In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland)

The Supreme Court allowed the appellant's appeal and declared that his suspension from 7 February to 20 April 2007 was unlawful. The court held that the Board's Scheme for suspension and expulsion (prepared under Article 49 of the Education and Libraries (Northern Ireland) Order 1986) defines exhaustively the circumstances in which a pupil may be suspended for disciplinary reasons and prescribes mandatory procedural steps (notably para 4.2.2 requiring an investigation including an opportunity for the pupil to be interviewed, and para 5.1 requiring immediate written reasons to parents).

The principal's decision was within the disciplinary context of the Scheme but breached those mandatory provisions: the pupil was not given an opportunity to give his version before suspension and the immediate notification did not state adequate reasons. The Court rejected an implied general power to suspend on 'precautionary' grounds outside the Scheme and held that, although the suspension was unlawful under domestic law, there was no breach of Article 2 of Protocol No 1 to the European Convention on Human Rights because alternative state-provided educational arrangements were available.

Background and parties: The appellant, a year 12 pupil, was suspended from his controlled school in County Antrim initially for five school days on 7 February 2007 and repeatedly thereafter, with home tuition provided from 14 March. He sought judicial review of the principal’s decision. The Board and school authorities were respondents. Earlier decisions: Weatherup J dismissed the claim; the Court of Appeal dismissed the appeal ([2009] NICA 14). The matter came on appeal to the Supreme Court ([2010] UKSC 27).

Nature of the claim / relief sought: Judicial review seeking a declaration that the principal’s suspension was unlawful and that the appellant’s rights under Article 2 of the First Protocol to the European Convention on Human Rights had been violated.

Issues framed by the court:

• On what ground did the principal suspend the appellant (disciplinary or precautionary)?
• If on that ground, did the principal have power to suspend?
• If he had power, was the power lawfully exercised (compliance with the Scheme and procedural fairness)?
• Was there a breach of Article 2 of Protocol No 1 (right to education)?

Court’s reasoning:

• Scope of the Scheme: The court held that the Scheme prepared under Article 49 was intended to be exhaustive for disciplinary suspension/expulsion and to implement the policy background in the Taylor and Astin Reports. If temporary exclusion during investigation is to be permitted, the Scheme must provide for it expressly.
• Characterisation: Although the principal described the suspension as precautionary, the court found it was taken in a disciplinary context and was closely linked to the principal’s view that there was at least a prima facie case of indiscipline. Thus the suspension fell within the Scheme’s scope.
• Lawful exercise: Para 4.2.2 required an investigation that must include an opportunity for the pupil to be interviewed prior to suspension; para 5.1 required immediate written reasons to parents. Both requirements were breached: the pupil was not given the chance to give his version and the initial letter did not adequately state reasons. Those breaches fundamentally undermined the suspension.
• Precautionary power: The court rejected importing an implied precautionary suspension power outside the Scheme. If the Board wished principals to have such a power it should amend the Scheme and regulate its exercise.
• Convention claim: The court accepted that although domestic law was breached, the appellant was not denied effective access to state-provided educational facilities. Alternative arrangements (work made available, home tuition and marking the pupil as educated off site) meant there was no violation of Article 2 of Protocol No 1.

Outcome: Appeal allowed: declaration that the suspension was unlawful (7 February to 20 April 2007); no breach of Article 2 of Protocol No 1.

Appeal allowed. The Court declared that the appellant was unlawfully suspended from 7 February until 20 April 2007 because the Board’s Scheme (made under Article 49 of the Education and Libraries (Northern Ireland) Order 1986) defines exhaustively the circumstances for disciplinary suspension and prescribes mandatory procedures (notably para 4.2.2 and para 5.1) which were breached. The Court refused to imply a general power to suspend on precautionary grounds outside the Scheme. The Court also held there was no breach of Article 2 of the First Protocol because state-provided alternative educational arrangements were available.

Claim dismissed at first instance by Weatherup J; appeal dismissed by the Court of Appeal (reported as [2009] NICA 14). Further appeal to the Supreme Court which allowed the appeal ([2010] UKSC 27).