R (S) v a
| Jurisdiction | England & Wales |
| Judge | SIR MICHAEL HARRISON |
| Judgment Date | 05 February 2008 |
| Neutral Citation | [2008] EWHC 770 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11435/2007 |
| Date | 05 February 2008 |
[2008] EWHC 770 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Michael Harrison
CO/11435/2007
Helen Mountfield (instructed by Liberty) appeared on behalf of the Claimant
Jonathan Auburn (instructed by Evans Quartermaine) appeared on behalf of the Defendant
(Approved by the court)
This is an application for interim relief in connection with an application for judicial review where permission was granted by Ouseley J. The judicial review application relates to the legality of the defendant's school uniform policy and certain natural justice arguments arising out of consequential exclusion from the school. The effect of the school uniform policy is that the claimant, who is a 14-year-old girl of Punjabi-Welsh origin, and who is an observant Sikh, would not be able to wear her kara on her wrist, which is a symbol of her faith. It is claimed that that policy is unlawful.
Ouseley J granted permission, describing the case as “just about arguable”, and he refused interim relief, dealing with it in a rather more comprehensive way than one tends to find on a matter being dealt with on the papers. It would be helpful if I were to read it into the transcript. He said:
“I regard Begum as probably decisive against the claimant. I do not follow why Mandla is thought to be so strongly favourable to the claimant. This case is about a religious requirement of Sikhism and I have real difficulty in seeing that that could be regarded as comparable in relation to ethnic identity in the way that the turban was in that case. Otherwise, uniquely, all aspects of this particular religion would become matters of racial discrimination. That is particularly evident in relation to a Claimant who is a Sikh by conversion and not ethnic origin. I also find unpersuasive the grounds upon which Begum is sought to be distinguished… The Claimant knew of the policy when she went to the school and when she converted she knew of the view taken about nose studs. She may not want to go to the other schools which would permit her to wear the kara but her education can continue. She has not shown any good reason why the compromise whereby she can carry the bangle about her person while at school cannot be adequate in the interim. I am not persuaded that the mere fact that she regards a particular aspect as important, perhaps in common with most adherents, should be the overriding factor. Her education in the interim if pursued at this school can be accomplished at the cost of precise adherence to the full public manifestation of her new belief. The application for interim relief can be renewed orally but I do not propose to order it to be listed.”
It was perhaps as a result of that last sentence, I know not, that this application for interim relief has now been renewed before me. The policy of the school is that no jewellery should be worn except a wrist watch and plain metal ear studs, so the kara would plainly fall foul of the policy. I have been addressed at some length about the strength of the merits of the legal aspect of this case. As I have just mentioned, Ouseley J found the case just about arguable whilst Ms Mountfield, who has appeared on behalf of the claimant, suggests that the claimant has a strong case. Perhaps not surprisingly, Mr Auburn, for the defendant, says he has a strong case.
There are four decided cases which have been mentioned. The case of Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548, a House of Lords decision relied upon by the claimant; R (Begum) v Governors of Denbigh High School [2006] UKHL 15, another House of Lords case, relied upon by the defendant; and two first instance cases, R (X) v Y School [2007] EWHC 298 (Admin) and R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698 (Admin) which are both relied upon by the defendant.
I do not propose to go into the intricacies of the arguments that I have heard relating to the strength of the case because I think it appropriate at this stage to approach the matter on a neutral basis. It may well be that the case is not quite so weak as Ouseley J thought. On the other hand, I have my doubts whether it is quite as strong as Ms Mountfield suggests. I treat that as a neutral aspect in considering this application.
I would accept Ms Mountfield's argument that the relevant test for me to apply is what she has described, and I think has been described elsewhere, as the test of lesser injustice. It has been put in a number of ways, but it involves comparing the detriment of both sides if interim relief were refused and the party were to win at the substantive hearing. So I consider, on the one hand, the harm or detriment that would be caused to the claimant if she is not allowed to wear the kara for the moment but then it is found at the substantive hearing that she can wear the kara, and I compare that with the harm that would be caused to the school if the claimant is allowed to wear the kara for the moment but then it is found at the substantive hearing that she is not allowed to wear it. So despite all the lengthy submissions that I have heard, that seems to me to be the relevant test for me to apply.
Ms Mountfield said that the claimant has to choose between something which is central to her religion and her education at a pivotal point in her career. She makes that submission on the basis that the claimant would not attend the school if she is not allowed to wear her kara. She also makes the point that the inability to wear her kara puts her at a disadvantage because many regard it as important to wear the kara in connection with their religion. So there is the disadvantage in relation to her faith, there is the disadvantage that she has to choose between that and her education (on her case), and there is, says Ms Mountfield, the prolongation of a harmful break in her education at a critical time for her. The period, of course, is the period between today and the date when the substantive hearing is held and judgment is given, and of course one cannot know exactly how long that will be. So that is the harm that I look at on the one side. Of course, I remind myself that that is on the basis that she would win at the substantive hearing; it is the harm that she would suffer in the interim.
On the other hand, there is the harm or detriment that would be caused to the school if the claimant were allowed to wear the kara in the interim. The evidence that I have relating to that is that, as submitted by Mr Auburn, it has to be set in the context of a set of rules and discipline for some 600 children and teenagers. It is that context which, he submits, the claimant has ignored. Mr Auburn has drawn my attention to the witness statement of the headteacher, Ms R, relating to the difficulties in maintaining a set of rules for over 600 children. He submits that that should not be underestimated. He submits that it is unrealistic to expect that a school of over 600 children can find out one week that an exception is being recognised for one pupil, and then a few months later it is not recognised any more. He submits that it is unrealistic to expect all those children to accept that what they have heard applies to only one pupil, and that they all will accept, at the end of the interim period, that forthwith the exception no longer applies. He also submits that one cannot realistically expect the understanding of over 600 children and teenagers to absorb faithfully the nuance of a rule such as this and act upon it as if it is switched on and off. The danger is that there will be pupils turning up at school displaying jewellery and saying that they had heard it was allowed. He submits that the undermining of the schools' uniform discipline policy by granting the interim injunction may be almost as much detriment as the grant of final relief.
I should refer to some of the points made by Ms Mountfield on this point relating to the harm to the school. She first of all made the point that there was no evidence of harm suggested in the grounds of resistance. That is right. It seems to me to be rather a lawyer's point, although it is a point that can be fairly made. Mr Auburn, slightly plaintively, replies that there were some 200 paragraphs and some 55 pages in the claim form and he cannot be blamed for not dealing with them all. However, that is a point that is made by Ms Mountfield.
She submits that it is not so difficult as all that to explain to the pupils that this is a matter which has been the subject of a court challenge, and to make it clear to the...
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