Research misconduct - should it be criminalised?

Readers of this briefing are likely to be familiar with depressing reports such as this and may even keep an eye on the Retraction Watch blog (www.retractionwatch.com) which tracks retractions of papers “…as a window into the scientific process”.

The integrity of university research is clearly a growing issue. Before Parliament was dissolved prior to the General Election, the House of Commons Science and Technology Committee had launched an inquiry into the subject. That inquiry seems likely to be resurrected as part of the new Parliamentary timetable.

But if the evidence suggests, as it does, that research misconduct is increasing, what is to be done about it?  There is no simple answer to the question.  The issue is multi-dimensional.  Why do researchers commit research misconduct? Inevitably, there is no simple answer to that question either.  Peer pressure; pressure to publish; to enhance the “impact” of research or to help climb the academic career ladder.  All are possible reasons or motivations.

What role does, or should the law play in this area, given that most investigations and their consequences (at least for the individuals concerned) are dealt with internally? Clearly public law has a role to play in overseeing the conduct and fairness (natural justice) of an inquiry or disciplinary process. Equally, employment law will influence the fairness or otherwise of an individual’s treatment if dismissal or some other drastic career-defining solution is imposed.

Does the criminal law have any role to play and of not, should it?

This is an issue which has been debated rather more in the US than here in the UK. In 2014, in a well-reported interview, Richard Smith, a former trustee of the UK Research Integrity Office, suggested that the time had come to criminalise at least certain elements of research misconduct.

In that interview, Mr Smith outlined a number of  reasons for his conclusion.  Two are worth considering here in a little more detail.

First, what are the consequences of research misconduct – particularly the fabrication or manipulation of research results to create a false impression?  Research misconduct is not necessarily a “victimless crime”. Take, for example, a clinical trial underwritten at considerable expense by a pharmaceutical company, but where the researcher concerned deliberately ignores a trial protocol or creates false results to make the outcome more promising. (Such a case is within the experience of the author of this article).

The “victims” here might include any innocent co-researchers whose career prospects or academic credentials might have been damaged by association with the “fraudster” and the pharmaceutical company whose entire trial and all the expense involved is possibly wasted.

The company would potentially have a damages claim against the researcher or, more likely, against his/her employing institution given (a) the law of vicarious liability and (b) a rather deeper pocket or insurance coverage.

Does the criminal law have any role to play in these circumstances? The Fraud Act 2006 creates three offences, two of which can be considered.  First, under Section 2, fraud by false representation and second, under section 4, fraud by abuse of position.

The elements of the false representation offence are that someone:

• Dishonestly makes a false representation;
• Intends, by making the false representation to
o Make a gain for himself or a third party;
o Cause loss to or expose a third party to risk of loss.

A researcher fraudulently manipulating or fabricating results would presumably be found to have made a false representation and have done so dishonestly. The problem lies in the gain or loss limbs of the offence. The terms “gain” and “loss” relate to financial gain or loss or other property. 

The “loss” to a pharmaceutical company of sums wasted on an aborted trial are real enough, but could it be proven that the researcher “intended” that to happen.  That is much more speculative and given the pressure on prosecuting authorities to be sure of securing a conviction, prosecuting a researcher under the Section 2 offence seems remote.

The Section 4 offence of fraud by abuse of position is made out when someone:

• Occupies a position in which he is expected to safeguard , or not act against, the financial interests of a third party;
• Dishonestly abuses that position to:
o Make a gain for himself or someone else; or
o Cause loss to another person or expose that person to a risk of loss.

Abuse can take a number of forms such as an employee downloading a customer list for use in another job. The researcher abusing a position by fraudulently creating research results is not hard to imagine, but, like the Section 2 offence, the problem lies in the “gain” and “loss” element of the offence and the speculative nature of any prosecution.

So even if a pharmaceutical company or a research council found its investment wasted due to the actions of an individual, there does not seem, at present, to be any appropriate criminal offence which might encompass whatever wrongdoing had taken place.

Mr Smith’s second major point is that our criminal legal system is “…in the business of gathering and weighing evidence – which universities and other employers of researchers are not very good at.”

This observation has some force.  The usual method of determining research misconduct is the “three wise men” model by which a team of experts examine and make a determination on a case of alleged misconduct which has overcome an initial prima facie test and hence been ruled (by whom and to what standard?) to have enough substance to proceed to a full hearing.

The problem with the existing model is that it assumes the panel to have access to full information even if they do not have enforceable powers to compel disclosure of documents or other evidence.  Further, how satisfactory is the forensic certainty of an evidential review in the absence of cross examination of witnesses? Finally, many misconduct inquiries will proceed on the civil law test of balance of probabilities, but if the allegation is, in some cases, one of research fraud, does that not entail a higher criminal standard of proof, not least because of the potentially drastic career consequences for those accused of such academic offences?

So there are some arguments in favour of introducing an element of criminal law into the field.  Against them however is a fundamental objection: would it improve the quality of research? Would a researcher’s inclination to cut corners or be creative in the manipulation of results be lessened by the knowledge that a criminal conviction might be the result?  It is impossible to tell.  Researchers are human and humans make all sorts of decisions based on their assessment of risk.  How likely is that I will get caught? How likely is it that the police will use their scarce resources investigating something like this?

The difficulty of providing answers to these questions is not a reason to avoid them.  Perhaps the Science and Technology Committee will turn its mind to the issue if, in a new Parliament, it is asked to pick up where it left off earlier this year.

If you would like to discuss a similar initiative, please contact John Hull ([email protected] / 020 3375 7352)  or your usual contact at the firm on 020 3375 7000. Further information can also be found on our 'focus on Brexit' page.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2017