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Supreme Court judgment on an unlawful suspension in Northern Ireland

July 22nd, 2010 by Edward Capewell

With appropriate timing for the launch of this new blog, the Supreme Court has recently handed down two education law judgments: In the matter of an application by JR17 for Judicial Review (Northern Ireland) [2010] UKSC 27 (23rd June 2010) and A v Essex City Council [2010] UKSC 33 (14th July 2010). Peter Oldham QC has blogged on A v Essex here, this post concerns JR17.

The appellant (JR17) was a Year 12 pupil at a school in County Antrim. He was suspended from school following an allegation made confidentially to the principal by a female pupil ‘A’. The allegation was that JR17 had been engaged in a campaign of intimidating behaviour both inside and outside of school that had been of such severity to put A at risk of suicide. It had also come to the attention of the principal that JR17 had been accused of criminal offences of a sexual and violent nature outside the school. In order therefore to protect the identity and the mental health of the girl who had complained the principal decided to suspend the appellant. The principal emphasised to JR17 and his parents that the suspension was ‘precautionary’ and was not ‘an assumption of guilt’.

Suspensions in the school were governed by the ‘Procedures for the Suspension and Expulsion of Pupils in Controlled Schools’ (“the Scheme”) made by the Department for Education Northern Ireland under statutory powers. Put shortly, the terms of the Scheme only permitted a pupil to be suspended on ‘disciplinary grounds’ and not on ‘precautionary grounds’ (adopting the language used by the House of Lords in A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363.)

The issues on the appeal were therefore these – (1) On what ground was JR17 suspended? (2) Did the principal have power to suspend him on that ground? (3) If he did have such a power was it exercised lawfully? (4) Was there a breach of Article 2 of the First Protocol of the European Convention on Human Rights (“A2P1”)?

The Supreme Court (Sir John Dyson SCJ giving the leading judgment) answered the issues as follows – (1) Despite the Principal’s description of the suspension as ‘precautionary’ it was clear that he considered that there was a prima facie case that the appellant was guilty of indiscipline. The suspension was therefore disciplinary. (Lords Rodger and Brown preferred to say that the suspension had indeed been ‘precautionary’ and therefore the principal’s actions had been ultra vires the Scheme). (2) It followed that there was power under the Scheme to suspend the appellant on disciplinary grounds. Disagreeing with the Court of Appeal, the Supreme Court also held that there was no common law power for a Principal to suspend on precautionary grounds. The Scheme defined exhaustively the circumstances in which a suspension could be made. (3) The suspension was unlawful under the Scheme as JR17 had been given no opportunity whatsoever to put his version of events before being suspended. He had simply been told that unspecified allegations had been made against him and he was henceforth suspended. The principal had also failed to give reasons to the appellant or his parents for his decision. (4) There had however been no breach of A2P1. Applying Lord Bingham’s guidance in the Lord Grey case, the Supreme Court held that there had been no denial of ‘effective access to such educational facilities as the state provides’. During the suspension work had been provided for the appellant to do at home in all the principal subjects. He had also been given home tuition. The fact that such provision was ‘not as effective from an educational point of view as attendance in a classroom would have been’ was immaterial.

One further interesting point about this case is that Lady Hale expressed some dissatisfaction with the majority reasoning on A2P1. Although she did not wish to press her doubts to a dissent she observed that “Left to myself, I might have thought that three months out of school in the run up to important public examinations was indeed to deny [the appellant] effective access to the educational facilities which the state provides for year 12 pupils” [103]

It seems clear from this case and A v Essex that there is a division of view on the scope of A2P1 developing within our highest court.