71 students were this year denied or refused their results on alleged breaches and suspicion of cheating. Barrister at law John Temple asks why these students are left in limbo due to the absence of effective legislation in this area.
Almost 59,000 students received their Leaving Certificate results two weeks ago. For those who have studied for months, there is at last a result which allows those students to progress onto the next chapter of their lives.
However, 71 students were denied or refused their results by the State Examinations Commission (SEC) on alleged breaches and suspicion of cheating.
For those students, there is no progression to the next stage of their lives. They are effectively left in limbo and unsure what the future holds.
The SEC informs students that penalties are applied in line with Rule 76 of the Rules and Programmes for Secondary Schools and that it will consider whether the incident represents an offence under Section 52 of the Education Act 2002.
The Rules and Programmes for Secondary Schools is not a circular, nor is it legislation. It appears to be more a policy from the Department of Education. The rules contain information and guidance for both students of the Junior and Leaving Certificate examinations.
Rule 65 outlines what a candidate cannot bring or have in their possession during the examination. Items such as mobile telephones, a memory bank or a prohibited calculator are not allowed. Rule 67 outlines a list of prohibited behaviours while in the examination hall, which includes the communication or attempted communication with another candidate. Rule 75 provides that candidates may be expelled from the examination hall if their behaviour jeopardises the successful conduct of the examination.
A candidate information booklet from the SEC also says that depending on the offence, all of the results from the entire Leaving Certificate can be withheld.
Rule 76 sets out where the SEC forms the view that there has been a violation of the rules, it should inform the department and it will be for the minister to decide the penalty to be applied.
What is concerning here is that there is no mention of an investigation whereby the candidate would be afforded the protections of natural justice and fair procedures, including the candidate’s Constitutional rights.
The candidate is assumed to be guilty of the charge and is automatically the subject to a penalty of having their Leaving Certificate withheld without being told, or afforded an oral hearing, thereby breaching the principles of Audi Alteram Partem (Let the other side be heard).
This is a principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
Previous judgements in the courts heard that natural justice cannot be met if the scales are ‘tilted against one side all through the proceedings’.
The importance of such a process is that the decision maker, be it within the SEC or the minister does not appear to contain the elements of any fair hearing.
The wording of Rule 76 states that ‘where the Commission is of the view that there has been a violation’, however it fails to set out how that view can be reached.
How was the decision reached? Was it an investigation report, a complaint made, a violation of Rule 75? No one knows. How can a student assess the lawfulness of the decision without knowing something about the decision making process itself?
If the candidate is not made aware of the reasons behind such a decision, this could give rise to a Judicial Review.
Both the Rules and Programmes for Secondary Schools, or the Education Act 2002, fail to set out the process of the procedure, the timeframe of the process and the appeal mechanism in the event of an adverse finding.
There is no way of knowing at what stage the process is at, thereby leaving any potential Judicial Review application open to the defence by the Department of Education and the SEC that the process has not yet been exhausted. But how would you know?
An established principal in law - justice delayed is justice denied - arises from the longer a person has to wait for a decision on their case, the more likely they will suffer injustice.
The examination results which are given on the day of results are only a provisional result, they are not the final script results. These ‘provisional’ results are provided to the candidate and if they are not happy or satisfied there is a timeframe set out for the candidate to follow during their appeal process.
A similar process or timeframe is not outlined for candidates who have their results withheld.
Within days of the provisional results being released, Central Applications Office (CAO) offers college places to students.
Where the results have been withheld from candidates without the observations of natural justice and fair procedures, this in itself is equivalent to a punishment. The candidate is now being deprived the offering of a college or university place without having a fair procedure.
Last year, Rebecca Carter from Wexford successfully won a High Court judicial review against the SEC to have her appeal against her Leaving Cert results expedited. The Department only reacted by changing that particular element of the appeal times within the process and overlooked the remainder of the leaving cert process.
This gap of having no clear policy or transparent process makes in invariable that more legal challenges will land on the steps of the Courts before the legislation and process is properly looked at.
John Temple is a Barrister at Law