CO/4221/1003 
Neutral Citation Number: [2003] EWHC 2817 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 10 November 2003
 
B E F O R E:

MR JUSTICE BEATSON

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THE QUEEN ON THE APPLICATION OF DEBRA GRAVES
(CLAIMANT)

-v- 

LONDON BOROUGH OF ISLINGTON
(DEFENDANT) 
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MS A S BROWN (instructed by BSB, London, NW1 2SA) appeared on behalf of the CLAIMANT
MR J AUBURN (instructed by London Borough of Islington, Legal Services) appeared on behalf of the DEFENDANT
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J U D G M E N T

1.	MR JUSTICE BEATSON:   This is an appeal by way of case stated against a ruling of His Honour Judge Van Der Werff, sitting with Magistrates at the Inner London Crown Court on 14 July 2003.  Miss Debra Graves appealed against conviction of an offence under section 444(1A) of the Education Act 1996, of having a child of compulsory school age who is a registered pupil at a school failing to attend regularly at the school knowingly and without reasonable justification.  The learned judge rejected a submission that the case should be stayed as an abuse of process.  
2.	The offence for which Miss Graves was convicted related to a period from 29 September 2002 to 20 December 2002.  She was convicted by Highbury Corner Magistrates on 28 February 2002.  Previously, the non-attendance of her son at school had led to the London Borough of Islington seeking and obtaining an education supervision order as provided for by section 36 of the Children Act.   By letter dated 26 November 2002 Miss Graves was advised by the local authority that her son was breaching his supervision order and that the matter would be returned to court by way of a prosecution under section 444(1A).   
3.	The basis of the submissions before the learned judge and before me relate to the inter-relationship between education supervision orders made pursuant to section 36 of the Children Act 1989 and prosecution for truancy under the 1996 Act.  Ms Brown, on behalf of the appellant, submits that once an authority has elected to proceed by way of an education supervision order, it is not open to it to institute a prosecution under section 444(1A).  The learned judge stated that he did not think that Ms Brown had argued that it was unlawful for the authority to proceed as they did.  Ms Brown's submissions before me, however, were that it was unlawful.  There are two limbs to her argument: (i) that it was not open to the London Borough of Islington to proceed in this way; and (ii) that if it was lawful, it was nevertheless an abuse of process.
4.	The two questions the crown court stated for consideration by this court are:
1.  Where a local education authority seeks and obtains an education supervision order pursuant to section 36 and Schedule 3 of the Children Act 1989, is it necessarily and by virtue of having so sought an education supervision order, an abuse of process for that authority later to prosecute the child's parent under section 444(1A) of the Education Act 1996? 
2.  Was the crown court right to find that there was no abuse of process in the matter in which the Crown proceeded in this appeal before it?
5.	I first set out the statutes.  The Education Act 1996 section 444 provides:
"If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
 (1A)  If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
....
 (8)  A person is guilty of an offence under [subsection (1)] is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
 (8A)  A person guilty of an offence under subsection (1A) is liable on summary conviction-
 (a)	to a fine not exceeding level 4 on the standard scale, or
 (b)	to imprisonment for a term not exceeding three months, or both." 
Section 447 of the 1996 Act states in part:
"(1)  Before instituting proceedings for an offence under section 443 or 444, a local education authority shall consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an eduction supervision order with respect to the child." 
Section 444(1A) was inserted in the 1996 Act by the Criminal Justice and Court Service Act 2000.  
6.	I turn to the Children Act 1989.  Education supervision orders are dealt with in section 36 which states:
"(1)  On the application of any local education authority, the court may make an order putting the child with respect to whom the application is made under the supervision of a designated local education authority."
There is further detailed provision in schedule 3 to the 1989 Act.  By paragraph 12(1) the supervising officer is given duties to: 
(a) advise, assist, befriend, and give direction to-
 (i)	the supervised child; and 
 (ii) 	his parents; 
in such a way as will, in the opinion of the supervisor, secure that he is properly educated."
Before giving any directions, the supervisor is under a duty to ascertain the wishes and feelings of the child and his parents.  By paragraph 13(1):
"Where an education supervision is in force with respect to a child, the duties of the child's parents [under section 7 and 444 of the Education Act 1996 (duties to secure education of children and] to secure regular attendance of registered pupils) shall be superseded by their duty to comply with any directions in force under the education supervision order."
13(2)(b) states:
"While the education supervision order remains in force, the following provisions shall not apply with respect to the child-
 (i)	[section 437] of that Act (school attendance order);
(ii)	[section 9 of that Act] (pupils to be educated in accordance with wishes of their parents);
(iii)	[sections 411 and 423 of that Act (parental preference and appeals against admission decisions)."
Paragraph 14(2) provides that:
"Any failure to comply with a direction given by the supervisor under the education supervision order shall be disregarded if it would not have been reasonably practicable to comply with it without failing to comply with a direction given under the other order."
Paragraph 16 provides for information to be given to the supervisor and paragraph 18 deals with offences.  It states:
"(1) If a parent of a child with respect to whom an education supervision order is in forcer persistently fails to comply with a direction given under the order he shall be guilty of an offence.
 (2)  It shall be a defence for any person charged with such an offence to prove that-
 (a)	he took all reasonable steps to ensure that the direction was complied with;
(b) 	the direction was unreasonable; or
(c)	he had complied with-
 (i)	a requirement included in a supervision order made with respect to the child; or 
(ii)	directions given under such a requirement.
and that it was not reasonably practicable to comply both with the direction and with the requirement or directions mentioned in this paragraph.
 (3)  A person guilty of an offence under this paragraph shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale."
Paragraph 19 makes provision for the local education authority to notify the local authority in the case of persistent failure to comply with any direction and obliges the local authority to investigate the circumstances of the child.  
Background Facts
7.	The crown court found that the appellant's son was not attending school properly.  She was informed of the local authority's powers of prosecution under the Education Act 1996 and in relation to education supervision orders under the Children Act 1989.  The court was shown various documents recording this.  The case stated at paragraph 10 sets out a number of these documents in part. On 8 November 2001, Ms Cotterill wrote to the appellant advising her that if her son's school attendance did not improve:
 "We will be under a duty to consider applying for an Education Supervision Order in accordance with Children's Act before the Family Court and, or institute criminal proceedings in the Magistrates Court." 
On 7 February 2002 Ms Cotterill produced a Pupil Non-Attendance Assessment.  Under the heading "View of EWO and proposed course of action", the report reads:
"The non-attendance planning meeting will assess the support offered by the various parties and what further support can be put in place before court action is taken either in the Magistrates Court or the Family Proceedings Court."
8.	On 26 February 2002, this planning meeting took place.  The minutes show that:
"it was agreed that if a court route were required then a request to the Family Proceedings Court would be made for an Education Supervision Order."  
Under the heading of "Plan of Action" it was again confirmed that:
"If Warren does not attend the Education Department will take action in the Family Proceedings Court.  "
In accordance with that decision an application to the Family Proceedings Court was made on 29 May 2002.  There was no reference to proceedings in the Magistrates Court.  It is stated in paragraph 10(4) of the case stated that there was no intention to do so.
9.	  On 11 July 2002 the first hearing of an application for an Education Supervision Order took place.  The matter was adjourned until 25 October 2002 when the Education Supervision Order was granted.  The appellant was advised by letter dated 26 November 2002 that "Warren is breaching his supervision order", and that the matter would be returned to court.  As stated, on 9 January 2003, the local education authority requested a summons to be issued for the period 29 September to 20 December 2002 alleging an offence under section 444(1A) of the Education Act.  (The case stated in fact refers to section 444(1),  but I take that to be a typographical error). 
10.	In his judgment on abuse of process, the learned judge stated that: 
"The question which is rather more interesting, and upon which the appellant relies is: was it unfair for this appellant to do what the local education authority did?  If so, ought I to stay the proceedings?"  
11.	The learned judge said that there were two questions.  He considered that it may have been somewhat unfair for the authority to do what they did, but only marginally so because the two possible prosecutions had basically to decide the same issue concerning the attendance at school by this appellant's son.  He referred to the burden of proof in the Education Act prosecution which lay on the Crown to the usual criminal standard.  He stated that the prosecution had to prove (a) the child did not attend regularly; (b) the appellant knew that was happening; and (c) she failed without reasonable justification to cause him to turn up for his education.  
12.	The judge set out the provisions of schedule 3, paragraph 18, including the statutory defence which I have quoted.  He stated that, in that sense, the defendant was in a better position because the Crown had to prove the points which he set out from section 444, whereas the position under schedule 3, paragraph 18, is different.  He concluded that there was very little unfairness, but that, if there was any, he should not stay the prosecution.  This was first, because abuse should only be granted in exceptional circumstances and, secondly because here there was no manipulation of the procedure, nor was there any taking advantage of the prosecution of a procedural rule for an improper purpose.  After considering the authorities he refused the application.
13.	I have had helpful skeleton arguments and submissions from both parties.  Ms Brown on behalf of the appellant submits that when the prosecution is deciding how to deal with a truant, or an alleged truant, they have an option.  But, once they go down the educational supervision order route, that option disappears and prosecution under section 444 is ruled out.  She submits that education supervision orders and prosecutions under section 444 serve different purposes.  They enable a distinction to be drawn between situations where parents are able to supervise but fail to do so when a prosecution under section 444 is appropriate, and those situations where the parent is not able to supervise, in which case a supervising officer can be appointed pursuant to an education supervision order.  
14.	Ms Brown points to the duties on the supervising officer under paragraph 12 of schedule 3 to the 1989 Act, which are amplified in the Department for Education's Guidance.  She points to the duties under section 19 to inform the local authority who are required to investigate the circumstances of the child.  Once an election is made as between the possible courses of action under section 444 and section 36 of the respective Acts, she submits that it is unlawful to revert to an alternative course of action, at any rate where the course of action chosen is to seek an education supervision order.  
15.	As a matter of law Ms Brown submits that section 447(1) of the 1996 Act does not apply to the situation where an education supervision order has been applied for and obtained.  She submits that, although that subsection contemplates a section 444 prosecution subsisting with an application for an education supervision order, that relates to the consideration by the local authority before instituting proceedings.  She relies on the fact that once an education supervision order is in place, by paragraph 13 to schedule 3 of the 1989 Act, the parental duty under section 444 is superseded by a duty to comply with directions under the education supervision order.  She also relies on the duties of the supervising officer who, she submits, is effectively in the driver's seat with respect to getting the child to school, and on the different penalties that can be enforced on a parent by section 18 for breach of directions given under an education supervision order.  
16.	With regard to fairness, Ms Brown submits that the period of the offence charged included a substantial period after the 25 October when the education supervision order was imposed.  She submits that the non reliance by the prosecutors on the period after 24 October showed that they accepted that one could not have a section 444(1A) offence once an education supervision order is in place.  Effectively, to allow the prosecution not to rely on that period changes the nature of the offence charged and, in substance, amends the complaint in a way that is not permissible.
17.	Ms Brown also submits that the appellant was told that proceedings were brought through breach of the supervision order, and that, after the initial communications in which the options of an education supervision order and prosecution were put, the appellant considered the former was her chosen route.  She relied on the differences regarding the defences and, in particular, on the difference regarding of penalty because, under section 444(1A) a custodial sentence can be imposed as well as a fine.
18.	Mr Auburn, on behalf of the prosecuting council, submitted that section 447 does not state that if an LEA plans to apply for an education supervision order, it should not also institute a truancy prosecution under section 444.  The section clearly says the opposite.  He relied on the words "instead of or as well as instituting the proceedings"  to show that the local education authority can use either or both of these mechanisms.  
19.	Mr Auburn's submission is that the legislation provides for this situation, and provides that local education authorities may do what was done here, so it was neither unlawful nor unfair to conduct a prosecution in the manner contemplated by the legislation.  He showed me the context of the legislation, the possibility of school attendance orders and the whole gamut of possibilities open for dealing with a truanting child.  He submitted that there was nothing inconsistent with this in the Department of Education Guidance which also referred to "instead of or as well as".  He submitted that in this case the local education authority was willing to try an education supervision order to see if it would work.  It proved not to work, and so it took the option of prosecuting. 
20.	He submits that, by 24 October 2002, an offence under section 444(1A) was complete.  At that stage it would have been perfectly appropriate both to seek an education supervision order and to prosecute under section 444.  Accordingly, he submits, if it was lawful to do that in October 2002, it remained lawful and it was difficult to see why it became wrong, unfair or duplicitous to hold back the prosecution of the completed crime.
21.	With regard to abuse of process, Mr Auburn submits and cites the well-known authorities, in particular Attorney-General's Reference (No 2 of 1990) [1992] 1 QB 630; Environment Agency v Stanford [1998] COD 373 and R v Rotherham JJ ex p Brough [1991] COD 89 that an abuse of process should only be made in exceptional circumstances and that, even an ill-advised prosecution, is not necessarily an abusive one.  
22.	In the present case Mr Auburn submits that there was no unfairness, no promise or representation to the appellant that the respondent would not institute a prosecution under section 444.  The respondent has not manipulated any process to deny a defence or a procedural safeguard otherwise open to it, and the Crown Court concluded that, on the basis of evidence received, that the decision of the prosecuting authority was not made for any ulterior motive. 
23.	With regard to the point made as to the different defences and the different penalties, the submission is that it would be perfectly proper to bring both charges and, in any event, as far as the defences are concerned, the defence of "without reasonable justification" under section 444(1A) is substantially similar to that under the Children Act.  
24.	With regard to the separate penalty, it is submitted that where there are two penalties, one lesser than the other, it cannot be per se abusive to choose the more serious penalty.  As to the argument that the respondent in effect amended the complaint by not relying on matters after 24 October, Mr Auburn submits that it only relied on some of the facts which sufficed to constitute the offence and that an appeal by way of re-hearing was entitled to proceed in that way.  He cited the case of Hingley-Smith v DPP [1998] 1 Archbold News 2, DC and Bussey v DPP 1989] 1 Cr App R (S) 125 in which it was held that the crown court had power to determine an appeal on a factual basis which differed from that adopted by the Magistrates' Court.
Conclusions 
The Law.  
25.	Section 447(1) expressly contemplates that a prosecution under section 444 might be appropriate as well as, ie in addition to, an application for an education supervision order.  How does this fit with the argument based on section 13 superseding the duty of a child's parents to secure regular attendance at school once an education supervision order is in place?  At first blush, if a person is not under a duty to do an act, it must follow that they should not be liable for criminal prosecution for not doing so.  
26.	The express words of section 447 of the 1994 Act, however, contemplate the deployment of both an educational supervision order and a prosecution.  To that extent, they contemplate that both might occur.  If paragraph 13 of Schedule 3 to the 1989 Act states otherwise, its words must be understood as not precluding such a prosecution, notwithstanding the supersession of the duty.  
27.	As a matter of process, as Mr  Auburn conceded, however, a prosecution relying on facts during the currency of an education supervision order would face difficulties.  The parent would be entitled to say, "I am not under a section 444 duty any for more and you should use the paragraph 13 process".  I have concluded that, as a matter of law, the argument based on paragraph 13 cannot defeat the express words of the later Act, notwithstanding the difficulty of fitting the two together.  But, I take the view that this would found an argument that there had been an abuse.
28.	In the present case, where Mr Auburn was not relying on events after 24 October, this does not arise, although it arises in respect of the second question, the abuse of process question, to which I now turn.
Abuse of Process 
29.	On this aspect of the case, although I have not found the interplay of paragraph 13 and section 447 easy, I accept the respondent's arguments that there is no abuse in the circumstances where there was only reliance on facts before 24 October.  There is no suggestion of ulterior motive, the defences are substantially the same and, for the reasons given by the learned judge, the defendant may be in a better position with regard to defences under section 444(1A) because of the burden of proof.  
30.	With regard to the different penalties, the appellant is exposed to a more severe penalty but, if it is open to bring such proceedings, as I have concluded it is in respect of the period before 24 October, then that is not an abuse.  I accept the arguments based on Hingley-Smith and Bussey that what is happening here is not an attempt to amend the complaint.  
31.	For these reasons I answer the questions stated for this court as follows:
"1.  No.
2.  Yes."
The matter will, therefore, be remitted back to the Inner London Crown Court for further consideration.  Any applications?
32.	MS BROWN:  No, thank you, my Lord.