Judicial Review of Disciplinary Investigations – a last resort?

Judicial Review of Disciplinary Investigations – a last resort?

The recent case of Student A.B. (A Minor Suing by his Father and Next Friend C.D.) v The Board of Management of a Secondary School 2019 83 JR has provided an insight into the merits in applying for Judicial Review early on in an investigative process. The case dealt with a dispute between a pupil and a Secondary School Board of Management.

The High Court once again confirmed that an applicant will ordinarily be required to exhaust all statutory rights of appeal before applying to the High Court for Judicial Review.

The Judgement reaffirms the Supreme Court position set out in in Rowland -v- An Post, [2017] IESC 20 (2017) that the court should only intervene prior in an ongoing statutory process “where it was clear that the process has gone wrong; there is nothing that can be done to rectify it; and that it that it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law.”

THE FACTS

A student of a private fee-paying school in Dublin was suspended pending the outcome of an investigation in relation to an allegation of the sale of cannabis valued at €20.

In light of the very serious allegation of sale and supply of drugs on school grounds, the school viewed the students continued presence at school to be “a serious threat to the safety of students." The school’s principal recommended the expulsion of the pupil. The pupil was suspended pending a Board of Management investigation.

The student sought to have the matter Judicially Reviewed as he claimed the Principal’s actions were in breach of the requirements laid down in the school’s Code of Behaviour. The student submitted that the investigation was flawed, in breach of fair procedures and that in "recommending the sanction of expulsion", has "manifestly made the essential finding of guilt necessary to justify such a sanction".

The pupil applied for Judicial Review prior to the Board of Management’s decision and without referring the matter to the Department of Education for appeal under Section 29 of the Education Act 1998.

The section 29 appeal involves a full hearing of the case on its merits before a committee of 3 persons appointed by the Department of Education.

JUDGEMENT

Justice Simmons in the High Court refused the application for Judicial Review. Judge Simons ruled that the “Judicial Review is inappropriate in circumstances where there is an adequate alternative remedy available to the student.” The said right of Appeal is provided for under Section 29 of the Education Act. The Judge also set out that a decision to expel the student had yet to be made neither had the investigation been concluded. As such the application was premature and was denied.  

POINTS TO NOTE:

An Applicant is required to exhaust the appeal procedure available prior to Judicial Review Application.

The Judgement by Judge Simmons reaffirms the view that Judicial restraint should be exercised whereby a statutory appeal process is available to an appellant.

An early application for Judicial Review of a disciplinary process is generally only appropriate where the process has gone irremediably wrong.

ABOUT THE AUTHOR

Barry Kelleher, Solicitor, practises in Comyn Kelleher Tobin’s Litigation and Healthcare and Medical Law departments. He has recently successfully completed a Diploma in Education Law at the Law Society of Ireland.