CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 avril 2013

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He is represented before the Court by Mr   Fearghal Shiels of Madden & Finucane, a firm of solicitors practising in Belfast. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The complaints against the applicant and his “precautionary” suspension During the academic year 2006/7 the applicant was a pupil at Dunluce School (“the school”). As a “controlled school” the school was managed by its Board of Governors and the Employing Authorities were Northern Ireland’s five Education and Library Boards. On 31 January 2007 a distressed female pupil (“the complainant”) informed the Principal of the school that the applicant was engaged in conduct inside and outside school that was causing her distress. The complainant did not wish to make a formal complaint against the applicant and did not want him to be informed of her allegations because she was afraid of him. However, the Principal regarded her report as being “sincere and genuine” and “extremely serious”. On 1 February 2007 the Vice-Principal of the school attended a multi ‑ disciplinary case conference arranged by Social Services to discuss unrelated allegations made against the applicant of criminal offences of a sexual and violent nature outside the school. The applicant’s mother also attended this case conference. When the Principal of the school was informed of the allegations discussed at the conference, he contacted a Child Protection Officer from the North Eastern Education and Library Board (“the Board”). He informed the officer of the complainant’s allegations and expressed his concern about the risk the applicant might pose to other pupils. On 6 February 2007 a Risk Assessment meeting was held. At the meeting – which neither the applicant, nor his mother (his legal guardian), nor his grandparents (with whom he was residing) were invited to attend – a formal “Action Plan” was agreed: Social Services were to carry out an assessment of the alleged incident with the complainant and the impact on her mental state. The applicant was to be suspended from school for five days, with the possibility of extension, while that assessment took place. In order to protect the complainant’s identity, it was decided that the applicant should not be informed about her complaint. On 7 February 2007 the Principal informed the applicant in person that he was being suspended for a period of five days and that the suspension was precautionary. He was informed that allegations had been made against him in relation to his behaviour but that he could not go into them. Following the meeting, the Principal telephoned the applicant’s mother to explain the situation. He also wrote to his grandparents to inform them that he had been suspended for five days with the possibility of extension and that work would be available for collection at the school during this period. The applicant’s suspension was extended for three further five-day periods until 13 March 2007. The applicant’s grandparents were notified of these extensions by letters dated 14 February 2007, 23 February 2007 and 5   March 2007. From 7 February 2007 to 14 March 2007 the school had made work available for the applicant in the subjects of Mathematics, English, Science, Religion, Business and Communication Systems, Music and History which was to be collected from the school and then returned for marking. The work was collected only during the first week of his suspension and it was not returned for marking. On 12 March 2007 the Principal wrote to the applicant’s grandparents to inform them that home tuition had been arranged with effect from 14 March 2007 and that the applicant would thereafter be marked on the school roll as “educated off-site”. From 13 March 2007 to 20 April 2007 the applicant received eight hours of home tuition a week in English, Mathematics and Science. On 20 April 2007 the Principal wrote to all Year 12 pupils, including the applicant, informing them that the normal Year 12 timetable had ceased and that they were permitted to study at home or at school pending their GCSE examinations. On 4 May 2007 a meeting was held at the school to discuss the applicant’s situation with his mother and grandparents and to facilitate his re-integration. It was noted that Social Services had not yet completed their assessment of the complainant. However, they were informed that as the Year 12 timetable had ended there were sufficient resources to allow for close supervision of the applicant. He therefore returned to the school but was isolated from the other pupils ostensibly on grounds of his own personal safety. 2.     Proceedings in the domestic courts The applicant brought proceedings for judicial review against the School and the Board on the grounds, inter alia , that his suspension had been unlawful and that there had been a breach of his right to education under Article 2 of Protocol No. 1 to the Convention. On 6 December 2007 the application for judicial review was dismissed as the judge was “satisfied that the applicant was not denied effective access to the education facilities provided in [Northern Ireland] and there was no breach of the applicant’s right to education.” On 26 February 2009 the Court of Appeal dismissed the applicant’s appeal against this decision. The applicant was granted leave to appeal to the Supreme Court. On 23   June 2010 the Supreme Court handed down its judgment in In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27. The court found by a majority that the applicant had been unlawfully suspended from school between 7 February 2007 and 20 April 2007 because he had not been given an opportunity to put forward his version of events prior to suspension (as required by paragraph 4.2.2. of the Scheme prepared by the Education and Library Board and because the letter of 7 February 2007 did not give reasons for the suspension (as required by paragraph 5.1. of the Scheme). The court dismissed the applicant’s claim that his suspension amounted to a violation of Article 2 of Protocol No. 1. Relying on the decision of the House of Lords in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14, Lord Dyson’s leading judgment concluded that there was no Convention right to education of a particular kind or quality other than that prevailing within the Contracting State. There would therefore be a breach of Article 2 only if the individual was denied “effective access” to such educational facilities as the state provided for such pupils. In this case educational facilities were available for pupils who had been suspended from school and the applicant had not been denied access to them. Consequently, there had been no restriction on his right to education and no question of proportionality arose. Lady Hale took a different approach. She concluded that whether the state had denied the applicant effective access to such educational facilities as the state provided was a question of fact and degree. In this case she considered that the three months that the applicant spent out of school before important public examinations could be sufficient to deny him effective access. However, she chose not to express her views in a dissent given that the applicant had achieved his major objective of a finding that he should not have been suspended in the way that he was. B.     Relevant domestic law and practice 1.     Legislative framework in Northern Ireland for suspension and expulsion Article 49 of the Education and Libraries (Northern Ireland) Order 1986 (“the 1986 Order”) applies to “controlled schools”. It provides that: “(1) Each board shall prepare a scheme specifying the procedure to be followed in relation to the suspension or expulsion of pupils from schools under its management. .... (4) A scheme prepared under paragraph (1) ... shall provide that a pupil may be expelled from a school only by the expelling authority and shall include provision for such other matters as may be prescribed.” Article 134 provides that the Department of Education for Northern Ireland (“the Department”) may make regulations for the purpose of giving effect to the 1986 Order. Pursuant to article 134 of the 1986 Order, the Department made the Schools (Suspension and Expulsion of Pupils) Regulations (Northern Ireland) 1995 (“the 1995 Regulations”). Regulation 3 provides: “3.     Without prejudice to the generality of Article 49(4) of the 1986 Order a scheme prepared under Article 49(1), (2) or (3) of that Order shall include provision for the following other matters, that is to say – (a)     a pupil may be suspended from school only by the principal; (b)     an initial period of such suspension shall not exceed five school days in any one school term; (c)     a pupil may be suspended from school for not more than forty-five school days in any one school year; (d)     where a pupil has been suspended from school, the principal shall immediately - i.     give written notification of the reasons for the suspension and the period of the suspension to the parent of the pupil, to the board and to the Chairman of the Board of Governors...; and ii.     invite the parent of the pupil to visit the school to discuss the suspension; (e)     the principal shall not extend a period of suspension except with the prior approval of the Chairman of the Board of Governors and shall in every such case give written notification of the reasons for the extension and the period of extension to the parent of the pupil, to the board....” The Board has prepared a scheme entitled “Procedures for the Suspension and Expulsion of Pupils in Controlled Schools” which elaborates on the procedural safeguards contained within the 1995 Regulations. Paragraph 4.2.2 requires that following a “serious incident of indiscipline” the school should investigate the circumstances of the incident and allow the pupil in question to be interviewed to give his or her version of events before the decision to suspend is taken. 2.     Background to the legislation The background to the legislation is to be found in the “Report of the Working Party on the Management of Schools in Northern Ireland (1979)” otherwise known as the “Astin Report” . The Astin Report stated that there was an urgent need for clarification and greater precision in legislation concerning suspensions and expulsions of pupils from grant-aided schools (paragraph 7.70). It recommended that suspension and expulsion, though regrettably necessary on occasion, should be steps of last resort (paragraph   7.71). 3.     Department of Education policy guidance relating to suspensions A 2001 publication of the Department of Education entitled “Pastoral Care in Schools: Promoting Positive Behaviour” deals with suspensions and expulsions. In relation to suspensions it notes that “informal” suspensions are illegal and that all suspensions should be carried out in accordance with the legislation and relevant scheme. In all cases, it stressed, the principles of natural justice apply and a key consideration will be whether the punishment was proportionate. The pupil concerned must always be able to give his or her side of the case and suspension should be made only after full examination of the relevant facts and evidence. 4.     Judicial consideration of Article 2 of Protocol No. 1 to the Convention The leading domestic judicial decision is that of the House of Lords in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14. Lord Bingham giving one of the two leading judgments considered that: “The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. ... The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?” Lord Hoffmann put his interpretation of the provision in slightly different terms: “Except in cases in which the applicant has been wholly excluded from some sector of the domestic educational system, the European Court’s jurisprudence on Article 2 of the First Protocol has never shown any interest in the procedures by which the applicant was denied entry to or expelled from a particular educational establishment. ... Article 2 of the First Protocol is concerned only with results: was the applicant denied the basic minimum of education available under the domestic system? For this purpose it is necessary to look at the domestic system as a whole. ... .... 61. ... In the case of article 2 of the First Protocol, that would have required a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education.” COMPLAINT The applicant complains that his exclusion from the school from 7   February 2007 to 20 April 2007 breached his right to education under Article 2 of Protocol No. 1 to the Convention. QUESTIONS TO THE PARTIES 1.     Was the applicant’s exclusion from full-time schooling in breach of his right to education under Article 2 of Protocol No. 1 to the Convention, having regard in particular to the judgment of the Court in Ali v. the United Kingdom , no. 40385/06, 11 January 2011?   2.     In any case, can the applicant claim to be a victim of a violation of his right to education in relation to the contested measure of suspension from school, or did the Supreme Court’s finding of the unlawfulness of that measure, together with the reasoning of the Supreme Court Justices for arriving at that finding, remove his status as a victim?   3.     Even if the applicant can claim to be such a victim following the ruling by the Supreme Court, can he be said to have thereby suffered a “significant disadvantage” within the meaning of Article 35 § 3(b) of the Convention?