Student A.B. (A Minor) v The Board of Management of a Secondary School
|Mr. Justice Garrett Simons
|17 April 2019
| IEHC 255
|2019 No. 83 J.R.
|17 April 2019
 IEHC 255
2019 No. 83 J.R.
THE HIGH COURT
Judicial review – Breach of fair procedures – Premature application – Applicant seeking to challenge the manner in which a secondary school was carrying out a disciplinary process – Whether the application for judicial review was premature
Facts: The applicant student, in judicial review proceedings, sought to challenge the manner in which a secondary school was carrying out a disciplinary process in respect of the student. The disciplinary process was invoked in circumstances where allegations had been made that the student was in possession of a controlled drug, namely cannabis, while on school premises, and had supplied another student with a quantity of the drug. The student admitted that he had personally used cannabis, but denied that he was either in possession of the drug while on school premises or that he was involved in the supply of the drug. The disciplinary process was being carried out pursuant to the school’s Code of Behaviour, modelled, in large part, on guidelines issued by the (former) National Education Welfare Board pursuant to s. 23 of the Education (Welfare) Act 2000 (the NEWB Guidelines). The dispute in the judicial review proceedings centred on whether the school Principal carried out their functions in breach of the requirements of the Code of Behaviour. The student contended that the Principal was not entitled to make what he characterised as “findings of fact”. A related complaint was made that a decision made by the respondent, the Board of Management of the school, on 17 January 2019 to the effect that the Principal’s investigation was properly conducted in accordance with fair procedures gave rise to an apprehension that the Board had prejudged the matter. The student made a further complaint that the hearing envisaged before the Board of Management would not allow him a proper opportunity to challenge the evidence against him. The student also complained that the provisions of the Code of Behaviour were unclear, and, in some instances, contradictory. The school denied that there had been any breach of fair procedures. The school also made the point that the application for judicial review was premature in circumstances where the disciplinary process had not yet been completed.
Held by the High Court (Simons J) that the application for judicial review should be dismissed on the basis, first, that there was an adequate alternative remedy available by way of appeal under s. 29 of the Education Act 1998, and, secondly, that the application for judicial review was, in any event, premature.
Simons J held that he would make an order dismissing the application for judicial review in its entirety.
The within proceedings relate to the education of a minor. Accordingly, I made an order at the outset of these proceedings pursuant to section 45 of the Courts (Supplemental Provisions) Act 1961 directing that the proceedings be heard otherwise than in public. I also gave directions pursuant to section 40 of the Civil Liability and Courts Act 2004 (as amended) prohibiting the reporting, publication or broadcasting of any information which might enable the minor to be identified. In particular, I directed that none of the names of the parties, nor of the school the subject-matter of the proceedings, are to be disclosed. These orders remain in force.
The names of the parties and the school will not be referred to in this judgment.
These judicial review proceedings seek to challenge the manner in which a secondary school (‘ the School’) is carrying out a disciplinary process in respect one of its students (‘ the Student’). In brief, the disciplinary process was invoked in circumstances where allegations had been made that the Student was in possession of a controlled drug, namely cannabis, while on school premises, and had supplied another student with a quantity of the drug. The Student has admitted that he has personally used cannabis, but steadfastly denies that he was either in possession of the drug while on school premises or that he was involved in the supply of the drug.
The disciplinary process is being carried out pursuant to the School's Code of Behaviour. This Code of Behaviour is modelled, in large part, on guidelines issued by the (former) National Education Welfare Board pursuant to section 23 of the Education (Welfare) Act 2000 (‘ the NEWB Guidelines’). The Code of Behaviour provides for a staggered procedure in respect of the possible expulsion of a student, consisting of a number of ‘steps’. The NEWB Guidelines state that it is a matter for each board of management to decide which of the tasks involved in these procedural steps requires separate meetings, and which tasks can be accomplished together in a single meeting, consistent with giving parents due notice of meetings and a fair and reasonable time to prepare for a board hearing.
The first two steps involve the carrying out of a ‘detailed investigation’ under the direction of the school principal (‘ the Principal’) and the making of a recommendation to the Board of Management by the Principal. Thereafter, the Board of Management is to consider the Principal's recommendation, and to hold a hearing.
The dispute in the judicial review proceedings centres on whether the Principal carried out their functions in breach of the requirements of the Code of Behaviour. The Student contends that the Principal is not entitled to make what he characterises as ‘findings of fact’. It is submitted that the making of a ‘finding of fact’ is something which is reserved exclusively to the Board of Management, and that the Principal, by purporting to make ‘findings of fact’, has contaminated the decision-making process. A related complaint is made that a decision made by the Board of Management on 17 January 2019 to the effect that the Principal's investigation was properly conducted in accordance with fair procedures gives rise to an apprehension that the Board has prejudged the matter.
The Student makes a further complaint that the hearing envisaged before the Board of Management will not allow him a proper opportunity to challenge the evidence against him. Whereas leading counsel on behalf of the Student was at pains to stress that his client is not necessarily looking for a right to cross-examine the witnesses against him (a number of fellow students who are themselves minors), counsel submitted that there was an obligation on the School to put forward proposals identifying what procedure would be followed. It was suggested, for example, that a procedure might be put in place whereby the members of the Board of Management would themselves interview the other students in the presence of the Student's parents (rather than rely on the summary of the interviews contained in the Principal's report).
The Student also complains that the provisions of the Code of Behaviour are unclear, and, in some instances, contradictory. For example, it was suggested that it is unclear whether expulsion is mandatory in the case of an alleged supply of drugs. This issue has, however, been clarified in correspondence prior to and during the course of the proceedings.
The School denies that there has been any breach of fair procedures. The School also makes the point that the application for judicial review is premature in circumstances where the disciplinary process has not yet been completed. In this regard, the School relies on the judgment of the Supreme Court in An Post ; (‘ ’).
For the reasons set out in detail herein, the application for judicial review is dismissed. First and foremost, judicial review is inappropriate in circumstances where there is an adequate alternative remedy available to the Student. More specifically, there is a statutory right of appeal against a decision to permanently exclude a student from a school. This right of appeal is provided for under section 29 of the Education Act 1998. This appeal takes the form of a full hearing on the merits, with the Appeals Committee having jurisdiction to make a determination on the issues raised. See ; .
An applicant will ordinarily be required to exhaust this statutory right of appeal before having recourse to the courts by way of an application for judicial review. As discussed at paragraphs 41 et seq., there are cogent reasons—grounded in both principle and pragmatism—as to why the courts should exercise restraint before entertaining judicial review proceedings in matters of school discipline.
Secondly, even if judicial review were an appropriate remedy, the application in the present case is premature. The disciplinary process is still in train, and no substantive hearing has yet taken place before the Board of Management. Still less has a decision actually been made to expel the Student. The Supreme Court in indicated that a court should only intervene in an ongoing disciplinary process where it was clear that the process has gone wrong; that there is nothing that can be done to rectify it; and that it follows that it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law.
The circumstances of the present case come nowhere close to meeting this threshold for intervention. The criticisms of the detailed investigation carried out by the Principal are unjustified,...
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