High Court of Ireland Decisions

1. Counsel have requested me to impose limitations on the reporting of this case. Specifically they have asked that I direct that the names of the Plaintiffs, who are aged approximately 15 and 13 years respectively, the name of their school and the name of any minor referred to in the Affidavits should be disguised or deleted.

2. Counsel have been unable to refer me to any considered authority on the point, and indeed have intimidated that such authority as does exist, suggests that I do not have jurisdiction to make such an Order. I note in particular that the then President of the High Court, Finlay P, in The State (Derek Smullen and Declan Smullen) -v- Duffy & Ors ., (1980: ILRM: 46) made no such Order and his judgment includes the names of several school children involved without any attempt at disguise. Furthermore, Kearns J in Student A and Student B -v- Dublin Secondary School , (Unreported: 25th November, 1999) indicated that the matter is not free from doubt and in that I respectfully agree with him.

3. I agree with Counsel that it would be desirable that the names of all minors involved in this case should be disguised or deleted, but in the absence of clear jurisdiction, I consider myself bound to obey the spirit as well as the letter of the imperative in the Constitution to the effect that justice shall be administered in public save in such special and limited cases as may be prescribed by law.

4. In my view, it is not for me so to prescribe. It is for the Oireachtas. I would be the first to complain if the Oireachtas attempted to pass a law curtailing or determining an issue properly before me, citing indeed the doctrine of the separation of powers, itself contained in the Constitution.

5. The other side of that coin is that I should be scrupulous and disciplined not to make a new law where there is a lacuna, as it seems to me, which I think should be filled, no matter how desirable, and I think it is indeed desirable that minors should be protected in such a case as this. It is for the law maker and not for me, however, to change the law if they think fit. Accordingly, I must decline to impose any reporting restrictions.

6. By letter dated the 25th February, 2000, the principal of the Defendant school wrote to the parents of the Plaintiffs as follows:-

7. The Plaintiffs had been suspended from school the previous week pending investigation into the relevant allegations, and in this application now before me, they seek immediate reinstatement in their school until the trial of their action, in which they claim amongst other things, a declaration that unfair procedures were adopted against them by the Defendant which involved a breach of their constitutional right to education. It is suggested that this case would not be heard for a year, so that the effect of their application, if successful, would be that the two Plaintiffs would be permitted to continue attending the Defendant’s school for the next year or so.

8. The first Plaintiff is just 15. The second, his brother, is just short of 13. The allusion in the letter which I have just quoted to the events of the 4th February, 2000 is a reference to an all night hockey marathon put on by the Defendant’s school for charity on that night. One of the other students, a 13 year old girl, told her mother that she had not spent the night at the marathon but rather had been on the GAA pitch where she got drunk and smoked cannabis which she said had been bought by the first Plaintiff and delivered to the school by the second Plaintiff. Her mother reported this allegation to the gardai who investigated the matter. This girl altered the details of her allegations at least once.

9. The previous September, the first Plaintiff had been suspended for admittedly bringing cannabis to the school and apparently sharing it with his brother (although this fact is contested) and with a number of other pupils. On that occasion, both the first named Plaintiff and his parents signed an acknowledgement in the context of the lifting by the Defendant of an indefinite suspension of the first Plaintiff. That acknowledgement reads as follows:-

10. The present allegation concerning the night of 4th February, 2000 was denied by both Plaintiffs and their parents. Accordingly, a form of investigation and hearing was adopted by the Defendant school.

11. On 7th February Mr. Sweetman, the principal, interviewed the 13 year old girl student who had told her mother of the allegations on 4th February: Mr. Sweetman says that he interviewed this girl on three separate occasions. He also interviewed four other students who were allegedly present on the GAA ground, together with nine other pupils who were mentioned in the course of these interviews. He also interviewed both the Plaintiffs and he spoke to their parents, on two occasions formally and informally on a number of occasions with the Plaintiff’s mother as she was working in the school.

12. From these interviews he formed a broad consensus to the effect that the first Plaintiff bought cannabis and arranged to have his brother deliver it to the school. This was completely denied by the two Plaintiffs and indeed there were aspects in the accounts of the students who made these allegations - particularly the fact that the girl making the complaint to the gardai changed the details of her account at least once - which have been the subject of criticism by the Plaintiffs in these proceedings.

13. In the course of his investigations, Mr. Sweetman avers that he met the parents of the Plaintiffs who indicated to him that they intended to withdraw their sons from the school and he responded that he would help them in placing the boys in an alternative school. Subsequently, however, the Plaintiffs’ parents changed their mind on the basis that to withdraw the Plaintiffs in the context of the allegations which were denied would mean that the Plaintiffs would be leaving under a cloud. The Plaintiffs’ parents sought a meeting where the accusing student and the Plaintiffs, together with their respective parents, would be present with Mr. Sweetman to thrash it all out: but this meeting was not arranged.

14. On the 17th February the Plaintiffs’ parents wrote to Mr. Sweetman advising him that having taken legal action it would not be in the best interests of the Plaintiffs to transfer them to another school and accordingly the Plaintiffs who were currently suspended would be returning to school the next morning. This was not accepted by the Defendant and instead a formal hearing into the allegation was set up before the Board of Management. Apparently six out of a total of ten members of the Board of Management attended, as did Mr. Sweetman and the Plaintiffs’ parents.

15. At this hearing Mr. Sweetman outlined the results of his investigation indicating amongst other things that both Plaintiffs denied the allegations and also indicating his view that the incident of the 4th February alone would not be sufficient to warrant his recommending the expulsion of the first Plaintiff since it was impossible to say with absolute certainty that the transfer of the cannabis had taken place on the playing pitch, having regard to the fact that several of the students interviewed had not actually seen this occur and that the only one who asserted that it did was the same one who had altered her account.

16. Mr. Sweetman also set out details of a second alleged incident which occurred in a French classroom in which the first Plaintiff was alleged to have cut cannabis for another student. The first Plaintiff also denies this incident.

17. The Plaintiffs’ parents also made a submission to the Board at the hearing and question Mr. Sweetman on his account to a certain extent. The whole hearing took approximately an hour. Then the Plaintiffs’ parents and Mr. Sweetman left. The Board deliberated for some 40 minutes thereafter and following this the Plaintiffs’ parents were informed that they would be advised of the decision within 48 hours.

18. From the point of view of the Plaintiffs’ parents, on the other side of the case, the current allegation commenced with an unannounced and unexpected visit to their home by the gardai, the relaying of the allegation, its complete and immediate denial by both Plaintiffs, with the Plaintiffs’ mother being left with an impression that this denial had been accepted by the gardai. Furthermore, the Plaintiffs’ mother records in her Affidavit that when she and her husband finally got to have a substantial meeting with Mr. Sweetman it appeared to them that he had already formed a certain point of view and that his mind was made up. This, I think, coloured the impression left with the Plaintiffs’ parents from that point forward.

19. It is important that I make two preliminary points:-

20. Counsel for the Plaintiffs set out nine different complaints about the procedures adopted. Counsel for the Defendant disagrees that there was any want of fair procedures, but did acknowledge that it might have been better if Mr. Sweetman had written down a summary of the outcome of his interviews with the several students and a statement of the precise allegations.

21. The Plaintiffs’ Counsel made the point, with some merit I think, that the Plaintiffs’ parents were only made aware of the full details of the evidence and charges at the meeting before the Defendant Board, as Mr. Sweetman went through his statement. This they say, afforded them no advance notice of these allegations nor of the evidence.

22. Making due allowance for the different circumstances between this case and those in Smullen -v- Duffy , I consider that the approach of Finlay P as he then was at pages 50-51 sets the correct standard applicable to a school investigation and determination of this sort and I quote from it as follows:-

23. Having referred to several cases the judgment proceeded:-

24. Allowing for the fact that the Smullen case involved a threat of an immediate physical danger, I nonetheless consider that in the case of a school, the requirement of maintaining discipline and authority means that the requirement of fair procedures does not demand something approaching the formality of a Courtroom situation even where expulsion, which is the ultimate sanction with very serious consequences for the person expelled, is open for consideration. I am far from persuaded, for example, that it is necessary (or desirable) to arrange for the cross-examination by lawyers of student witnesses in a case such as the present.

25. I do accept, however, that the accused should be given a reasonable opportunity to hear the case (ie charges and an account of the evidence) against him, to respond to it with evidence of his own if he wishes and to address the deciding body. I also consider that such a reasonable opportunity includes being given advance notice of the charges and the gist of the evidence upon which they are based, so as to enable a considered response to be given, if necessary after taking legal advice.

26. In the present case it is clear that the Plaintiffs’ parents did have legal advice in advance of the hearing before the Board. Because there is room for an argument, however, as to whether the charges and details of the evidence upon which they were based became known to them only in the course of the proceedings before the Board itself, I am prepared to accept that the Plaintiffs have at this hearing established a fair question to be dealt with at the trial of their case.

27. As I have already stressed, I am not now determining this question but rather I must, as in all cases seeking an interlocutory injunction, move directly to consider the balance of convenience (as it is called), noting that this is clearly a case where damages would not be an adequate remedy on either side.

28. The Plaintiffs say that unless they can return to school they may be left without education as there is no guarantee that another school will take them in. They also say that if they succeed now in being reinstated in school, there is nothing to prevent the Defendants carrying out a procedurally correct hearing and determination which could be done quite quickly. They further state that the alternative school, which is in Arklow, if it did agree to accept them, would entail more cumbersome and onerous travel arrangements.

29. The Defendants submit that it is essential, given especially the size of the school at 1500 pupils, that discipline is maintained and an Order reinstating the Plaintiffs pending the trial effectively for a year would undermine discipline in an extremely important aspect of their responsibility, namely, how to deal with any threat from drug abuse. They point out that but for the perception that the Plaintiffs would be leaving under a cloud, the Plaintiffs’ parents were prepared to move them to another school anyway, and also that the Board’s decision included a determination to assist the Plaintiffs to find another school and this, their Counsel stresses, remains the position of the Defendants to date.

30. In my judgment, the balance of convenience clearly favours the refusal of the reinstatement of the Plaintiffs which is now sought.

31. If I were to reinstate the Plaintiffs and they were to lose their action, enormous damage would have been done to the authority and policy of the Defendant school, faced with the grave responsibility of dealing with any threat from drug abuse.

32. On the other hand, if I were now to refuse the injunction and the Plaintiffs eventually win their case, they will in all probability in the meantime have had access to appropriate schooling. Neither of them is facing a watershed examination this summer so the interruption in their schooling is not as serious as it might otherwise have been. Equally, if they win their case their reputations can be vindicated. In this latter connection I would emphasise, once more, that I am not at this hearing making any findings one way or another as between the conflicting accounts of what occurred on the night of February 4th/5th last.

33. Accordingly, I refuse the injunction. There will be liberty to apply.