R.v (A Minor) v Secretary General of the Department of Education and Science

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Noonan
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IEHC 595
• Docket Number: [2019 No. 212 J.R.]
• Date: 31 July 2019

BETWEEN

R.V. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND K.M.)

APPLICANT

AND

SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SCIENCE, JAMES HAYES, NORA MARY O'RIORDAN

AND

ELAINE COLLINS

RESPONDENTS

AND

THE BOARD OF MANAGEMENT OF A SCHOOL

NOTICE PARTY

[2019] IEHC 595

Noonan J.

[2019 No. 212 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Objective bias – Fair procedures – Applicant seeking judicial review – Whether there was a reasonable apprehension of objective or perceived bias by the second respondent

Facts: The applicant was a student at the notice party secondary school. On the 24th September, 2018, two students at the school, not including the applicant, arranged to fight each other at a designated location on the 26th September. The applicant brought a knife into the school on the 25th and the 26th September as a show of support for one of the students involved in the fight. The applicant showed the knife to a number of students in the school. He brought the knife to the prearranged fight at the designated location on the 26th with the intention of using it if someone else showed up with a knife/weapon. The applicant subsequently admitted this behaviour and expressed remorse for it. The matter came to the attention of the school principal who suspended the applicant on the 27th September, 2018. The principal referred the matter to the Board of Management who convened a meeting on the 5th November, 2018 at which the applicant’s mother attended. On the 6th November, 2018, the Board wrote to the applicant’s mother conveying its decision to expel the applicant from the school. The letter noted that the Board was required under the provisions of the Education (Welfare) Act, 2000 to allow for a period of 20 school days before reaching a final decision during which period a facilitation process would be available. At the expiry of the 20-day period, the Board decided to confirm its decision to expel the applicant and communicated that decision to the applicant’s mother by letter of the 7th December, 2018. On the 11th December, 2018, an appeal against the Board’s decision was entered on the applicant’s behalf pursuant to s. 29 of the Education Act 1998. The appeal was convened for the 9th January, 2019 and the panel consisted of the second, third and fourth respondents, Mr Hayes, Ms O’Riordan and Ms Collins, with the second respondent in the chair. Following the conclusion of the hearing on the 24th February, 2019, the appeals committee delivered a written decision on the 26th February, 2019 rejecting the appeal. In judicial review proceedings, the applicant sought an order of certiorari quashing the decision of the 24th February, 2019 on the grounds that there was a reasonable apprehension of objective or perceived bias by the second respondent by virtue of his attendance at the school as a child, 55 years earlier. The alternative ground was advanced that the applicant’s right to fair procedures was breached by the failure of the first respondent, the Department of Education and Science, to furnish him with the backgrounds of the members of the appeals committee.

Held by the High Court (Noonan J) that, as a matter of law, no reasonable apprehension of bias arose in this case. Noonan J held that there was no denial of fair procedures to the applicant in this case.

Noonan J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 31st day of July, 2019

Facts

1 The applicant is a teenage boy and is a former student at the notice party secondary school (‘the School’). The applicant commenced his second year at the school in late August 2018. On Monday the 24th September, 2018, two students at the school, not including the applicant, arranged to fight each other at a designated location on Wednesday the 26th September. The applicant brought a knife into the school on Tuesday the 25th and Wednesday the 26th September as a show of support for one of the students involved in the fight. The applicant showed the knife to a number of students in the school on Tuesday and on Wednesday. He brought the knife to the prearranged fight at the designated location on the 26th with the intention of using it if someone else showed up with a knife/weapon. The applicant subsequently admitted this behaviour and expressed remorse for it.

2 The matter came to the attention of the school principal who suspended the applicant on the 27th September, 2018. The principal referred the matter to the Board of Management who convened a meeting on the 5th November, 2018 at which the applicant's mother attended. On the 6th November, 2018, the Board wrote to the applicant's mother conveying its decision to expel the applicant from the school. The letter noted that the Board was required under the provisions of the Education (Welfare) Act, 2000 to allow for a period of 20 school days before reaching a final decision during which period a facilitation process would be available. At the expiry of the 20-day period, the Board decided to confirm its decision to expel the applicant and communicated that decision to the applicant's mother by letter of the 7th December, 2018.

3 On the 11th December, 2018, an appeal against the Board's decision was entered on the applicant's behalf pursuant to s. 29 of the Education Act 1998. Subsection (4)(b) of this section provides that hearings are to be conducted with the minimum of formality consistent with giving all parties a fair hearing. Both prior to and during the course of the appeal process, the applicant's mother was at all times assisted by her advocate, Mr. Kevin Finn, who describes himself as a consulting engineer, and is a representative of an entity known as the Federation of Catholic Secondary Schools Parent Associations. The appeal was convened for the 9th January, 2019 and the panel consisted of the second, third and fourth respondents with the second respondent in the chair. The applicant was represented by Mr. Finn.

4 Prior to the hearing of the appeal and almost from the outset of the process, Mr. Finn played a very active role in the matter. In particular, he engaged in very lengthy, voluminous and protracted correspondence with the parties raising a myriad of issues. Over an approximately six-week period, Mr. Finn submitted some 78 pages of requests, demands and submissions to the respondents. On the 24th January, 2019, Mr. Finn prepared a schedule of documents comprising 244 items, many emanating from himself, between the 15th October, 2018 and the 24th January, 2019. On the same date, in one email alone Mr. Finn submitted what he described as ‘preliminary issues’ which comprised 44 items, with item 44 being broken down into 12 sub-categories.

5 One of the issues that arises in these proceedings concerns the alleged refusal of the first respondent (‘the Department’) to disclose what is described as ‘background’ information concerning the members of the appeal panel. On the 12th December, 2018, Mr. Finn wrote to the Department stating:

‘6.0 Please confirm if the credentials (background, expertise and experience) of the appeal committee will be notified to the parties.’

6 In his own affidavit, Mr. Finn avers that on the 3rd January, 2019, he spoke to an official in the Department, Ms. Mairead Reynolds, by telephone and asked her to furnish him with background information and credentials of the three appeal committee members. Ms. Reynolds in response informed Mr. Finn that one was a school inspector/former inspector and that the other two members were former school principals. He complains that no further information was forthcoming. Mr. Finn again at the hearing on the 9th January, 2019 asked the appeals committee members for their credentials individually and was told in response by the second respondent that these were already given by Ms. Reynolds.

7 It is clear from the affidavits that the hearing on the 9th January, 2019 was protracted and difficult. The evidence suggests that appeals of this nature are normally concluded in one to two hours. At the outset of proceedings, Mr. Finn informed the committee that he required three days for a full hearing. The second respondent avers that in hearing s. 29 appeals over a twelve-year period, he had never experienced an appeal not having been completed in one hearing. His evidence is that Mr. Finn's opening statement continued for 3 hours and 5 minutes and was still not concluded when the hearing had to be adjourned. Most of Mr. Finn's presentation was concerned with procedural issues.

8 It is clear from all the evidence before the court that there were robust and sometimes testy exchanges between Mr. Finn on the one hand and the second respondent on the other. However most of this arose as a result of attempts by the second respondent to get Mr. Finn to focus on the actual issues with which the appeal was concerned. It would appear that Mr. Finn viewed these interventions as a denial of fair procedures and evidence of bias on the part of the second respondent. That much is evident from a letter sent the next day, the 10th January, 2019, by Mr. Finn to the Department complaining about the chairperson's ‘outrageous, abusive and highly prejudicial behaviour’ towards him.

9 Mr. Finn expressed the view that ‘the chairperson by his attitude and outrageous behaviour showed bias and prejudice towards the appellant [K.M.], and that he was and is biased and prejudiced against the appellant.’ The purpose of the letter was to request a new hearing before a new appeal committee. Mr. Martin McLoughlin on behalf of the Department replied to Mr. Finn's email later the same day saying:

‘In relation to your question on the chair of the appeals committee, there is no provision in legislation or procedures to replace a chair during an appeal hearing, once the appeal hearing has commenced.’

10 A short time later, Mr....