CS’ Application
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] NIQB 36 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 30 April 2015 |
| Year | 2015 |
1
Neutral Citation No. [2015] NIQB 36
Ref:
HOR9556
Judgment: approved by the Court for handing down
Delivered:
30/04/2015
(subject to editorial corrections)*
No. 14/95764/01
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
_________
CS’ Application [2015] NIQB 36
IN THE MATTER OF AN APPLICATION BY CS FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS TAKEN BY
THE QUEEN’S UNIVERSITY OF BELFAST
DATED 24 SEPTEMBER 2014 AND 1 OCTOBER 2014
________
HORNER J
Framework of Judgment Paragraphs of Judgment
A. Executive Summary 1-2
B. Introduction 3-5
C. Background 6-7
D. Challenge 8
E. Convention Considerations 9-14
F. Common Law Considerations 15-17
G. Board of Visitors 18-37
H. Lack of Candour 38
I. Conclusion 39
A. Executive Summary
[1] This is a judicial review of decisions made on 24 September 2014 and
1 October 2014 by Queen’s University Belfast (“QUB”) to ‘temporarily withdraw’ the
applicant from the University for the duration of a Sexual Offences Prevention Order
(“SOPO”) which expires on 5 September 2019, after which period the applicant could
apply to the University for re-admission. It is important to emphasise that this is not
an appeal on the merits. This is an application for judicial review.
2
[2] The court has declined to grant the judicial review for the following reasons:
(i) It has concluded that the Board of Visitors has exclusive jurisdiction to hear
the applicant’s appeal from the decisions of which he complains, subject to
four exceptions. These are that the Board can be subject to judicial review
when it exceeds its jurisdiction, abuses its powers, breaches the principles of
natural justice and/or does not protect the rights a party enjoys under the
European Convention of Human Rights (“the Convention”).
(ii) Regardless of the exclusive jurisdiction of the Board, the court requires the
applicant to exhaust his remedy before that Board prior to seeking any
judicial review.
(iii) The judicial and extra judicial support from many eminent legal figures for
the exclusive jurisdiction of the Board of Visitors offered over hundreds of
years, remains as true today as when it was originally offered. Indeed, there
are good grounds for concluding that the judicial tide flows even more
strongly in favour of hearings taking place before such bodies. Of course, as a
public authority the Board is now obliged to act in a Convention compliant
way.
(iv) In any event the challenge is premature. The process has not yet run its
course. At common law and under the Convention, the whole process has to
be considered in assessing whether there have been breaches of the
applicant’s convention or common law rights. The court is not in a position,
nor should it try to determine whether the applicant’s common law or
convention rights have been infringed. This should only take place after there
has been a full hearing before the Board of Visitors.
B. Introduction
[3] In this application the applicant seeks to judicially review QUB arising out of
decisions made to suspend him as a student from studying Chemical Engineering
for a period of 5 years. He has successfully completed 2 years of his course to date.
At the end of this period, the applicant has the option to re-apply to continue his
studies, but he has no guarantee of being admitted back to QUB. The first decision
under challenge is the decision of the Review Panel comprising Wilma Fee, the
Director of Academic and Student Affairs, Chris Hardacre, Head of School of
Chemistry and Engineering and Kara Bailie, Head of Student Welfare. It is
contained in a letter dated 24 September 2014 to the applicant informing him that he
would be temporarily withdrawn from the University for the duration of the SOPO
which would expire on 5 September 2019 and which was imposed by Her Honour
Judge Philpott on 5 September 2014 at Belfast Crown Court on account of his
commission of various sexual offences. After that period he could then apply to
QUB for re-admission. The second and central decision which the applicant seeks to
3
judicially review is the decision of the Review Appeals Panel which met on 1
October 2014 and which heard an appeal from the first decision. They concluded:
“Based on the evidence presented the Panel found no
reason to overturn the decision of the Panel of
24 September 2014, therefore the appeal was not upheld.
The Panel did take into consideration the fact that this
was a lengthy period but concluded that the SOPO was
either workable or was not, regardless of its duration.”
[4] An application for judicial review was filed by the applicant on 29 September
2014, that is after the first decision but before the second decision. The applicant was
granted anonymity through email correspondence on 29 September 2014, a day
before the matter was brought before the court as an emergency leave application.
The leave application was adjourned to permit, inter alia, amendment of the Order
53 Statement to include a challenge to the second decision. Leave was granted on
19 November 2014. At that time the court did not have detailed information relating
to the appointment and independence of those Visitors who comprised the Board of
Visitors, to whom the applicant could petition, that is effectively appeal, the two
earlier decisions.
[5] This judicial review gives rise to a number of interesting issues, the chief one
of which had been anticipated in Croskery’s (Andrew) Application [2010] NIQB 129,
namely what effect the Human Rights Act 1998 has on visitorial jurisdiction.
However, in that case, given the nature of the dispute, namely whether the
applicant’s degree should be reclassified, the trial judge may not have adequately
described the nature of the hearing before the Board in other types of case: see page
235(a). There are a number of other issues which also require resolution. The court
acknowledges the assistance and support it received from counsel on all sides at
both the leave and hearing stage. Detailed and carefully thought out written
skeletons were submitted by both sides and these were augmented by well-
constructed oral submissions. Indeed after the submissions had concluded, two
further cases were drawn to the attention of the parties. Their legal teams responded
promptly with further detailed written submissions.
C. Background
[6] It is essential to provide a context to this judicial review challenge. The
central facts are as follows:
(i) The applicant is 21 years old. He is a student at QUB where he had been
studying Chemical Engineering successfully for 2 years. This is a 4-5 year
course. He commenced the course in September 2012. The applicant has a
certain amount of computer expertise which the court understands is
necessary to allow the applicant to carry out this course of studies.
To continue reading
Request your trial
1 cases
-
Nhembo's (Raymond) Application for leave to apply for Judicial Review
...degree and the level of degree awarded, bears some similarity to the issue in the present case. [41] In addition, in Re CS’s Application [2015] NIQB 36, a case involving a ‘temporary withdrawal’ of a student from his studies (akin to a suspension), Horner J concluded that the Board of Visit......