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THE HIGH COURT
[Record Nos. HCJ 2024/913,
HJR 2024/931,
HCJ 2024/914]
[2025] IEHC 232
BETWEEN
CHRISTINA IGWEZE, MARGARET EYONG TAKU,
AND WENDY BRIGGS
APPLICANTS
AND
DUNDALK INSTITUTE OF TECHNOLOGY
RESPONDENT
JUDGMENT of Mr Justice Barr delivered electronically on the 28th day of March 2025.
Introduction.
1. The applicants are all students pursuing undergraduate degree courses in mental health nursing (first and second applicants) and in bioscience (third applicant) at the respondent's college. They are all currently under suspension from the college pending the outcome of these proceedings.
2. In these proceedings the applicants are challenging a decision of the Appeals Committee dated 23 April 2024, which imposed the sanction of permanent expulsion from the respondent college on each of the applicants.
3. It was not contested before the Appeals Committee that the applicants had been involved in a number of fights among each other on the college grounds over two days on 30th and 31 January 2024; and that they had a further fight behind a shop in Dundalk, on the evening of 31 January 2024.
4. It was common case that none of the assaults gave rise to any injuries which required medical attention. No complaints were made to the gardai by any of the parties. No criminal proceedings arose out of the assaults.
5. While the applicants represented themselves separately before the Disciplinary Committee, they were jointly represented by a solicitor before the Appeals Committee.
6. The applicants challenge the decision of the Appeals Committee essentially on the following two grounds: that the Appeals Committee failed to carry out any proportionality assessment in relation to the appropriate sanction to apply in the circumstances; and that the Appeals Committee failed to give any or any adequate reasons for their decision to impose the most severe sanction available, being permanent expulsion from the college.
7. The essence of the respondent's response is that the issue of proportionality does not arise when considering what sanction to impose; or in the alternative, that proportionality was considered by the Appeals Committee; and secondly that the reasons for the imposition of the sanction of permanent expulsion were clearly evident from the decision when read in the context of all the documents that were before it, and in particular, having regard to the reasons given in the decision of the Disciplinary Committee from which the appeal had been taken.
8. The grounds of challenge and the respondent's response thereto, will be set out in greater detail later in the judgment.
The Events the subject matter of the Disciplinary Inquiry.
9. It is difficult to give an accurate account of what precisely happened between the parties over the two days of 30 and 31 January 2024. This is due to the fact that each of the applicants were interviewed separately by a member of the respondent's staff. Each of them gave slightly conflicting statements as to the sequence of events. It has been possible for this court to put together a broad outline of the general nature of the altercations between the parties. This has been done based on the accounts given by the various parties, but more particularly, based on the statements given by two members of staff who came upon two of the altercations that occurred on 31 January 2024.
10. It is not necessary to set out the precise assaults in great detail, due to the fact that by the time the matter came before the Appeals Committee, the parties had resolved their differences, and they were jointly represented by the same solicitor. In effect, he did not contest that his clients had been involved in a number of altercations. He did not try to justify the actions of any of his clients. The essence of the case put before the Appeals Committee was to the effect that each of the applicants accepted that they had behaved badly, they made a number of points in mitigation of their individual cases, they undertook not to engage in any such behaviour again and they placed themselves at the mercy of the Appeals Committee in relation to the sanction that should be imposed.
11. It appears that the first fight occurred around lunchtime on Tuesday, 30 January 2024. It appears that there had been some form of difficulty between the second and third applicants which resulted in a scuffle between them as they were leaving a classroom close to a canteen known as the Snack Box. It is alleged that the third applicant threw a punch and tried to fight with the first and second applicants. It is not clear what degree of fighting actually took place on this occasion.
12. The second incident occurred at approximately 13.00 hours on 31 January 2024. It is alleged by the first applicant, that as she and the second applicant were walking down a corridor, the third applicant came running down the corridor and jumped on the second applicant and proceeded to assault her. At that stage the first applicant maintains that she stepped in and became embroiled in the fight.
13. In relation to this incident, the court has had the assistance of a statement made by Mr Alan McCabe, a lecturer in the hospitality department of the respondent, who witnessed the altercation. In his statement, he stated that he heard a loud commotion outside the kitchen area. He looked out and saw a crowd of people heading towards the training kitchen.
14. He stated that when he went outside, he saw a large number of people using phones and he heard screaming. He pushed through the crowd and saw four individuals fighting. One of these was wearing a pink tracksuit and one was dressed in black. In order to stop the fight, he pulled one individual away from the fight, as she was thumping one of the others. When the individual pulled their hood down, he realised that she was female and that it had been four females that had been fighting.
15. He stated that he put this female on a chair, as she was quite shocked and he asked her if she was okay. She had a small area of bleeding around her mouth. One of the cleaning staff got her some tissues. After some time, she gave her name as being the third applicant. Mr McCabe stated that most of the large gathering had dispersed from downstairs at that stage.
16. The third incident occurred at approximately 17.00 hours on 31 January 2024. In this regard the court has been assisted by a statement made by Mr Alan Conlon, the Pastoral Care Coordinator in the respondent college. He stated that earlier in the afternoon, he had observed video footage on a phone of a fight between alleged students in the college, that had occurred in the hospitality corridor earlier that day. On the video he had seen three females engaging in violent aggressive physical behaviour. He stated that he observed what appeared to be a weave thrown to the floor from the aggression. One of the females in the video was wearing a very distinctive pink tracksuit. He also observed another female in black Nike leggings and wearing a grey hoody top, who was engaging in aggressive physical behaviour.
17. Mr Conlon stated that at approximately 17.00 hours that afternoon, while he was talking to two people in the waiting area of the health unit, he heard a lot of shouting. He observed several students running down the corridor in a stampede like fashion. He stated that he observed a female in a very distinctive pink tracksuit, who was running in the group. He followed the crowd down the stairs. There was a lot of frantic energy. He stated that he went out the back doors beside the student services office. There he observed the female in the pink tracksuit with her hood up. He stated that he approached her to ask if she was alright. He stated that she was out of breath. He had recognised her as a student at the college, as he had had previous dealings with her. He knew her to be the first named applicant, who was studying mental health nursing.
18. Mr Conlon stated that another female appeared on the road between the Faulkner building and the campus canteen. He instantly recognised the clothing that that female was wearing, as being the exact same clothing as the female in the video footage that he had seen earlier that day. He stated that he also recognised the female, as he had had previous dealings with her on the campus at an event that he had organised. He knew that she was the second applicant, who was also studying mental health nursing. He asked her what was going on. She stated that her weave had been pulled off her head. She stated that the person who had done that could not get away with it, or something to that effect. She acknowledged that she was a student nurse and should not be getting involved. He stated that she appeared to be very frantic and was breathing heavily. He stated that she and the first applicant walked away in the direction of the hospitality building.
19. There is no independent evidence in relation to the fourth incident, which occurred at approximately 19.00 hours on 31 January 2024. It took place behind a shop in Dundalk town. The only account of this fight is that contained in the interview that was held between the third applicant and Ms Linda Murphy of the respondent on 2 February 2024.
20. In that interview, the third applicant stated that at or about 19.00 hours, she and the first and second applicants met by arrangement and a fight occurred. When she was asked if anyone had been hurt during that fight, she said that one of the boys had to pull the second applicant off her, because she had stepped on her head on the concrete ground. She stated that she was the most hurt, but other than that, it was a "fair fight".
Chronology.
21. On 1 February 2024, Mr Conlon, the pastoral care coordinator, sent an email to Ms Linda Murphy, the Academic Administration and Student Affairs Manager of the respondent, in relation to what he had seen at 17.00 hours on 31 January 2024. By that time, videos were circulating on social media in relation to the fight that had taken place earlier that day.
22. Later, on 1 February 2024, Ms Murphy held separate interviews with the first and second applicants in relation to their version of events.
23. On the morning of 2 February 2024, Mr Alan McCabe gave a verbal account to Ms Murphy of what he had seen at lunchtime on 31 January 2024. Later that day, Ms Murphy held an interview with the third applicant in relation to what had happened on 30 and 31 January 2024.
24. In light of the content of the interviews held between Ms Murphy and the three applicants and having regard to the content of videos of the fights that were circulating on social media, a decision was made that it would be necessary to have a disciplinary hearing.
25. On 13 February 2024, separate disciplinary hearings were held before a Disciplinary Committee. Each of the applicants represented themselves at those hearings.
26. On 19 February 2024, a penalty notification was issued by the Disciplinary Committee to each of the applicants, informing them that they had been found guilty of breaches of the code of conduct and that the penalty imposed was permanent expulsion from the college. They were informed that they had a right of appeal.
27. On 22 February 2020 the applicants' solicitor sent a letter stating that an appeal was being lodged and that he represented all three applicants.
28. On 8 March 2024, written grounds of appeal were submitted on behalf of the applicants.
29. On 15 March 2024, the Appeals Committee made a decision allowing all three appeals to go forward for hearing. At that stage, the solicitor representing the applicants requested that the three appeals be heard together. The Appeals Committee agreed to that on 21 March 2024.
30. On 12 April 2024, a hearing was held before the Appeals Committee which dealt with all three appeals. On 23 April 2024, the decision of the Appeals Committee was handed down.
The Disciplinary Code and Disciplinary Procedures.
31. Upon enrolment in the respondent college, students are required to sign up to the Student Code of Conduct. This sets out the rules that they must comply with in relation to their behaviour while studying in the college. The code of conduct sets out what types of behaviour are regarded as constituting breaches of the code of discipline, both minor and major.
32. In relation to major offences, the following are given as examples of what would constitute such offences: criminal damage, major or repeated incidences of antisocial behaviour including racism, excessive noise, littering, nuisance behaviour, drunkenness and disorderly behaviour, or the repeated facilitation of such behaviour. It also included the following: serious breaches of examination regulations; giving false or misleading information to the Institute calculated to mislead or deceive. The definition of major offences also included physical abuse of another person.
33. The code provides that if the disciplinary officer has decided that a major offence appears to have been committed, the Disciplinary Committee will deal with the matter. The code provides that if the Disciplinary Committee decides that a student's conduct constitutes a breach of the code of student conduct, it can impose any one of several sanctions, or a combination of them, which it judges appropriate. The sanctions that are provided for under the code include the following: a fine of not more than €1000; temporary or permanent exclusion from certain Institute facilities, events or activities; suspension from the Institute for a stated period or until loss or damage is made good; being disqualified from examinations or examination sessions for a stated period; being excluded from having results, grades or assessments considered by an examination board; temporary or permanent expulsion from the Institute; deprivation or withholding of any award, prize or qualifications; imposition of voluntary work in the Institute or the community in lieu of financial penalty; and requiring a student to surrender their student identity card for a specified period. The code also provides that the Disciplinary Committee may also require the student to make an apology to any person affected by their conduct.
34. Appeals are dealt with in Appendix C to the code of conduct. It provides that the Discipline Code Appeals Committee (also known as the Appeals Committee) must hear any appeal against a decision by the Disciplinary Committee. Students have three working days from notification of the disciplinary decision in which to bring an appeal. This has to be done in writing to the academic administration and student affairs manager's office. It must state the following: the ground or reason for the appeal, the appropriate written evidence or notice of whatever new oral evidence supports the appeal.
35. The code provides that an appeal can go forward only if the student can show that there was a substantial irregularity in the making of the original decision; or that they can bring new evidence which could materially affect the decision; or that there were extenuating factors which could affect the decision and the parties to the original decision were unaware of these; or where the student can bring forward any matter which the Appeals Committee deems proper to consider.
36. The code provides that the Appeals Committee will consider the appeal submission and decide whether to allow the appeal to go forward. If the appeal is allowed to go forward, there will be an appeal hearing before the Appeals Committee. The code provides that the student or appellant shall be first to present his/her case and then the disciplinary officer (or other Institute officer) shall be heard. After that, the student or appellant will be entitled to be heard in reply. The code provides that the Appeals Committee will be entitled at its discretion to hear such evidence as it deems fit. It further provides that if the appeal is against a penalty, the Appeals Committee may uphold, set aside or vary the original decision.
The Hearing before the Appeals Committee.
37. A hearing was held before the Appeals Committee on 12 April 2024, which considered the appeals that had been lodged by the solicitor acting on behalf of each of the applicants. Prior to the hearing of the appeal, on 8 March 2024, the solicitor acting for the applicants had submitted written grounds of appeal. In these he made several points that could be regarded as challenges to the fairness of the procedure. He complained that the applicants had been interviewed by Ms Murphy without any caution having been given by her to the effect that their answers could be used as part of a disciplinary process against them, arising out of the incidents the subject matter of the investigation. Effectively, the solicitor was complaining that statements had been obtained from each of his clients without any form of formal warning or caution having been given to them in advance.
38. Also, in the written grounds of appeal, he had complained that separate hearings had been held before the Disciplinary Committee. He submitted that by hearing each of the cases separately, there was a risk that the Disciplinary Committee could have been influenced by evidence heard in one of the other cases, which would not be known to the applicant in the subsequent case.
39. It was submitted that in these circumstances, the decision that had been arrived at following an earlier disciplinary hearing should be set aside for want of fair procedures. In addition, it was submitted that it should be set aside on the basis of cumulative prejudice which arose as a result of the manner in which the statements were taken and as a result of the manner in which the hearings had been conducted separately.
40. In the grounds of appeal, it was noted that no statements of complaint had been made in relation to the matter to An Garda Síochána, nor had any prosecution been commenced in relation to it. It was pointed out that no medical evidence had been offered in support of any injuries having been sustained.
41. Finally, the solicitor concluded the statement of grounds of appeal with the following ground, which was effectively a plea in mitigation:
Without prejudice to the foregoing, the experience has been a salutary lesson to the appellant. Any disagreements which formed the basis of the complaints leading to the disciplinary proceedings have been set aside and the period since the initial suspension has given her pause for thought. She has no prior disciplinary record and is anxious to return in the knowledge that in addition to her course material, she has learnt another valuable lesson.
42. In relation to the hearing that was held before the Appeals Committee, the court is reliant upon the minutes of that hearing, which were drawn up by the notetaker. However, it is important to note that they do not constitute a transcript of the evidence, but rather a synopsis or summary of the general points made in argument and a summary of the evidence led. The hearing commenced before the Appeals Committee at 09.35 hours and concluded at 10.20 hours on 12 April 2024.
43. The minutes note that the applicants' solicitor made a verbal presentation to the Appeals Committee. He opened by stating that his three clients were enthusiastic students and were very anxious to return to study at the college. He went on to ask the Appeals Committee if they had seen the video that had been circulating on social media. They replied in the affirmative. He noted that the video had been circulated by other third parties. He queried whether any disciplinary proceedings had been brought against those persons. He made observations that the people encouraging the altercation in the video and circulating it, appeared not to have been expelled. He stated that that appeared to be unfair in the context of his clients and he had a concern regarding proportionality.
44. The solicitor mentioned the potential for racism and the setting up of the applicants for notoriety in the context of the video. The chairperson of the Appeals Committee stated that racism was not an issue for the hearing, as that matter had not been raised at any point in the appeal. The applicants' solicitor accepted that, but stated that the manner in which the video had been taken, opened up the possibility of a defamation case. He went on to note that there had been no Garda involvement and no medical reports presented in relation to any injuries from the assaults.
45. The minutes of the hearing also noted that the applicants' solicitor raised certain procedural issues, in particular, that the evidence that had been collected against his clients in the form of the interview conducted with Ms Murphy, had been carried out without any form of caution or warning having been administered to them, to the effect that their statements may be used against them in disciplinary hearings.
46. The solicitor also made complaint about the fact that the hearings had been held separately before the Disciplinary Committee and that that had the possibility of cross contamination. When asked by the chairperson for clarification regarding his allegation of contamination and if he was concerned that that might be infl uencing the appeal hearing, he replied in the negative. He advised that the taking of statements is a requirement, but must be taken in the proper manner. He put forward the view that this had not been done in relation to the statements obtained from his clients.
47. The applicants' solicitor stated that the incidents had happened and that they were regretted by all concerned. Nevertheless, he stated that his criticisms of the disciplinary procedure still stood.
48. The minutes record that the applicants' solicitor then went on to make what could be regarded as a plea in mitigation. He stated that he had had a very difficult conversation with all three clients. From a positive perspective, there was academic hope for each of them. He stated that their academic record was reasonable in the main. One of the applicants had had to repeat one exam during the course of her study. He stated that their ambition was to return to study in the college. When asked as to whether if this incident had not happened, would they have come to the attention of the college authorities; the solicitor stated that he could not answer that question, but he felt that it would have been unlikely. He went on to state that his clients knew that what they have done was a foolish act, but he noted that o ther people were also responsible. The solicitor advised that if the decision was to readmit his clients to their courses, the applicants would be willing to catch up on classwork that had been missed. Work experience was a different matter, but their overall ambition was to return to study in the college.
49. The minutes of the appeal hearing then go on to note the statement made by Ms Murphy to the Appeals Committee regarding the taking of the statements from the individual applicants. She stated that this had been done entirely voluntarily. In addition, no complaint had been made about the accuracy of her memorandum of interview in each case.
50. The minutes then record that the chair of the Disciplinary Committee ga ve evidence to the Appeals Committee in relation to the hearing that he had conducted. He stated that in advance of that hearing, each of the applicants had been given the relevant documents, being the statements from Mr McCabe and Mr Conlon and the referral document from Ms Murphy. He gave a synopsis of the procedure that had been carried out at the hearing before them. He stated that the Disciplinary Committee had considered each case and concluded that each student had breached the code of conduct. On 19 February 2024, the penalty notifications were issued to each of the students.
51. The minutes go on to record that the applicants' solicitor again noted that there was no medical verification of the injuries, nor was there any evidence of any complaint having been made to the gardaí. Ms Murphy referred the solicitor to the notes from the meeting relating to the injuries suffered by the third applicant and also to the fourth altercation where one of the students stated that she had had her head stamped on. The applicants' solicitor stated that he was not aware of the incident regarding any kick to the head of the student. The applicants' solicitor stated that his clients had not seen that evidence. However, Ms Murphy confirmed that it had been provided to them before the disciplinary hearing in her notes of the interviews.
52. There was then some discussion in relation to the hearing before the Disciplinary Committee. Ms Murphy again stated that the procedure that had been followed was provided for under the code. The students had been furnished with a copy of her memoranda of interview. They had not objected to its accuracy, nor to the fact that the interview had been held voluntarily between each student and Ms Murphy.
53. The final portion of the minutes refers to the submission made by the applicants' solicitor. It was in the following terms:
"Mr MacQuill's final remarks related to the proportionality of the process and timing. He also commented that it has been a long eight weeks and has been long for the students waiting to come to appeal. SF confirmed timing was slightly longer due to academic holidays. Mr MacQuill accepted the information regarding timings."
Decision of the Appeals Committee.
54. On 23 April 2024, the Appeals Committee delivered its decision in all three appeals. This decision was communicated to the solicitor acting for the applicants.
55. The decision began by stating that the appeal hearing had been conducted in accordance with the code of conduct and the disciplinary procedures set out therein. It stated that the appeal hearing involved a review of the decision by the Disciplinary Committee on 19 February 2024 to expel his clients from the Institute and to impose a full ban from all associated campus buildings and grounds. The decision went on to state that the applicants had failed to demonstrate any substantial irregularity in the making of the Disciplinary Committee's decision for the reasons set out in their decision below.
56. The decision then went on to deal with the procedural grounds of appeal that had been raised by the solicitor acting for the applicants. It is not necessary to set out this portion of the decision in any detail, as there is no appeal against the rulings made by the Appeals Committee on these preliminary points. First, the Appeals Committee rejected the assertion that the statements taken by Ms Murphy from the three students were irregular or tainted by virtue of the fact that no caution or warning had been given by Ms Murphy to the students in advance of conducting her interview with them. The committee was satisfied that the three students had each voluntarily given interviews to Ms Murphy, where they had set out their version of events. The Appeals Committee noted that none of the students took issue with the content of the memorandum of interview that had been drawn up by Ms Murphy following the interview, which memorandum had been given to the applicants in advance of the disciplinary hearing. The Appeals Committee further noted that during the appeal hearing, each of the students had acknowledged their conduct and at no point took any issue with any of the facts that had been set out before the Disciplinary Committee in relation to the various altercations that had been recorded.
57. The Appeals Committee went on to note that the written statements as provided by Mr McCabe and Mr Conlon, which were made available to the applicants and which were put to them in the course of the disciplinary hearing, were not seriously contradicted by any of the students.
58. The Appeals Committee found that the disciplinary procedure culminating in the hearing before the Disciplinary Committee had been conducted fairly. They were satisfied that each of the applicants had been given notice of the incidents that were the subject matter of the investigation and had been given a full opportunity to put their version of events and to question the other evidence that was put before the Disciplinary Committee. Accordingly, the Appeals Committee found that the disciplinary hearing in respect of each of the applicants had been conducted fairly.
59. The Appeals Committee then went on to deal with the issue of proportionality. It set out its findings in the following terms:
"In response to your clients' argument regarding the proportionality of the sanction imposed relative to those students who may have recorded and circulated video images of the altercation, we are satisfied that this argument is insufficient to vary the findings of the discipline committee. While the actions of those parties who recorded the altercations involving your client are regrettable, they do not alter the significance of the series of violent and aggressive incidents which took place both within and outside of the Institute's premises. Such events, some of which were acknowledged as premeditated, remain undisputed by your client without any evidence to the contrary being presented at appeal.
In addition, the Appeals Committee finds that an argument of proportionality is not appropriate in this context, as any issue relating to the individuals or individuals who took video footage of the incident(s) is entirely separate from and unrelated to the matters with which your client had to contend throughout this process."
60. The decision of the Appeals Committee then went on to deal with the argument that had been raised in relation to the fact that separate hearings had been held in respect of each of the students before the Disciplinary Committee. The Appeals Committee held that there was no substance in this point. They held that it was entirely appropriate and in accordance with the obligations of confidentiality in the disciplinary process, that the hearings in relation to each of the students were held separately before the Disciplinary Committee.
61. The decision of the Appeals Committee concluded in the following manner:
"Finally, the Appeals Committee is satisfied that nothing turns on the presence or otherwise of any medically noted injuries as a result of the altercations the subject matter of these proceedings.
In the circumstances, the Appeals Committee is satisfied to uphold the decision and sanction imposed by the Disciplinary Committee on 19 February 2024."
Decision and Conclusions.
62. The jurisdiction of this Court when considering a challenge by way of judicial review of the decision of an appeals committee was considered by Charleton J in City of Waterford VEC v Secretary General of the Department of Education and Science [2011] IEHC 278, where he stated as follows at paragraph 9:
"The legal principles applicable to a judicial review of this kind can be concisely stated. The High Court, having a supervisory jurisdiction over administrative and judicial tribunals, is not entitled to engage in a usurpation of any fact-finding power which is conferred on these tribunals or to otherwise take on their function. Instead, any decision as to the merits may only be reviewed, if of its nature '(it) is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense': see Meadows v Minister for Justice [2010] 2 IR 701 at 827 per Fennelly J; see further Efe v MJELR [2011] IEHC 214, (unreported, High Court, Hogan J, 7 June 2011) which comments on the proportionality element of such an analysis. The detachment of the High Court from the decision under review is emphasised by the inability of the High Court, even on quashing the decision for that reason, to substitute its own view. Instead, the decision must be returned to the appropriate tribunal so that it may be considered afresh. "
63. The court is satisfied that in this case, there are four key questions which the court must determine, as follows: What is the nature and role of the Appeals Committee? Was the Appeals Committee required to consider proportionality when dealing with sanction? If so, did the Appeals Committee consider the principle of proportionality when deciding on sanction? If the court holds that they did consider proportionality, is the decision of the Appeals Committee adequately reasoned in the legal sense?
64. The first issue is as to the nature of the appeal from the decision of the Disciplinary Committee to the Appeals Committee. In Board of Management of St Molaga's National School v The Secretary General of the Department of Education and Science [2011] 1 IR 362, the Supreme Court had to consider the nature of an appeal under s.29 of the Education Act 1998. In determining that the appeal provided for under that section was a full de novo appeal, the court had regard to the fact that the words "appeal" and "appeals" were dominant in the statutory provision. Furthermore, the decision-making body was called and "Appeals Committee". The court held that the wording in the relevant section was very clear. It held that the term "appeal" is not obscure. It has a plain meaning in relation to procedures. The court stated that the concept of an appeal was a full hearing on the merits with the jurisdiction to make a determination on the issues raised. The court held that such an appeal went beyond a review of the decision-making process.
65. The court went on to state that as the words of the section were clear, with a plain meaning, they should be so construed. They held that the literal meaning was clear, unambiguous and not absurd. The court held that the appeals process provided for under the section enabled the Appeals Committee to have a full hearing on the matter and if so determined, to replace its judgment on the matter for that of the Board and to make such recommendation as it considered appropriate. Thus, the court held that the jurisdiction of the Appeals Committee under the relevant section, was not limited to a review of the lawfulness or reasonableness of a decision of the Board of Management.
66. These principles were applied by Allen J (then sitting as a judge of the High Court), in FD (a Minor) v Minister for Education and Skills [2019] IEHC 643, which was a challenge to the decision of an Appeals Committee which had held that the decision to expel the student which had been reached by the lower tribunal, had been reasonable.
67. The court noted that in the St Molaga's case the High Court had found that the function of an appeals committee was limited to assessing whether the decision of the Board of Management had been reasonable. However, the Supreme Court held that that was the wrong test. The issue which the Appeals Committee had to decide was whether the boy should be permanently excluded from the school. It was held that it was irrelevant whether the decision of the Board of Management was right or wrong, or reasonable or unreasonable. The judge acknowledged that he was not to take a word or phrase out of the context of the decision as a whole, but stated that he could not find elsewhere in the decision anything to indicate that the Appeals Committee went beyond a consideration of the reasonableness of the Board's decision.
68. The court found that in substance and in terms, the decision of the Appeals Committee was that the decision of the Board of Management to permanently exclude the applicant was reasonable. The court stated that that was the wrong test. The committee ought to have considered and decided, whether in its view, the exclusion of the applicant from the school was warranted.
69. Under the applicable code of conduct in the present case, appeals are dealt with at Appendix C thereto. This provides that the appeal shall be heard before a body known as the Discipline Code Appeals Committee, or for short, the Appeals Committee. Clause C4 thereof provides as follows:
"In an appeal hearing, the student or appellant shall be first to present his/her case, and then the disciplinary officer (or other Institute officer) shall be heard. After this the student or appellant is entitled to be heard in reply. The Appeals Committee will be entitled, at its discretion, to hear such evidence as it deems fit. If the appeal is against a penalty the Appeals Committee may uphold, set aside or vary the original decision. If the offence was a minor one, the revised penalty may exceed the maximum penalty normally to be imposed in such cases. "
70. The court is satisfied that having regard to the wording of the code of conduct in relation to the hearing of appeals before the Appeals Committee, that the appeal provided for therein has the characteristics of a full de novo appeal as identified in the St Molaga's case. Accordingly, I hold that the appeal to the Appeals Committee was a full de novo appeal.
71. Having regard to the wording of the decision of the Appeals Committee, which refers to their carrying out a review of the decision of the disciplinary committee, and in particular, having regard to the content of the last paragraph of the decision of the Appeals Committee, where the committee stated that it was "Satisfied to uphold the decision and sanction imposed by the Disciplinary Committee on 19 February 2024"; the court finds that the Appeals Committee fell into error and applied the wrong test when determining the appeals brought by the applicants. On this basis alone, the decision must be set aside.
72. The second question to be determined is whether the Appeals Committee was required to carry out a proportionality analysis when deciding on the appropriate sanction to impose on the applicants.
73. The court is satisfied that on a proper interpretation of the authorities, there was an obligation on the Appeals Committee to consider the issue of proportionality of the sanction, when deciding what sanction to impose. Support for that proposition is to be found in the judgment of Keane J (as he then was) in Radio Limerick One Limited v Independent Radio and Television [1997] 2 IR 29, where the court had to consider whether the disparity between the breach of condition in that case and the sanction imposed for the breach of that condition, was so disproportionate, as to render the decision unreasonable. In the course of his judgment, Keane J stated as follows:
"Thus in the present case, if the amount of advertising in the applicant's programs had on two widely separated occasions exceeded the permitted statutory limit for a few seconds, the permanent revocation of the license with all that was entailed for the livelihood of those involved, would clearly be a reaction so disproportionate as to justify the court in setting it aside on the grounds of manifest unreasonableness."
74. In Meadows v Minister for Justice, the Supreme Court made it clear that the issue of proportionality was part of the test of reasonableness or rationality of the decision in the legal sense: see dicta of Murray CJ at paras. 57 & 58; dicta of Denham J at para. 141; and dicta of Fennelly J at para. 445.
75. In argument at the bar, counsel for the respondent argued that proportionality only arises in relation to the question of whether there has been an unreasonable encroachment on existing rights, which is greater than that required for the attainment of a statutory or other legal imperative. While that is one of the aspects of proportionality, it is not the only situation in which the issue of proportionality can arise.
76. In the Meadows case, Murray CJ cited with approval, the portion of the judgment of Keane J in the Radio Limerick case cited above. Fennelly J gave the following example of a lack of proportionality at paragraph 445:
"At one level all this is no more than semantics; what is irrational or unreasonable depends on the subject matter and the context. Following the colloquial adage that a sledgehammer is not necessary to crack a nut, a savage sanction should not be applied for a trivial offence."
77. The issue of proportionality can arise in a number of different situations. The court is satisfied that the requirement of fairness in the process requires that where a decision-maker must choose one of a number of possible sanctions for a breach of professional standards, or as in this case, for a breach of discipline, the requirements of fairness require that the decision-maker engage in a proportionality assessment before deciding what sanction to impose.
78. There are two aspects to the proportionality assessment: first, the decision-maker must consider the aggravating and mitigating circumstances in the case. In other words, the decision-maker does not simply say that because a particular breach of discipline has been proven, that a particular sanction is automatically imposed. Fairness requires that the sanction should be appropriate to the circumstances of the case. That involves some analysis of the facts that are aggravating and the circumstances that go towards mitigation. There is nothing novel in this. It is done every day of the week in the criminal courts. It is also done by regulatory bodies supervising the professions.
79. The second aspect of the proportionality assessment is that the decision-maker must have regard to the range of possible sanctions in arriving at a decision as to which sanction, or combination of sanctions, will best achieve the desired outcome; be it to punish the offender; to deter the repetition of similar conduct in the future; to preserve the safety of students and staff in the educational institution; and to preserve the orderly running of the institution
80. That such a proportionality assessment must be carried out, was made clear in Kelly v Board of Management of St Joseph's National Schoo l [2013] IEHC 392, where the court criticised the decision-maker for not reading the particular circular as a whole and for not considering the fact that the circular envisaged that even what were termed "Stage IV proceedings" did not necessarily require a heavy sanction. Furthermore, the decision-maker was criticised for not considering the financial consequences to the applicant if a particular sanction was imposed. Their explanation for failing to consider that aspect, which was to the effect that they had not been asked to consider it, was held to be a failure to understand the responsibility that they had to treat the applicant fairly and proportionately: see para 164.
81. The court holds that it was incumbent on the Appeals Committee in this case to carry out a proportionality assessment of the sanctions that were available to it, before imposing any sanction on the applicants.
82. The third question for determination is: did the Appeals Committee carry out any proportionality analysis? The court is satisfied having regard to the content of the decision of the Appeals Committee, that they did not carry out their own proportionality analysis of the question of sanction.
83. In the decision of the Appeals Committee, they dealt with a discrete issue of proportionality that had been raised by the applicants' solicitor. It was to the effect that there was a lack of proportionality between the sanction imposed on the applicants, having regard to the fact that no such sanction had been imposed on those who had encouraged the altercations between the applicants and had videoed same and posted them on social media. The Appeals Committee held that that argument was without substance. They held that the issues of the breaches of discipline by the applicants, which were admitted for the purposes of the appeal, and the issue of the culpability of those who had taken videos of the altercations and posted them on social media, were distinct issues. The Appeals Committee were entitled to come to that conclusion.
84. The Appeals Committee did not carry out any proportionality assessment of the appropriate sanction. They did not mention any of the mitigating factors put before them by the applicants' solicitor, such as their prior unblemished disciplinary record; their generally good academic record; or the fact that the three young women had made up their differences; or that their stated desire was to continue with their studies in the college.
85. The Appeals Committee did not refer to the range of sanctions that were available, nor to the fact that they could be combined as a sanction. They did not say why the ultimate sanction of expulsion was appropriate in each case. In particular, having regard to the fact that while the applicants were not contesting the incidents, their accounts could be seen as pointing to differing levels of culpability. There was no assessment of any differing degrees of culpability on the part of the individual appellants.
86. In these circumstances, the court finds that there was no separate proportionality assessment of the issue of sanction carried out by the Appeals Committee.
87. In so doing, the Appeals Committee acted in error. It was incumbent on them to carry out their own proportionality assessment of the appropriateness of the sanction of expulsion in all the circumstances of the case, having regard to the aggravating and mitigating factors in the case and also having regard to the range of sanctions available to the Appeals Committee. That was not done.
88. The fourth question concerns the adequacy of reasons given by the Appeals Committee in its decision. Having dealt with the issues that had been raised by the applicants' solicitor by way of judicial review type arguments, and having dealt with the discrete issue of proportionality that had been raised by the solicitor concerning the lack of any sanction having been imposed on those who had videoed the altercations and posted them on social media, the Appeals Committee proceeded to state that it was satisfied that nothing turned on the absence or otherwise of any medically noted injuries as a result of the altercations the subject matter of the proceedings. It then dealt with the issue of sanction in one sentence as follows: "In the circumstances, the Appeals Committee is satisfied to uphold the decision and sanction imposed by the Disciplinary Committee on 19 February 2024".
89. The rationale behind the duty on a decision-maker to give adequate reasons for his decision has been set out in many cases. It was summarised by Clarke CJ in Connelly v An Bord Pleanála [2021] 2 IR 752 in the following way:
6.15 Therefore, it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a decision maker. First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to alow a court hearing an appeal from or reviewing a decision to actualy engage properly in such an appeal or review.
90. The content of this duty to give adequate reasons, was supplemented by the decision in Baltz v An Bord Pleanála [2019] IESC 90, where it was held that adequate reasons must also involve the decision showing that the material submissions made by the parties had been considered by the decision-maker when making his/her decision.
91. In the present case, the sanction imposed on each applicant, was expulsion. Two of the applicants were studying for a degree in mental health nursing. When one considers the obligations at law that rest on a prospective employer who is involved in the provision of mental health services, the fact that these applicants were expelled for fighting could mean that they would never gain employment in the field of mental health nursing.
92. The person or entity providing mental health services must take great care when employing nursing staff. This is because the nursing staff will have to care for people who may be extremely vulnerable. They may be infants, adolescents, or be very elderly. They will, by definition, have some form of mental health difficulty, be that an organic brain disease; an acquired brain injury; or a mood disorder. Those difficulties may vary on a scale from mild to severe. It is possible that some patients will exhibit violent and aggressive behaviour from time to time. As part of the duty of care owed by the employer to the patients in its care, is the duty to take care when employing staff to work in the hospital or other care facility.
93. Where a prospective employee has to disclose on their CV that they were expelled from a third level institution for fighting, I consider it highly likely that they would face the greatest difficulty in persuading a prospective employer that they should be given employment as a mental health nurse; particularly as they would be competing against other candidates who did not have that blemish on their CV. Thus, it is not fanciful conjecture to say that the imposition of expulsion on two of the applicants will mean that they will probably never work as mental health nurses. The consequences for these applicants of the imposition of the penalty of expulsion, has not been addressed in the decision of the Appeals Committee.
94. At the very least, the applicants were entitled to know why this ultimate sanction was thought to be the only appropriate sanction; in particular, having regard to the consequences of the imposition of such a sanction on them.
95. In the present case, the applicants do not know what lesser sanctions, or combinations of them, were considered by the Appeals Committee. They do not know why the most severe sanction was thought to be the only appropriate sanction in their case. They do not know what consideration was given by the Appeals Committee to the mitigating factors in their cases, such as: their generally good academic record; the lack of any previous disciplinary issues; that there were no serious injuries requiring medical treatment; that no weapons were involved in the assaults; and that no report was made to the gardai by any of the participants arising out of the incidents. They do not know what consideration, if any, was given to these matters, nor to the enormous consequences for two of the applicants if expulsion was imposed.
96. Not only did the Appeals Committee fail to give any adequate reasons for their decision on sanction, it appears that they are of the view that they did not have to provide any such reasons; because at para. 13.3 of the statement of opposition it was pleaded "It is denied that the Appeals Committee was required to provide reasons for concluding that the expulsion sanction was a proportionate sanction in all of the circumstances". That is a most extraordinary statement. It flies directly in the face of all the legal authorities on the duty to give reasons.
97. In argument at the bar, counsel for the respondent submitted that the reasons for the imposition of the sanction need not be in the decision, if they are readily apparent from some other document. That may be possible, but only if the decision-maker points to a document in which the reasons can clearly be found. The Appeals Committee did not expressly refer to the reasons given in the decision of the Disciplinary Committee. They merely adopted that decision. Given the enormous consequences of the imposition of the sanction of expulsion, that bald statement did not constitute anything like the giving of adequate reasons.
98. I hold that the decision must be struck down for failure to give adequate reasons for the imposition of the sanction of expulsion.
Proposed order.
99. Having regard to the findings made by the court in its judgment herein, the court would propose that the appropriate order is an order of certiorari in respect of the decision of the Appeals Committee dated 23 April 2024; with an order remitting the matter back for further consideration by a newly constituted Appeals Committee.
100. As this judgment has been delivered electronically, the parties shall have one week within which to furnish brief written submissions on the terms of the final order and on costs and on any other matters that may arise. The matter will be listed for mention at 10.30 hours on 10 April 2025 for the purpose of making final orders.