John Temple: Is there justice for students denied their Leaving Cert results?
Barrister John Temple examines the appeals process for those who have been denied their Leaving Cert results.
Some 59,000 students received their leaving certificate results last week. For those who have studied for months and prepared through exhausting long hours for any examination, there is at last a result which allows those students to progress onto the next chapter of their life.
Some 71 students were denied or refused their results by the State Examinations Commission (SEC) on alleged breaches and suspicion of cheating.
For those students, there is no progression to the next stage of their lives. They are effectively left wondering what will become of their future. The SEC informs students that penalties are applied in line with Rule 76 of the Rules and Programmes for Secondary Schools and that it will consider whether the incident represents an offence under Section 52 of the Education Act 2002.
The Rules and Programmes for Secondary Schools is not a circular, nor is it legislation. It appears to be more policy from the Department of Education. The Rules contain information and guidance for both students of the Junior Certificate and the Leaving Certificate examinations.
Rule 65 provides what a student or candidate must not bring or have in their possession during the examination; such items include mobile telephones, a memory bank or a prohibited calculator. Rule 67 states a list of prohibited behaviours while in the examination hall, which include communications or attempted communications to or from another candidate. Rule 75 provides that candidates may be “expelled from the examination hall if his / her behaviour is such as to jeopardise the successful conduct of the examination”.
A candidate information booklet which is available on the SEC website states:
“if you violate the rules in an invigilated examination (such as a written examination, an oral test or a practical test) you are likely to lose the result for the entire subject. Note though that more serious penalties can apply, depending on the gravity of the offence and these include withholding all the results of the examination (the entire Leaving Certificate) and / or debarment from entering future state examinations”
What Rule 76 sets out is that where the Commission forms the view that there has been a violation of the rules, it should inform the Department and it will be for the Minister to decide the penalty to be applied.
Constitutional justice and natural justice
What is concerning here is that there is no mention of an investigation whereby the candidate would be afforded the protections of natural justice and fair procedures, including the candidate’s Constitutional rights.
Article 40.3.20 of the Constitution provides that: “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen”.
The candidate is assumed to be guilty of the charge and is automatically subject to a penalty of having their Leaving Certificate withheld without the candidate having been informed that such result was been withheld, or being afforded an oral hearing, thereby breaching the principles of audi alteram partem (let the other side be heard).
In Kiely v Minister for Social Welfare  I.R. 267, Hency J held: “Natural justice is not observed if the scales of justice are titled against one side all through the proceedings”.
In delivering his judgment, Hency J continued:
“Where essential facts are in controversy a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, therefore, effectively unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing. It is contrary to natural justice”
The importance of such a process is that the decision maker, be it within the SEC or the Minister, does not appear to contain the elements of any fair hearing.
In Flanagan v University College Dublin  I.R. 724, Baron J considered the right to a fair hearing, where he stated:
“The applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the alleged offence. She should equally have been allowed to be represented by someone of her choice, and should have been informed in sufficient time to enable her to prepare her defence of such right and any other rights given to her by the rules governing the procedure of the disciplinary tribunal. At the hearing itself, she should have been able to hear the evidence against her, to challenge that evidence on cross-examination, and to present her own evidence.”
The wording of Rule 76 in the Rules and Programmes for Secondary Schools states that “where the Commission is of the view that there has been a violation” – however, the rule fails to set out how that view was reached.
How was the decision reached? Was it an investigation report, a complaint made, a violation of Rule 75? No one knows. How can a student assess the lawfulness of the decision without knowing something about the decision making process itself? If the candidate is not made aware of the reasons behind such a decision, this could give rise to a judicial review.
In Rawson v Minister for Defence  IESC 26, the Supreme Court observed the following:
“Where the possible basis for challenge is founded on an absence of the correct question being addressed, incorrect considerations being applied or an irrational decision, any party wishing to assess the lawfulness of the decision will need to know something about the decision making process itself”
Delivering its judgment, the Supreme Court stated:
“However, if a person affected does not have any sufficient information as to the question which the decision maker actually addressed then it surely follows that that person’s constitutional right of access to the courts to have the legality of the relevant administrative decision judicially reviewed is likely to be, in the words of Murray C.T. in Meadows, ‘rendered either pointless or so circumscribed as to be unacceptably ineffective’”
Justice delayed is justice denied
Both the Rules and Programmes for Secondary Schools and the Education Act 2002 fail to set out the process of the procedure, the time frame of the process and the appeal mechanism in the event of an adverse finding.
There is no way of knowing at what stage the process is at, thereby leaving any potential judicial review application open to the defence by the Department of Education and the SEC that the process has not yet been exhausted. But how would one know?
The maxim in law that “justice delayed is justice denied” arises from the longer a person has to wait for a decision on their case, the more likely they will suffer injustice.
In KM v Minister for Justice  IEHC 234, the High Court stated that:
“The principles of constitutional and natural justice include a right to have a decision made … within a reasonable time”
The process is the punishment
The examination results which are given on the day of results are only a provisional result, not the final script results. These “provisional” results are provided to the candidate and where they are not happy or satisfied there is a comprehensive albeit, time framework set out for the candidate to follow during their appeal process. The same such detail is neither provided nor afforded to the candidate who has their results withheld.
Within days of the provisionally released results, the Central Applications Office (CAO) offers places to students, where a student has fallen short of their requested college place they may be successful for their second or third choice, and still may be successful depending if they intend on appealing such provisional results.
Where the results have been withheld from the candidate without the observations of natural justice and fair procedures, this in itself is tantamount to a punishment. The candidate is now being deprived the offering of a college or university place without knowing the reasons as to why, or at the very least knowing what is been alleged against them.
Last year, Rebecca Carter from Wexford successfully won a High Court judicial review against the SEC to have her appeal against her Leaving Cert results expedited. The Department only reacted by changing that particular element of the appeal times within the process and overlooked the remainder of the Leaving Cert process.
This gap of having no clear policy or transparent process makes it inevitable that more legal challenges will land on the steps of the courts before the legislation and process is properly looked at.
- John Temple is a barrister-at-law.