The Supreme Court handed down judgment in the case of In re an Application by "JR17" for Judicial Review [2010] UKSC 27 on the 23 June 2010. The case concerned the lawfulness of the suspension of a student from a school within the North Eastern Education and Library Board, and whether that suspension breached article 2 of the First Protocol of the European Convention on Human Rights.

The school was designated a “controlled” school, within the meaning of the Education and Libraries (NI) Order 1986 SI 1986/594 (NI 3). Article 49 requires that each board prepare a scheme of procedure to be followed regarding suspension or expulsion of pupils. Regulation 3 of the Schools (Suspension and Expulsion of Pupils) Regulations (Northern Ireland) 1995 further specified the procedure to be followed. A scheme was prepared by the North Eastern Board.

The appellant was suspended by the principal pending a risk assessment following a complaint of misconduct by a fellow pupil. This was stated to be a precautionary measure and pursuant to the scheme. In fact the provisions of the scheme had not been complied with. Commencing judicial review proceedings, the claim was dismissed in the High Court. The Court of Appeal agreed with the High Court that a common law power to suspend as a precautionary measure existed within the principal’s management powers. Finding that sufficient information was provided to the appellant such that the decision would not be invalidated, the appeal was dismissed.

Before the Supreme Court, four issues were submitted for determination. First, on what ground was the appellant suspended. Secondly did the principal have the power to suspend the appellant on that ground? Third, if that power was available was it exercised lawfully and fourthly was a breach of Article 2 of the First Protocol of the European Convention on Human Rights?

Referring to the labels “disciplinary” and “precautionary” in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, Sir John Dyson, Lord Phillips and Lady Hale determined on the evidence that the suspension was on the grounds of a belief in a prima facie case against the appellant, and that therefore the appellant was suspended on disciplinary grounds within the bounds of the scheme. Lords Rodger and Brown found that the power was a precautionary measure but that no common law power existed and on that ground the power had been exercised unlawfully.

Deciding that the scheme made express provision for suspension on disciplinary grounds the court found that the circumstances in which a power to suspend or expel would be exercised and did not include suspension as a precautionary measure, even as a parallel measure.

Finding that the power provided by the scheme was exercised unlawfully, the court noted O'Reilly v Mackman [1983] 2 AC 237 which provided for a right of an accused to present his version of events. That the appellant was not given such an opportunity breached the scheme and a further breach occurred in a failure to provide reasons for the decision.

Unanimously the court found that Article 2 of the First Protocol had not been breached but allowing the appeal, found that the appellant had been unlawfully suspended between 7th February and 20th April 2007.