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On Monday and Tuesday, 19 and 20 April 2010, the Supreme Court will hear the Northern Ireland appeal In the matter of an Application by ‘JR17’ for Judicial Review. The appeal will be heard by a bench consisting of Lords Phillips and Rodger, Lady Hale, Lord Brown and, sitting on his first appeal, the new twelfth justice, appearing on the list as “Sir John Dyson SCJ”.   He has not been given the actual or courtesy title “Lord” – we would have thought that this was a necessary feature of the new court being separate from the House of Lords although Joshua Rozenberg argues that it is a surprising decision by the Lord Chancellor, Jack Straw.

The appeal is against a decision of the Court of Appeal in Northern Ireland ([2009] NICA 14).  The Court included the then Lord Chief Justice of Northern Ireland and now Supreme Court Justice, Lord Kerr.  The Court’s Case Details can be found here.

The case concerns the suspension of a school student as a result of allegations of indecent assault, threatening behaviour and aggravated assaults on females (all of which were said to have taken place outside school).   The complainant, A, made it clear that she did not want her allegations to be dealt with as a formal complaint. On 7 February 2007 it was decided to suspend the appellant from school “as a precautionary measure” while an assessment of the allegations. Neither the appellant nor his guardians were informed of the detail of the allegations. The suspension was extended on three occasions and home tuition was provided.   His suspension was ended on 20 April 2007.  The appellant commenced judicial review proceedings. The appplication was dismissed by the judge at first instance ([2007] NIQB 107) and by the Court of Appeal ([2009] NICA 14).

The appellant argued that there was no legal authority to suspend him for as a “precautionary measure”.  The Court of Appeal held that the general management powers available to school authorities must be seen to include a power to suspend as a precautionary measure in appropriate circumstances, also relying in part on the decision of the House of Lords in Ali v Head Teachers and Governors of Lord Grey School [2006] UKHL 14.  The Court considered the different views expressed by Lady Hale and Lord Scott and concluded by agreeing with the latter that “a head teacher must have, within his management powers, the right to suspend a pupil as a precautionary measure” [23].

The Court rejected the applicant’s contention the suspension was a disciplinary, rather than a precautionary measure and held that the applicant was sufficiently aware of the reasons for his suspension.  Overall, the court held that the school took the only option which was realistically available

The circumstances that the school faced in this case did not lend themselves to a conventional investigation of the truth of the allegations made. A had signalled her clear wish that her report should not be treated as a complaint. She did not even want the appellant to know that she had made the report. Yet the principal had been given clear reasons to conclude that this was an extremely disturbing and potentially dangerous situation for her. What, then, was the school to do? It could only obtain an account from the appellant if it disregarded A’s plea that he should not be told about the complaint. It could only properly investigate if it compelled her to provide information beyond the bare report that she had given.

It seems to us that the only option not available to the principal was to do nothing about the report that A had made. He had to act to protect her interests without unduly affecting the appellant’s education. No perfect solution was possible. Some action to protect both pupils’ interests was required. The course chosen by the principal – if not the only one realistically available – was at least defensible as a practical means of protecting A and ensuring that the appellant’s education did not suffer beyond that which was inevitable from his suspension. [35-36]

Permission to appeal was granted by Lord Rodger, Lady Hale and Lord Brown on 9 December 2009.  The Northern Ireland Commissioner for Children and Young People has been given permission to intervene in the appeal.

The case has an number of unsatisfactory features.  The applicant was suspended from school for a period of 3 months on the basis of allegations which were not made clear to him and were not the subject of investigation.   Although a short “precautionary” suspension might be justified as a matter of “management” it is difficult to see why there should be a substantial disruption because of an allegation which was not formally made and therefore not capable of being formally investigated.   The “fairness” and “balance” issues were not given detailed consideration by the Court of Appeal and it will be interesting to see how they are approached by the Supreme Court.