High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Background

"I confirm that in reaching my decision to suspend the applicant, I was motivated by the need to protect the female pupil from the applicant. I was mindful of the nature of the allegations which she had made and of the sincerity of her condition. 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 was also conscious of advice from the Department of Education that in circumstances where there was conflict between the interests of children, the needs of the victim should be paramount."

The Regulations

(a) A pupil may be suspended from school only by the principal.

(b) An initial period of such suspension shall not exceed 5 school days in any one school term.

(c) A pupil may be suspended from school for not more than 45 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 suspension to the parent of the pupil, to the Board and the chairman of the Board of Governors and in the case of a pupil suspended from a Catholic maintained school to the local diocesan office of CCMS; and

(ii) invite the parent of the pupil to visit the school to discuss the suspension.

(e) The principal should not extend the 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 and in the case of a pupil suspended from a Catholic maintained school to the local diocesan office of CCMS.

The Board's Scheme

"3.1 A pupil may be suspended only by the principal.

3.2 An initial period of suspension shall not exceed 5 school days in any one school term.

3.3 A pupil may be suspended from school for not more than 45 school days in any one school year.

3.4 The principal shall not extend the 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 The school's disciplinary policy describes the standards of behaviour expected from pupils and outlines the procedures and sanctions 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 letters see appendix 2). The letter notifying the parents of the suspension must be sent out on the day of the suspension. Its letter is sent home with the pupil this must be followed by a copy sent by first 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 Schools should keep full notes of the meeting.

5.4 A copy of the letter must be sent to the chairman of the Board of Governors.

5.5 All suspensions from all grant aided schools must be notified to the Board using form S1 (see appendix 3) and accompanied by a copy of the letter sent to the parent.

5.6 A suspended pupil can only be sent home before the end of the normal school day with the agreement of the parent and only if the pupil can be delivered directly into the care of the parent or of a person previously agreed by the parents.

5.7 Work should be made available to the pupil during the suspension.

5.8 On the day of the pupil's return from suspension the pupil should report immediately to the principal or nominated teacher."

Arrangements for education otherwise than at school.

"(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.

(2) A board may make arrangements for the provision of suitable education otherwise than at school for those children over compulsory school age who-

(a) have not attained the age of 19; and

(b) 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.

(3) In determining what arrangements to make under this Article in the case of any child a board shall have regard to any guidance given from time to time by the Department."

The Applicant's Grounds for Judicial Review

(1) The school failed to comply with the regulations by –

(a) not giving the applicant notification of the reasons for the suspension; and

(b) not inviting his parents to the school to discuss the suspension.

(2) The school took an irrelevant consideration into account namely unproven allegations made about the applicant in relation to conduct outside school.

(3) The school failed to take into account relevant considerations in particular the fact that the applicant had not been involved in any incidents inside school which justifies suspension.

(4) The school and the Board have failed to provide the applicant with adequate tuition.

(5) Lack of sufficient tuition amounts to failure of the school and the Board to provide the applicant with an education.

(6) The Board is acting unlawfully and unreasonably in facilitating the applicant's exclusion from school.

(7) The Board is failing to provide the applicant with an education.

(8) Neither the school nor the Board have acted in accordance with the best interests of the child principle.

(9) Failure to provide the applicant's parents with an adequate explanation of the applicant's current status is unlawful and unfair.

(10) The conduct of the school and the Board contravenes the applicant's right to an education in Article 2 Protocol 1 of the ECHR.

(11) The school is in breach of the Board's procedures for suspension and they extended the period of suspension without giving written notification of the reasons for the extension and the period of extension to the parents.

(12) The school breached the respondent Board's procedures in that the applicant was not suspended after a period of indiscipline or after a serious incident of indiscipline.

(13) The school breached the Board's procedures by failing to maintain a written record of events.

(14) The school breached the Board's procedures by failing to investigate the incident and affording the applicant an opportunity to be interviewed and give his version of events prior to the decision to suspend.

(15) The school breached the Board's procedures by not inviting the applicant's parents to visit the school to discuss the suspension.

(16) The school breached its own regulations and disciplinary policy in that the applicant was suspended as a precautionary measure and the policy does not provide for suspension in such circumstances.

Suspensions on disciplinary grounds and on precautionary grounds.

"[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. We therefore cannot agree with the judge's comment that because suspension is a severe sanction it is always a form of punishment. Nor do we agree that it may not be used as "a mechanism to give time for further reflection on the ultimate penalty to be imposed". On the contrary, 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."

[27] In light of the decisions in M's Application and in Ali the following propositions may be stated in relation to the present case –

(i) A school principal has a power to order a precautionary suspension from school, for example during a police investigation or during a Social Services assessment or by reason of suspected infectious disease.

(ii) The Regulations apply to all suspensions. The time limit of 45 days will not be appropriate in some cases of precautionary suspensions as the school authorities cannot control investigations undertaken by police or Social Services or medical authorities or other outside agencies. However the requirements in the Regulations for the giving of reasons for suspension and extensions of suspension and invitations for parental discussions of suspensions would be appropriate requirements in all suspensions.

(iii) The Board's Scheme applies to disciplinary suspensions. Consideration might be given to the expansion of the text of the Scheme to provide appropriate requirements in the case of precautionary suspensions. In the absence of specific terms dealing with precautionary suspensions the common law rules of procedural fairness would apply to any such suspension where the outcome involved a risk of action adverse to the pupils interests. The Court may import such requirements as are required to attain procedural fairness.

(iv) The Board is entitled to provide suitable education for a pupil outside school, if so required by reason of "illness, expulsion or suspension from school or otherwise." The school considered that the applicant's status changed on 14 March 2007 when the applicant's parents agreed to arrangements for home tuition from the Board's Tuition Service under Article 86 of the 1998 Order. This was treated by the school as an alternative to precautionary suspension.

[28] In light of the above propositions the following questions arise.

First, was the suspension of the applicant a precautionary suspension or a disciplinary suspension?

Second, for the purposes of both the requirements of the Regulations and the common law requirements for procedural fairness in relation to precautionary suspensions, were the applicant's parents given the reason for the suspension and the extensions of suspension?

Third, were adequate steps taken in relation to parental discussion of the suspension?

Fourth, was there adequate disclosure to the applicant and his parents of the particulars relating to the suspension?

Fifth, was the applicant suspended from 14 March 2007 to 20 April 2007?

precautionary suspension or disciplinary suspension

- the reason for the suspension and the extensions of suspension

"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 X should not remain in school.

It must be emphasised that this not an assumption of X's guilt in these matters but instead a precautionary strategy which has been taken I believe in everyone's best interests including X's.

A further meeting will be arranged by the NEELB as soon as possible in order to consider the matter further.

In the meantime X is suspended from school for 5 days ie Thursday 8 February to Wednesday 14 February with a possible extension to follow.

Work will be made available for collection from school office by an adult after 10.00am on Thursday 8 February 2007 for X to complete during this period of suspension.

Please contact me should you wish to discuss the matter or require any further information."

invitation for parental discussion of the suspension

- disclosure of the particulars of the suspension

[37] When a decision may be taken that is adverse to a person's interests and the rules of procedural fairness apply they include "the right to know and to respond", that is the right to know the information that is adverse to the person's interests and the right of the person to make representations that the decision-maker will take into account. Depending on the circumstances the right to know the adverse case may involve disclosure of all relevant information or merely the "gist" of the information or may involve the disclosure of no information. Thus the extent of disclosure may be restricted where it is necessary to withhold details or sources for the protection of other interests.

[41] Second, in Donnelly's Application [2007] NIQB Gillen J considered refusals of firearms certificates where the applicants had been informed in general terms that the basis of the refusal had been association with members of a proscribed dissident Republican organisation. The police and the Secretary of State sought to protect the confidentiality of the information and claimed that disclosure may harm the public interest and stultify the purpose of the firearms legislation. Gillen J emphasised the statutory context of the decision making process, being the regulation of the possession of firearms. He was satisfied that there would be occasions in which the public interest must prevail over the private interest to some degree. The gist of the case had been provided to the applicants, albeit in a diluted form. It was held to be appropriate that no further information be disclosed, as such disclosure would serve to undermine the purpose of the legislation and perhaps seriously impede firearms control.

[43] The starting point in the present case must be to repeat that the applicant's suspension did not involve disciplinary procedures but rather was a precautionary suspension that concerned the assessment of the female pupil's complaint and the impact on her emotions. The school was not investigating a disciplinary offence but was awaiting the assessment from Social Services. The female pupil did not wish to be identified to the applicant because she was in fear of the applicant. The Principal had to satisfy himself that there were good grounds for believing that the complaints were genuine, that the concerns that led to the demand for confidentiality were believed to be genuine and that the complainant believed that she was at risk of significant harm from the conduct about which she was complaining. From the steps undertaken by the Principal I am satisfied that he made the necessary enquiries and satisfied himself in relation to the complaints and the threat and the harm. Further I am satisfied that the Principal had good grounds for concluding that, in response to the complaint, action by the Principal in relation to the applicant required to be considered and reasonable action was taken. The Principal also had to account to the Board for the suspension and extensions of suspension. Further I am satisfied that the lack of information about the complaint (although not the delay in furnishing the reason for the suspension as discussed above) was justified in the interests of the complainant and future complainants. In all the circumstances and taking account of the interests of all those involved the overall fairness of the process was not compromised.

- absence from school from 14 March 2007 to 20 April 2007

The adequacy of the arrangements for tuition out of school

[48] The applicant contends that the arrangements for the tuition of the applicant during his absence from school were a breach of the right to education under Article 2 of the First Protocol of the European Convention. Article 2 provides that –

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."