academics club could be formed, contacted by the NUS or directly by students through the JISC PAS web site. While this might appear to just tilt the balance further (?) in favour of students, I would hope that it would provide an incentive for all concerned to better do their jobs. More formal guidance and real support for academics to prepare and present evidence, a separation of this process and examination of participants from the important decision about the nature and severity of a potential offence, and the responsibility of dealing with these issues fairly within house, might prevent "no win no fee-itis" from getting a foot in the door. I, for one, would be prepared to do this.

Dr. Mike Reddy, JISC PAS Steering Group and offensive academic. Care to join me?

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