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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> JR17 for Judicial Review (Northern Ireland) [2010] UKSC 27 (23 June 2010) URL: http://www.bailii.org/uk/cases/UKSC/2010/27.html Cite as: [2010] HRLR 27, (2010) 13 CCL Rep 357, [2010] UKSC 27, [2010] NI 105, [2010] ELR 764, [2010] UKHRR 984 |
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Trinity Term
[2010] UKSC 27
On appeal from: [2009] NICA 14
In the matter of an application by 'JR17' for Judicial Review (Northern Ireland)
Appellant Karen Quinlivan BL Leona Askin BL (Instructed by Madden & Finucane ) |
Respondent Heather Gibson QC Paul McLaughlin BL (Instructed by Education & Library Board Solicitors ) |
|
Intervener (Northern Ireland Commissioner for Children and Young People) Dr Tony McGleenan BL (Written submissions) (Instructed by John J Rice & Co Solicitors) |
SIR JOHN DYSON SCJ
The facts
"Issues Discussed
- Given the principle of 'innocent until proven guilty' how to assess any risk posed by [the appellant] to females in the school.
- [The appellant's] Human Rights.
- The balance of probability.
- The concept of proportionality in any measures that may be undertaken.
- The lack of any documented assessment of the alleged harm to [A].
- The principle that Child Protection overrides rights of individuals.
- The statutory duty on the Principal and Board of Governors to safeguard all the children in their school.
Action Plan
1. Social Services to carry out an assessment of the alleged incident with [A] and of any impact on her emotions.
2. [The appellant] to be suspended from school for 5 days, with the possibility of extension, whilst the above assessment takes place.
The suspension to be viewed as a precautionary measure, not a presumption of guilt.
3. PSNI to keep the other agencies informed of any developments in the justice system.
4. Following the Social Services assessment, NEELB to convene a formal multi-agency/multi disciplinary meeting to a) assess risk within the school and in transport to and from school b) plan the management of any perceived risk."
"Following the Case Conference on Thursday 1 February 2007, at which you were present, a Risk Assessment meeting with representatives from the school, Social Services, NEELB Child Protection Officer, and the PSNI took place in school on Tuesday 6 February 2007. Based on the information presented at this meeting it was agreed that, in the circumstances, [the appellant] should not remain in school.
It must be emphasised that this is not an assumption of [the appellant's] guilt in these matters but instead a precautionary strategy which has been taken, I believe, in everyone's best interests, including [the appellant's].
A further meeting will be arranged by the NEELB as soon as possible in order to consider the matter further.
In the meantime, [the appellant] is suspended from school for five days, i.e. Thursday 8 February – Wednesday 14 February with a possible extension to follow.
Work will be made available for collection from the school office by an adult after 10.00 am on Thursday 8 February 2007 for [the appellant] to complete during this period of suspension.
Please contact me should you wish to discuss this matter or require any further information."
"It has come to my attention that the PSNI is investigating a number of allegations outside of school of a serious nature which include sexual attacks on girls.
I have also had recent reports from girls who claim that he is deliberately intimidating them in school.
Following a meeting with representatives from Social Services, NEELB Child Protection Officer and the PSNI, I have decided that [the appellant] should not at this time remain in school. "
The wording of the draft letter was changed following advice that the principal received from Mrs O'Hare.
The statutory framework
Suspension and expulsion of pupils
"(1) Each board shall prepare a scheme specifying the procedure to be followed in relation to the suspension or expulsion of pupils from schools under its management.
………….
(4) A scheme prepared under paragraph (1)…shall provide that a pupil may be expelled from a school only by the expelling authority and shall include provision for such other matters as may be prescribed."
" 3. Without prejudice to the generality of Article 49(4) of the 1986 Order a scheme prepared under Article 49(1), (2) or (3) of that Order shall include provision for the following other matters, that is to say –
(a) a pupil may be suspended from school only by the principal;(b) an initial period of such suspension shall not exceed five school days in any one school term;(c) a pupil may be suspended from school for not more than forty five school days in any one school year;(d) where a pupil has been suspended from school, the principal shall immediately -i. give written notification of the reasons for the suspension and the period of the suspension to the parent of the pupil, to the board and to the Chairman of the Board of Governors….; andii. invite the parent of the pupil to visit the school to discuss the suspension;(e) the principal shall not extend a period of suspension except with the prior approval of the Chairman of the Board of Governors and shall in every such case give written notification of the reasons for the extension and the period of extension to the parent of the pupil, to the board…"
"Principles
3.1 A pupil may be suspended only by the principal.
3.2 An initial period of suspension shall not exceed five school days in any one school term.
3.3 A pupil may be suspended from school for not more than forty-five school days in any one school year.
3.4 The principal shall not extend a period of suspension except with the prior approval of the Chairman of the Board of Governors and shall in every such case give written notification of the reasons for the extension and the period of extension to the parent of the pupil and to the Board.
Steps to be followed prior to suspension
4.1 A school's disciplinary policy describes the standards of behaviour expected from pupils and outlines the procedures and sanction to be adopted when these guidelines are not adhered to.
4.2 The disciplinary policy will provide for the suspension of a pupil in certain circumstances. The option of suspending a pupil for a prescribed period should only be considered:
4.2.1 after a period of indiscipline – The school is required to maintain a written record of events and of the interventions of teachers, contacts with parents and any requests for external support from the Board's Educational Welfare and Educational Psychology services; and/or
4.2.2 after a serious incident of indiscipline – The school is required to have investigated and documented the incident. The investigation should include an opportunity for the pupil to be interviewed and his or her version of events given before the decision to suspend.
Instigating suspension
5.1 On taking the decision to suspend a pupil the principal must immediately notify the parents, in writing, of the suspension, its duration and the reasons for the suspension (for sample letter see Appendix 2). The letter notifying the parents of the suspension must be sent out on the day of the suspension. If the letter is sent home with the pupil this must be followed by a copy sent by 1st class post.
5.2 The letter must also invite the parents to visit the school to discuss the suspension. Should the parents accept this invitation the principal may consider it appropriate to invite other parties such as Educational Welfare, Educational Psychology or Social Services. The meeting should be chaired by the principal.
5.3 The school should keep full notes of the meeting….."
The Schools' Management powers
The background to the legislation
"Suspension should be seen as providing a breathing space to allow rational consideration, discussion and accommodation between the parties concerned, or depending on the seriousness of the problem, a search for more fundamental solutions, including, in an extreme case, the possibility of education elsewhere."
"1. the terms exclusion, suspension and expulsion, wherever they are used in statutory regulations or in local education authorities' regulations or instructions, should be authoritatively defined and differentiated in the way we have suggested;
2. every local education authority should be required to make and publish arrangements for the procedures to be followed in its area with regard to the suspension of pupils from attendance at school which satisfy the following general requirements:
i. when a pupil's behaviour over a period gives rise to a real possibility that he will have to be suspended from attendance if it continues, opportunity for consultation and discussion should be accorded to his parents;
ii. it should be clearly known by all concerned who has the power to decide that a pupil should be suspended from attendance or should remain suspended after a specified period;
iii. a time limit of not more than three days should be fixed for the duration of any suspension by the head teacher;
iv. provision should be made to avoid danger to the pupil concerned, or to others, as a result of his suspension;
v. when a decision is made to suspend a particular pupil the parents should be informed by a quick and reliable means, should be told how long the suspension is to last and should be given full particulars of the reason for it. A record should be made in a register kept specifically for the purpose within the school and available to the governing body.
vi. the governing body should be empowered to extend the suspension for a strictly limited period, specified by the local education authority for all cases, during which the interested parties should be brought together to seek an acceptable solution;
vii. if no satisfactory solution is found within this period the case should be referred to the local education authority;
viii. there should be provision for appeal by the parents to the local education authority, to be heard within a specified period, against the continuation of a suspension beyond a specified period or against any other action proposed as an alternative to the child's resumption of attendance at the school. Parents should be told how, and to whom they should appeal, when the appeal will be heard and what procedure will be followed;
3. legislative steps be taken to ensure that:
i. no registered pupil is debarred from attendance at his school, except on medical grounds, otherwise than in compliance with the suspension procedures arranged by the local education authority;
ii. no registered pupil is expelled from a school except by the decision of the local education authority responsible for maintaining the school, who should inform the governing body."
The issues
On what ground did the principal suspend the appellant: disciplinary or precautionary?
"If an action such as exclusion is taken on disciplinary grounds, it surely takes place on the basis that disciplinary grounds exist i.e. that there is a reason associated with discipline for taking the action. If a pupil is excluded or suspended in order to investigate whether an offence has been committed, this cannot, in our opinion, be said to have occurred on disciplinary grounds—it is done in order to investigate whether disciplinary grounds exist."
"Section 64 is concerned only with exclusion 'on disciplinary grounds'. The requirements all assume that it is imposed as a determinate sanction for a serious breach of discipline, rather than as an indeterminate precaution pending the resolution of what may or may not turn out to have been a serious breach of discipline."
"I also made an assessment as to the likelihood of the veracity of her complaints. In this regard, the new information which I received about allegations of assault on females in the community provided an important context to my overall assessment but was not the motivating factor behind the decision. I had previously refused to take action based upon unproven allegations of sexual assault by the [appellant] outside of school. I was also conscious of advice from the Department of Education that in circumstances where there was a conflict between the interests of children, the needs of the victim should be paramount."
Was there power to suspend the appellant?
"…we consider that it is entirely proper for a principal to suspend a pupil who may face the prospect of expulsion if the allegations made against him are substantiated for the purpose of having the case against the pupil explored. One need only instance a simple example to demonstrate the inevitability of that conclusion. If a pupil was alleged to have assaulted a teacher, it would be inconceivable that the principal should not be able to suspend the pupil pending a full investigation of the incident or a final decision as to what the ultimate punishment should be."
"It seems to me clear that the management powers of a head teacher enable him or her to keep a pupil temporarily away from the school for reasons that have nothing to do with discipline. An obvious example is that of a pupil who arrives at school one day suffering from some infectious disease. It may be necessary, in order to safeguard the health of the other pupils and the school staff, for the pupil to be sent home until he or she is no longer infectious. It is to be hoped that the pupil's parents or guardians would agree with this course. But if they did not, the head teacher…would, in my opinion, have power to impose it….It would, in my opinion, be lamentable if, by an application of sections 64-68 to situations to which they could never have been intended to apply, managers of schools found themselves placed in a statutory straightjacket and prevented from taking sensible decisions to deal with unusual situations. "
"The immense damage done to vulnerable children by indefinite, unnecessary or improperly-motivated exclusions from state schools is well-known, and none could doubt the need for tight control of the exercise of this important power."
Was the suspension lawful?
Was there a breach of article 2 of the First Protocol of the Convention?
"No person shall be denied the right to education."
"The Strasbourg jurisprudence, summarised above in paras 11-13, makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey (Application No 60856/00) (unreported), 7 February 2006). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils? In this case, attention must be focused on the school, as the only public authority the respondent sued, and (for reasons already given) on the period from 7 June 2001 to 20 January 2002."
"In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim. However, unlike the position with respect to articles 8 to 11 of the Convention, it is not bound by an exhaustive list of 'legitimate aims' under article 2 of Protocol No 1… Furthermore, a limitation will only be compatible with article 2 of Protocol No 1 if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
"(1) Each board shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who by reason of illness, expulsion or suspension from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.".
Overall conclusion
LORD PHILLIPS
Introduction
i) The Board's scheme entitled "Procedures for the Suspension and Expulsion of Pupils in Controlled Schools" ("the Disciplinary Scheme") does not govern all circumstances in which the principal of a controlled school can lawfully deny a pupil access to the school.
ii) The circumstances in which the principal suspended the appellant fell within the scope of the Disciplinary Scheme.
iii) The principal's actions did not comply with the requirements of the Disciplinary Scheme and were, in consequence, unlawful.
The scope of the Disciplinary Scheme.
"(1) Each board shall prepare a scheme specifying the procedure to be followed in relation to the suspension or expulsion of pupils from the schools under its management"
"[20] We are satisfied that school principals must have the power, in appropriate cases, to suspend pupils before investigating the full circumstances of an alleged infringement of school rules or other misbehaviour. In those circumstances suspension is not a form of punishment but merely a means of allowing the proper investigation of the allegations."
"26. (1) In addition to his statutory functions and subject to the provisions of the Education Orders and regulations, orders and directions made thereunder and to the provisions of this scheme and a financial scheme under the Education Orders and such directions as may, from time to time, be given to him by the Board of Governors, the Principal shall control the internal organisation, management and discipline of the school."
This gives the principal the power, and indeed the obligation, to exclude a pupil in circumstances that do not fall within the Disciplinary Scheme where the proper management of the school so requires. Such circumstances are not likely to arise very often in practice.
The circumstances in which the principal suspended the appellant
Failure to comply with the Disciplinary Scheme
LORD RODGER
LADY HALE
LORD BROWN