About this case:

• Citation:
  [2022] NICA 22
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mr Justice Michael Humphreys

Background

The appellant, now aged 18, was expelled from a voluntary grammar school in 2020, and this decision was upheld by the School Expulsion Appeal Tribunal.

He engaged in abusive online activity which involved sending offensive emails to school staff and impersonating teachers by sending emails in their names to colleagues. His biology teacher was a particular target of this “appalling behaviour”.

The appellant and his parents never denied his wrongdoing, but argued that the school failed to consider alternative sanctions, other than expulsion. It was argued that the school also made procedural mistakes, which were not cured by the later tribunal hearing.

The suspension and expulsion of pupils from school is governed by article 49 of the Education and Libraries (Northern Ireland) Order 1986. Since the school was a voluntary grammar school, it was obliged to prepare its own scheme specifying the procedure to be followed in relation to suspension or expulsion.

Under the Schools (Suspension and Exclusion of Pupils) Regulations (Northern Ireland) 1995, certain provisions must appear in such a scheme, including an option to appeal a decision to a tribunal.

In accordance with its obligations under article 49(1), the school prepared a scheme, entitled ‘Suspensions & Expulsions Policy’, dated April 2017. Paragraph 2.2 of the scheme lays down the procedures to be followed in the event of a case where expulsion is being considered.

Expulsion consultation

On 27 November 2020, the appellant’s parents were notified by the principal that there would be a consultation meeting to discuss the possibility of expulsion. Although the parents had a right to attend, they did not, because they were self-isolating due to Covid-19.

The parents received the minutes of the consultation meeting, which did not set out any discussion of alternatives to expulsion. The unanimous decision of the school board was to expel the appellant. This was communicated by letter which included the following statements:

1. The behaviour warranted expulsion as outlined by the ‘Education Authority Scheme for the Suspension and Expulsion of Pupils’; and
2. Under article 39 of the Education and Libraries (NI) Order 1993 the parents had a right of appeal to an Appeals Panel of the Board of Governors.

Both of these statements were simply wrong and no explanation was provided as to how these errors occurred. As a result, the parents believed they had a further right of appeal, which was incorrect.

A “dubious” appeal hearing did take place, but after this upheld the original decision, the parents appealed to the Tribunal.

Decision of the Tribunal

The Tribunal dismissed the appeal and gave its written reasons, which included:

• There were”‘a number of issues” with the school’s expulsion procedures but the appeal hearing was capable of dealing with any deficiencies;
• The school had considered alternatives to expulsion but due to the seriousness of the behaviour and the impact on pupils and staff, there were no other viable options available; and
• The Tribunal held that the Governors’ decision to expel was reasonable and proportionate taking into account all the circumstances.

Decision of the High Court

The appellant then instigated an application for judicial review seeking to challenge the decision of the Tribunal. Leave was granted, but ultimately all of the grounds of challenge were dismissed.

The court found that the tribunal did carry out a careful investigation as to whether alternatives to expulsion were considered by the school, and although these options were not included in the meeting minutes, the Tribunal was entitled to find that such considerations did take place.

Ultimately, the court found that any previous procedural errors were cured by the demonstrably fair Tribunal hearing.

Grounds of appeal

The appellant argued that the learned judge erred in law by determining that the Tribunal had acted reasonably in concluding that the school had carried out a careful investigation into the potential alternatives to expulsion, and that the Tribunal applied the correct expulsion scheme.

The court accepted that there had been confusion over which expulsion scheme to use in this case. There were also requirements in the scheme that were not followed, such as:

1. The parents were denied an opportunity to make oral representations at the consultation meeting in circumstances where they wished to attend;
2. The school ignored the policy of the scheme which clearly foresaw a period of time of at least eight days between the respective meetings, in light of the obligation on parents to furnish written submissions and give notice of intention to make oral submissions; and
3. The letters from the school to the parents of December and January referred to the wrong scheme.

However, the court also noted that if an unfair procedure is followed by a fair appeal then the latter can “cure” the former. There was no evidence to establish that the Tribunal procedure had been unfair.

Next, the court considered whether the consultation meeting had properly dealt with the issue of alternatives to expulsion.

Here, the court noted that under paragraph 7 of Schedule 2 to the 1994 Regulations, the question of whether such discussion and consideration actually took place was a question of fact for the specialist Tribunal carrying out its statutory function.

The Tribunal found that the school had considered alternatives to expulsion, having received evidence orally from the principal, the chair of the Board and the appellant’s parents.

This was an entirely rational conclusion which was open to the finder of fact to make. There was no basis for such a finding to be impeached by way of judicial review.

Conclusion

Ultimately, the court found that the High Court decision had taken all relevant material into consideration, and there was no basis for impeaching this finding. The appeal was dismissed, and the High Court ruling was affirmed.