QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF P||(CLAIMANT)|
|LIVERPOOL CITY MAGISTRATES||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
THE DEFENDANT was not represented.
Crown Copyright ©
"(1) 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."
Subsection (8B) provides:
"If on the trial of an offence under subsection (1A), the court finds the defendant not guilty of that offence but is satisfied that he is guilty of an offence under subsection (1), the court may find him guilty of that offence."
"We have considered the burdens placed upon the prosecution and defence and are of the opinion that the duty of a parent to ensure regular school attendance is almost strict liability and it is for the defence to show on the balance of probabilities that [the claimant] has taken all reasonable steps and to explore all possible avenues to ensure that [her son] is receiving regular schooling.
We have some sympathy with [the claimant] in that she has made attempts to secure attendance at school and has kept in regular contact with the school in particular and has co-operated, in part, with the Education Department. Further, there is unchallenged evidence of attempts to contact other agencies.
We are however of the opinion that every available avenue has not been explored in that there is no evidence of [the claimant's] adopting or attempting methods of ensuring attendance such as:
(1) Asking [her son's] father to assist; the court acknowledging that [the claimant] is a single parent but that [the father] was present at one meeting with the Education Department,
(2) Enquiring of Social Services whether education care proceedings were applicable or when they would become applicable,
(3) Not asking for alternative forms of education to be investigated.
Whilst we find [the claimant] guilty of this offence, as indicated, we do have considerable sympathy.
We would like to make the following observations. They are observations and not directions as we acknowledge that we have no authority to make directions.
This has not been an easy case to determine. We have the interests of [the child] as our paramount consideration even though the proceedings are brought against [the claimant]. We feel that there is a need for each of the agencies involved to speak to each other in a more proactive manner than has been adopted to date and for there to be increased agency interaction. We feel there should be increased Social Services and that the involvement of educational psychologists or educational care proceedings should be given serious consideration."
At paragraph 18 of the judgment Thomas LJ said this:
"I have taken the view in listening to the submissions made before us by Mr Compton [who was counsel for the appellant borough] and in the skeleton argument that he put before us that there are a number of questions we should not deal with. The first relates to the question of the burden of proof as to reasonable justification under section 444(1A). That I consider should be left for argument on another occasion; we were provided with no authorities and we do not have the benefit of the argument from the respondent."
At paragraph 19 he went on:
"Secondly, it was clear to me on reading the papers in the case, and from the facts that I have enumerated, that the issue at the heart of this case was a question of fact."
The second question to which I referred simply did not arise.
"It seems to me that the principles to be derived from Fairbanks and Maxwell [which were the cases which they were considering in relation to alternative verdicts] are applicable to the exercise of the discretion under (8B)."
Maxwell is reported at (1989) 88 Cr.App.R 173 and Fairbanks is reported at (1986) 83 Cr.App.R 251. Thomas LJ went on:
"It is important to stress that the public interest often requires that a person charged with a more serious offence should, if that is not made out, none the less be convicted of the lesser offence, if that is made out. The interests of justice are not served by acquittals in such circumstances. However, the test is the interests of justice."
At the conclusion, in paragraph 27, he said this:
"Interesting questions...on what is meant by the interests of justice...do not arise in the circumstances of this case and I need say no more than to stress the importance of the offence under 444(1) being treated as an offence of absolute liability and that being of paramount importance, for the reasons set out in paragraph 27 of the judgment of Maurice Kay J. in Barnfather to which I have referred. Magistrates would be failing in their duty, if the offence was made out, if they then failed to convict in such circumstances."
"Where any proceedings in a criminal cause or matter are determined before the Divisional Court of the Queen's Bench Division...the court may make a defendant's costs order in favour of the accused."