England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE GAGE: This is an appeal by the prosecutor by way of Case Stated from a decision of the Aldershot Justices given on 6th December 1996. The Respondent is a school teacher and was tried by the Justices on information alleging an offence of assault, contrary to section 39 of the Criminal Justice Act 1988 of common assault.

2. The assault was alleged to have been on a ten year old pupil at the school. The Justices acquitted the Respondent of the charge. The trial occupied two days, and the facts, briefly, were as follows: on 8th March 1996, the Respondent, who was a former head teacher, was teaching a class of ten and eleven year old pupils, when at about 3 o'clock in the afternoon, his attention was drawn to a boy who was rocking backwards and forwards in his chair. The boy continued to do so when the Respondent told him to stop.

3. The Respondent then went over and reached behind the boy's neck and pushed him forward off the chair on to the floor. The incident was seen by a parent who reported it immediately to the head teacher. The head teacher intervened arranging for the boy to be examined medically. It was found he was uninjured but distressed, and the head teacher then required the Respondent to account for the incident.

4. What happened next is set out in the facts as found by the Justices in paragraphs 1(e) and (f) of the case:

"The head teacher then went to her office and the respondent was invited in and asked to give an account of the incident. During the course of this account she took down jottings of key words. We found that there was no evidence that she had administered any caution or had advised him as to legal representation or that he had an opportunity to check the accuracy of the notes taken. After the respondent left her office she contacted an officer of the Local Education Authority for advice and guidance on the procedures she had adopted and some 5 hours later she made full notes of the conversation she had had with the respondent.

The head teacher is an experienced teacher and has been a teacher for 3 years. She accepted that she had had to deal with this type of incident at the school before and that it was her practice to make brief notes before writing them up fully afterwards. She also accepted that she considered it was her duty to investigate these incidents and that as the result of her inquiries the police might become involved, however, she stated she had little knowledge of the correct procedure. In her view the purpose of her conversation with the respondent was to give him an opportunity to give his version of events."

5. At this point, in the course of the hearing, the Respondent objected to the admissibility of evidence of the head teacher's interview with him. It was contended that the head teacher was a person charged with the duty of investigating offences and under section 67(9) of the Police and Criminal Evidence Act 1984 she should therefore have had regard to the Code of Practice which would have involved cautioning the Respondent.

6. Accordingly, it was contended that there were breaches to the Code of Practice and that the evidence relating to the interview should be ruled inadmissible.

7. The Justices acceded to these submissions. In paragraph 6 of the case, they state:

"We were of opinion that:-

a. The head teacher was a person to whom s.67(9) Police and Criminal Evidence Act 1984 applies and even though the investigation of offences was not her prime duty she was nevertheless a person charged with a duty to investigate offences and should therefore have regard to the provisions of the Police and Criminal Evidence Act 1948 Code of Practice."

8. They go on to say, that as a result, they would exclude the evidence and at paragraph 6c they state:

"The head teacher would be duty bound to report to the authorities any evidence of an offence having been committed obtained in her conversation with the respondent and that she was aware that criminal proceedings might be instituted as the result of her investigation. In considering the exercise of our discretion to exclude evidence obtained from the conversation we concluded that notwithstanding the respondent was a former head teacher he was entitled to the same protection given by the Code as to any other person suspected of committing an offence.

9. The trial proceeded, the Respondent gave evidence and, in due course, was acquitted by the Justices. The question for this Court, as set out in the case, was put in two ways:

"a. Were we correct in deciding that a conversation held between the head teacher and the respondent was governed by the provisions of the Police and Criminal Evidence Act 1984.
b. Were we correct in deciding that the evidence of the said conversation should be excluded under section 78 of the Police and Criminal Evidence Act 1984."

10. Before us, the argument has centred entirely on the question of the application of section 67(9). The Appellant, through counsel Mr Foster, has stated, that if the appeal is allowed on that point, the Appellant will not seek a fresh trial before a fresh bench of Magistrates and, accordingly, the decision for this Court is solely on that issue as to whether or not section 67(9) in the circumstances applied to this head teacher.

11. Mr Foster referred the Court to a number of decisions in which the matter of section 67(9) had arisen. It is unnecessary to set out extensively all that is in those decisions. We were referred to the R v Thwaites v Brown (1991) 92 Cr.App.R 106. That was a case where two investigators, described by the Divisional Court as "Commercial investigators", interviewed and obtained a confession from an employee of the owners of the betting shop, and were held to be capable of coming within the section. In Joy v Federation Against Copyright Theft Ltd [1993] Crim. L.R. 589 this court held that an investigator employed by the respondent, who visited the home of the Appellant with police, was a person charged with that duty of investigating offences and so came under section 67(9).

12. Perhaps of greatest importance is the case of R v Smith (1994) 99 Cr. App.R 233. A passage in the headnote shows that the case concerned an official of the Bank of England. In a paragraph in the headnote at page 234, the following is set out:

"The appellant was chairman and managing director of a bank (WSTC) which was supervised by R [Mr Reeves] on behalf of the Bank of England (the Bank) under the Banking Acts 1979 and 1987. One Sunday in April 1991 the appellant telephoned R to tell him that WSTC had a liquidity problem. They had a meeting later that day to discuss the impact this would have on other institutions. Before the meeting R was informed that another director of WSTC wished to report a fraud by one of the other directors of WSTC. R questioned the Appellant and put it to him that he had knowingly entered into fraudulent transactions. R obtained the appellant's permission to contact the police and advised him to consult his solicitors. The appellant was arrested about four hours later but was not shown the notes made at the interview; nor had he been told that he was under no obligation to answer questions."

13. The point taken by those appearing for the Appellant was that Mr Reeves, the official of the Bank of England, was a person charged with a duty of investigating offences and, therefore, came within the provisions of section 67(9). That application was rejected by the trial judge and the matter was dealt with by the Court of Appeal. At page 241 in the judgment given by Lord Justice Neill the following is set out:

"The question whether a person is charged with the duty of investigating offences involves an examination of the statute, contract or other authority under which he carries out his functions and a consideration of his actual work. It is a question of mixed law and fact. It is therefore necessary to consider Schedule 3 as well as the evidence given by Mr Reeves himself."

14. Further down the page, his judgment continues.

"In our judgment, however, the fact that

15. Leaving out the next sentences, the judgment continues:

"In the context of section 67(9) of the 1984 Act, however, 'the duty of investigating offences' implies that the person charged with the duty has to conduct an inquiry into the relevant offence of a kind similar to that conducted by a police officer. In his evidence before the judge, Mr Reeves was asked the specific question whether he was charged with investigating offences either under the Banking Act or generally. His reply was 'no, not at all'."

16. Basing himself on those authorities and in particular on Smith, Mr Forster submits that in this case the head teacher was not a person charged with the duty of investigating offences. His submissions are these: he submits there was no evidence that the head teacher was under any contractual or legal duty to investigate offences, and the magistrates did not set out in their findings of fact that the head teacher had a contractual duty to investigate offences. He further submits, that the investigation of incidents is an entirely separate one from a duty to investigate offences. It is his submission that the Magistrates found the former not the latter. He went on to submit that, in any event, that the Magistrates were wrong to exercise their discretion in favour of ruling the evidence admissible.

17. As I have already indicated, we have not specifically heard argument on that matter because, as Mr Forster submits, if the Magistrates were wrong in their conclusions in relation to section 67(9), then the exercise of their discretion under section 78 would have proceeded on a false basis.

18. For the Respondent, Mr Shale makes a number of submissions. First, he has referred us to various sections in the Education Act 1986. Without setting those out in any detail, the ones relied upon by

19. Mr Shale were section 22, which states that a head teacher has duties in relation to the discipline of pupils, and section 41 which provides that a head teacher has duties in relation to the discipline and dismissal of staff. He points to the fact that a head teacher under the statutory provisions is a member of the Governing Body. In view of those statutory duties, it is submitted by Mr Shale that the head teacher is under a statutory duty to investigate not only incidents but, and he goes further than that and submits, to investigate offences. Accordingly, it is submitted, that in this particular case, the head teacher is more in the nature of an investigator or commercial investigator set out in the other cases.

20. He further submits that the Magistrates having had to find facts in this matter, their findings cannot be challenged or interfered with.

21. For my part, I cannot accept Mr Shale's submissions. In my judgment, the statutory provisions under the Education Act do not persuade me that a head teacher is under any legal duty by the way of statutory or contractual duty sufficient to make section 67(9) of the Police and Criminal Evidence Act apply. In my judgment, the answer, in reality, to Mr Shale's submissions is that if there is any unfairness in any interview by a head teacher of a member of staff, that is a matter which in criminal proceedings can be catered for and dealt with by an application under section 78 of the Police and Criminal Evidence Act.

22. In my judgment, it is wholly unrealistic to expect head teachers investigating incidents such as this to follow the procedures of the Code of Conduct which are part of the Police and Criminal Evidence Act. Recognising as I do that it is a question of fact and law in each case, as to whether or not the particular person comes within the provisions of section 67(9), I am satisfied in this case that Magistrates were plainly wrong to conclude that the head teacher came within those provisions.

23. I conclude that this head teacher was not a person charged with investigating an offence. It seems to me, that any head teacher may very well have to investigate incidents which occur in school, yet the circumstances in which the incidents arise will vary enormously from the plain accidental to the potentially criminal, but it does not mean that the head teacher is a person charged with the duty of investigating offences.

24. In my judgment, the evidence in this case does not establish that this head teacher was under the requisite duty of investigating offences as to make section 67(9) applicable. Accordingly, it follows, that the Magistrates exercising their discretion under section 78 were proceeding on a wrong basis. I would answer the first question in the case, which I read again:

"Were we correct in deciding that go confer helped between head teacher and the respondent by were significance of The Police and Criminal Evidence Act 1984 in the following way:"

25. Insofar as the question relates to section 67(9), the Magistrates were not correct. As I have already indicated, it is not necessary to go on to deal with the second question which relates solely to the application of section 78.

26. I would therefore allow the appeal, but in view of the attitude taken by the Appellants in this case, it is not necessary for it to be remitted to the Justices for a rehearing.

27. LORD JUSTICE BROOKE: I agree. The reasons we are not answering the Justices' second question, which relates to the exercise of their discretion under section 78 of the Police and Criminal Evidence Act is, as my Lord has said, that at the trial they considered this issue on the wrong basis, since they wrongly held that the head teacher ought to have followed the Codes of Practice under the Police and Criminal Evidence Act, because she was a person charged with the duty of investigating offences within the meaning of section 67(9).

28. We do not know what findings the Justices would have made or what conclusion they would have reached if they had not made their prior findings. It is certainly not an issue on which it would be right for this supervisory court to make any primary finding. There may well be cases where a court would consider it proper to refuse to admit evidence, pursuant to the powers given to it under section 78 of Police and Criminal Evidence Act, of what was said at an interview conducted by a head teacher in circumstances such as those described in the present case. Each case, however, depends on its own particular facts, and it would be quite wrong for this Court to attempt to give any general guidance on this matter.

29. The appeal is, therefore, allowed in the sense that we answer the first question posed by the Justices in the manner given by my Lord in his judgment.

30. MR SHALE: My Lord, that raises the question of costs. I accept, in essence, that I have it on the primary point. My Lords, you will appreciate the main purpose of my attendance here was not to deal with matters of law but to consider the question of a retrial in respect of Mr Goodfellow and that matter, despite being raised on previous occasions and even today, was only abandoned during the hearing before your Lordships.

31. My Lords, you will appreciate that in financial circumstances, Mr Goodfellow is a retired teacher, who has not obviously been able to work since this incident and is on a small pension. My Lords, in those circumstances, in my submission, we would have succeeded on points (b), (c) and (d), but, of course, you did not get to consider that aspect of the case. My Lords, I would therefore ask that either the costs are awarded from Central Funds or against the Appellants in respect of this matter.

32. MR FORSTER: My Lords, I resist any application against the Appellants. The reason I have taken the attitude I have, and those instructing me have, is that, in the skeleton argument on behalf of the Respondent, which I received yesterday, it was pointed out that the case depends on two child witnesses, one of whom 'T' was extremely distressed by giving evidence. The Appellants also take into account the passage of time and the youth of the witnesses which the Crown called at the Magistrates Court and therefore, question whether or not a fair trial could take place now were the matter to be remitted. It is for that reason only, that the Crown made the concession that it did. So in my submission, if costs are to be awarded they should come from central funds.

33. LORD JUSTICE BROOKE: You may have your costs out of central funds.

34. MR FORSTER: My Lord, I am obliged.