Monday 20 May 2019

Suspended student accused of selling €20 worth of cannabis loses High Court challenge

(stock photo)
(stock photo)

Aodhan O'Faolain and Ray Managh

A student suspended by a secondary school over allegedly selling €20 of cannabis to a fellow student has lost his High Court challenge over a planned disciplinary hearing.

In his judgment dismissing the action, Mr Justice Garrett Simons found the case was premature and had been taken when "the disciplinary process was still in train" and when "no decision has been taken to expel the student." 

The judge added that the student's application to judicially review the proposed disciplinary hearing into the allegations against him was "inappropriate" in circumstances where there was an alternative remedy available.

The student had a statutory right of appeal against any decision to permanently exclude him from the school under Section 29 of the Education Act.

That appeal, heard by a three-person committee appointed by the Department of Education, takes the form of a full hearing on the merits, with the committee having the jurisdiction to make a determination on the issues raised.

That option should be taken before a case is commenced, the judge added.

Neither the student nor the school can be identified by order of the court.

Through his father, the student had sued the school's board of management after it commenced a disciplinary process late last year after cannabis was found in a schoolbag on the school premises. 

The student, who remains suspended pending the outcome of the process, admitted personally using cannabis outside of school but denies possessing it while on the school premises or being involved in the supply of the drug.

He had challenged the disciplinary process on grounds including that the school principal had contaminated the decision-making process when conducting an investigation into the allegations.

It was claimed that in breach of fair procedures the principal had made findings of fact in relation to the allegations, which was something exclusively reserved for the school's board of management.

It was claimed that this gave rise to an apprehension that the board had prejudged the matter.

It was also alleged that the student would not have been allowed to challenge the evidence against him at the proposed disciplinary hearing before the board of management.

The board opposed the action and denied there had been any breach of fair procedures.

The school also argued the teen's application was premature in circumstances that the disciplinary process had not been completed.

In his ruling, the Judge said the circumstances of the case came "nowhere close to meeting the threshold for court intervention."

He rejected criticisms of the school principal and said any concerns could be addressed before the board.

The board, he said, had yet to embark on any substantive consideration of the matter.

The Judge said that there were good reasons why courts should exercise restraint in matters relating to school discipline.

There must be regard to the statutory appeal process, which is likely to be more expeditious than legal proceedings, he said.

The Judge also said that the legal costs in this case, are likely to run to six figures.,

Speaking in general terms the judge said there would be a chilling effect on schools if it becomes standard practice for aggravated students to bring judicial review proceedings rather than opt for an appeal before a section 29 committee.

School boards might hesitate before opting to expel students because the school might end up being exposed to significant legal costs, even if they win their case, he added.

It was preferable that disputes in school disciplinary matters be dealt with by way of inexpensive statutory appeal processes, the Judge concluded.  

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