QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE ELIAS
| ALISON BARNFATHER
|- and -
|(1)LONDON BOROUGH OF ISLINGTON
(2)SECRETARY OF STATE
FOR EDUCATION AND SKILLS
Smith Bernal Wordwave Limited, 190 Fleet Street
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Official Shorthand Writers to the Court)
Jonathan Auburn (instructed by Legal Services, L. B. Islington) for Defendant (1)
MR B Hooper & Clive Lewis (instructed by Treasury Solicitors) for Defendant (2)
Crown Copyright ©
Mr Justice Maurice Kay:
"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."
The Appellant was not present in the Magistrates Court when she was convicted. She subsequently appealed to the Inner London Crown Court. The appeal was listed to be heard on 8 July 2002 by His Honour Judge Van der Werff and two lay justices. Counsel for the Appellant raised a preliminary issue as to whether the offence as prescribed by section 444(1) is compliant with the European Convention on Human Rights and Fundamental Freedoms (ECHR). The case for the Appellant was and is that section 444(1) is not ECHR compliant because it is a strict liability offence which does not require proof of any knowledge or fault on the part of the parent. The Crown Court ruled that the offence is ECHR compliant. However, the appeal to the Crown Court remains unresolved because of the present appeal to the Administrative Court by Case Stated in relation to the preliminary issue. The questions posed by the Case Stated for the opinion of this court are:
"1. Is section 444(1) of the Education Act 1996 as interpreted by the higher courts prior to the enactment of the Human Rights Act 1998 compatible with the provisions of the European Convention on Human Rights?
2. If not, can the section be reinterpreted compatibly with the Convention pursuant to section 3 of the Human Rights Act 1998 and, if so, how?"
The statutory framework
"The parent of every child of compulsory school age shall cause him to receive efficient full time education suitable –
(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have,
either by regular attendance at school or otherwise."
By section 8 compulsory school age runs from the age of 5 to the age of 16.
"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."
Thus, the offence under section 444(1) is the less serious offence and can properly be described as an offence of strict liability. The new offence under section 444(1A) is more serious and requires proof of knowledge on the part of the parent and an absence of reasonable justification. The respective seriousness of the two offences is reflected in the provisions for punishment. The maximum punishment in relation to section 444(1) is a fine "not exceeding level 3", which is presently fixed at £1000 on the standard scale. The maximum punishment in relation to the offence under section 444(1A) is a fine "not exceeding level 4", that is £2500, and/or imprisonment for a term not exceeding three months.
"(1) Before instituting proceedings for an offence under section ….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 education supervision order with respect to the child.
(2) the Court –
(b) before which a person is charged with an offence under section 444,
may direct the local education authority instituting the proceedings to apply for an education supervision order with respect to the child unless the authority, having consulted the appropriate local authority, decide that the child's welfare will be satisfactorily safeguarded even though no education supervision order is made."
"(3) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school
(a) with leave,
(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or
(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.
(4)The child shall not be taken to have failed to attend regularly at the school if the parent proves –
(a) that the school at which the child is a registered pupil is not within walking distance of the child's home, and
(b) that no suitable arrangements have been made by the local education authority ….for any of the following-
(i) his transport to and from the school,
(ii) boarding accommodation for him at or near the school, or
(iii) enabling him to become a registered pupil at a school nearer to his home."
"Walking distance" is defined by sub-section (5). There is a further provision in relation to children of no fixed abode.
"If, on the trial of an offence under sub-section (1A), the court finds the Defendant not guilty of that offence but is satisfied that he is guilty of an offence under sub-section (1), the court may find him guilty of that offence."
The existing case law on section 444(1)
"I would only add that whilst sentence is not a matter for this court, it seems to me that if the justices believed the parents, as they apparently did, this would look as if it were a case for absolute discharge "
Cantley J added that:
"If they thought it appropriate, the justices could absolve the parents not only from any penalty but from any costs."
"However hard it may appear to be, in my judgment, the construction placed upon this statutory provision in the authorities to which I have referred, makes the conclusion inescapable that the circumstances of this case did not give rise to unavoidable cause for the child's absence from school. "
Lord Justice Rose expressed some surprise that the mother had been prosecuted and added that:
"the justices might very well think that the appropriate penalty…is one of absolute discharge."
The human rights issue.
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
At fist sight it is not obvious how Article 6.2 might impact on the issue of a strict liability offence. Its subject matter appears to be procedural and evidential rather than substantive. It is therefore necessary to refer to the Strasbourg Jurisprudence upon which Mr. Owen bases his submissions.
"Any act of smuggling and any undeclared import or exportation of goods falling within the category of goods which are prohibited "
By Article 392(1) of the Customs Code a person in possession of contraband goods "shall be deemed liable for the offence". Thus, although the offence does not necessarily require possession, where possession is established Article 392(1) applies. It was ascertained that, whilst Article 392(1) appears to provide for an irrebutable presumption, its severity has been to some extent moderated by decisions of the French courts which have recognised that the accused may exculpate himself by establishing force majeure resulting "from an event responsibility for which is not attributable to him and which it was absolutely impossible for him to avoid". The judgment of the Strasbourg Court contains these passages:
"26. Mr. Salabiaku maintained that the 'almost irrebutable presumption'….was incompatible with article 6.
27….in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention, and accordingly, to define the constituent elements in the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States. However, the Applicant was not convicted for mere possession of unlawfully imported prohibited goods. Article 392(1) of the Customs Code does not appear under the heading 'classification of customs offences' but under that of 'criminal liability'. Under this provision a conclusion is drawn from a simple fact, which in itself does not necessarily constitute a petty or a more serious offence, that the 'criminal liability' for the unlawful importation of the goods, whether they are prohibited or not, or the failure to declare them, lies with the person in whose possession they are found. It infers therefrom a legal presumption on the basis of which (the French Courts) found the Applicant guilty of smuggling prohibited goods….
28. This shift from the idea of accountability in criminal law to the notion of guilt shows the very relative nature of such a distinction. It raises a question with regard to Article 6.2 of the Convention. Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider, paragraph 2 of Article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words 'according to law' were construed exclusively with reference of domestic law. Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law. Article 6.2 does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
The Court then went on to consider whether such limits were exceeded in the case before it but concluded that they were not because of the way the French courts had embraced, for example, the concept of force majeure.
"liability of a fine can be imposed on an employer for violation of….sections 7 and 8 (i) and (iii) when the driving was carried out in his interest, although the violation cannot be imputed to his intent or negligence."
Mr. Hansen sought to rely on Article 6.2. The Court expressly adopted the passages in paragraphs 27 and 28 of the judgment in Salabiaku, in particular the references to "under certain conditions" and "within reasonable limits". However, it concluded that the Danish law was "well within the reasonable limits which take into account what is at stake". The complaint was therefore held to be inadmissible. Nevertheless, Mr. Owen relies upon the decision as an example of the Strasbourg Court scrutinising a strict liability offence by reference to Article 6.2 and the "reasonable limits test" set out in Salabiaku.
The diligent researches of counsel have not unearthed any subsequent case or leading text in which Hansen has been considered. Salabiaku has been considered in a number of cases including by the House of Lords in Regina v. Lambert  3 WLR 206 in which Lord Clyde, when dealing with Article 6.2 in the context of the burden imposed upon a defendant by section 28 of the Misuse of Drugs Act 1971, quoted extensively from Salabiaku, using it as support for a number of propositions, including this passage (paragraph 150):
"The words 'according to law' in Article 6.2 do not merely refer to domestic law, but also to the rule of law, and accordingly certain limits must be observed in the extent to which presumptions of fact or law are acceptable. Those limits must be reasonable limits 'which take into account the importance of what is at stake and maintain the rights of the Defence' Salabiaku paragraph 28…"
"in principle, the Contracting States, may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or negligence" -
does not seem to me to be alluding to conditions deriving from Article 6.2 which may impact on the substantive elements of an offence. Nor, in my judgment, does the passage in the speech of Lord Clyde in Lambert, to which I have referred, adumbrate any wider ambit of Article 6.2.
"In determining the essentials of an offence, courts should also keep in mind the distinction between procedural guarantees provided by Article 6(2) and the substantive elements of the offence, a distinction that the Strasbourg Court has now acknowledged in the civil sphere in Z & Ors v. United Kingdom  34 EHRR 97, at 138, paras 100-101, when reviewing its decision in Osman v. United Kingdom  29 EHRR 245, at paras 138-139. As Paul Roberts has argued, in an article entitled The Presumption of Innocence Brought Home? Kebilene Deconstructed  118 LQR 41, at 50:
'Article 6(2) has no bearing on the reduction or elimination of mens rea requirements, and is therefore perfectly compatible with offences of strict or even absolute liability.'"
I interpolate at this point that, in relation to the ambit of Article 6.1 in a civil context (the subject-matter of Z and Others and Osman), the House of Lords has since the hearing of the present case emphasised the procedural as opposed to the substantive scope of Article 6: see Matthews v. Minister of Defence  2 WLR 577.
"We should add that, so far as concerns the ECHR, there is nothing objectionable in principle with strict liability offences….In our judgment, therefore, there is nothing in the ECHR and in particular Article 7 which requires us to reach a different conclusion from that which we expressed …"
That conclusion was that the offence under section 362(1)(a) is one of strict liability. I again observe that, so far as Article 6.2 is concerned, this passage is strictly obiter.
"At present, each school day, around 50,000 pupils do not attend school, those absences being unauthorised, and 7.7 million school days a year are lost. Overall unauthorised absence has remained constant at approximately 0.7 per cent since attendance data were first published in 1994. The Youth Cohort Study (2001) found that 34 per cent of year eleven pupils had been absent for at least a day or lesson with no good reason and 4 per cent of these children admitted to unauthorised absence for more than one day at a time…..Unauthorised absence from school severely effects young people's life chances. Unauthorised absence is inextricably linked to educational under achievement. Pupils who persistently have unauthorised absences have been found to be much more likely to achieve no GCSEs A* to G than young people who regularly attend school…only 10% of pupils who had persistent unauthorised absence achieve five GCSEs A* to C compared with 58% of pupils who had no truancy. Pupils with unauthorised absences are less likely to remain in education, training or employment after leaving school. There is also a link between crime and unauthorised absences. A Youth Justice Board Survey in 2002 found that two thirds of children who regularly missed school without permission had offended as compared to less than one third of children who attend regularly."
Against this background it cannot be disputed that the offence prescribed by section 444(1) seeks to achieve a legitimate objective, namely ensuring that parents fulfil their responsibility to secure that registered pupils attend school regularly. The more difficult question is whether the imposition of criminal liability without a fault requirement goes further than is necessary to achieve that legitimate objective.
"The offence is simple and relatively easy to prove. There is no liability if the child has leave to be away from school or is prevented from attending by illness or other unavoidable cause…and there is a defence if the child does not live within walking distance…the penalty is limited to a fine. Prosecutions can only be brought by a Local Education Authority. This straightforward, easily provable offence, with limited penal consequences, is considered to be a useful tool within the local education authority armoury to assist them in making parents face up to and discharge their responsibilities and enforcing the parental duty to ensure that children receive full time education."
She then invites the court to view section 444 (1) in context. The predecessor to the Department for Education and Skills issued guidance in Circular 10/99 which states that schools should contact parents on any day a registered pupil of compulsory school age is absent without explanation, including cases where the pupil skips lessons after registration. Further guidance is given in Circular 11/99, which states that local education authorities "must judge whether and when to prosecute on a case by case basis". The statutory context is also important. Only a local education authority may institute a prosecution (section 446) and, by section 447(1):
"Before instituting proceedings for an offence under section…444, a local education authority shall consider whether is would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child."
Moreover, the court before which a parent is charged under section 444(1)
"may direct that the local authority instituting the proceedings apply for an education supervision order with respect to the child unless the authority, having consulted the appropriate local authority, decide that the child's welfare will be satisfactorily safeguarded even though no education supervision order is made." (section 447(2)).
The suggestion is that all this renders the strict liability offence reasonable and proportionate.
Mr Justice Elias:
Strict liability offences
"In their Lordships' opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants' counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act." (p.14)
Article 6.2 and strict liability offences.
Second, Article 6.2 itself provides for the presumption of innocence. The elements of the offence should have to be established by the prosecution. But in this case they were; they must prove the requisite non-attendance and, at least in relation to some of the authorised absences, that these did not justify the absence. As Mr Owen realistically accepted, his submission amounts to importing into, and as an element of, the presumption of innocence an additional presumption that there will be no liability without blame. This presumption is that a state cannot pass criminal laws which simply focus on consequences –as strict liability offences typically do- save where the elimination of any lack of fault defence can be specifically justified as a proportionate response to the objectives which the law is designed to achieve.
"The offence is simple and relatively easy to prove……This straightforward, easily provable offence, with limited penal consequences, is considered to be a useful tool within the local education authority armoury to assist them in making parents face up to and discharge their responsibilities and enforcing the parental duty to ensure that children receive full time education."