CO/3946/2007 
Neutral Citation Number: [2007] EWHC 2584 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 16 October 2007
 
B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE OPENSHAW 
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Between: 
HAMPSHIRE COUNTY COUNCIL
Claimant 
v 

E 
Defendant 
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Miss Zosia Keniston (instructed by Legal Practice, Hampshire County Council) appeared on behalf of the Claimant
The Defendant was not represented and did not attend
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J U D G M E N T
1.	LORD JUSTICE RICHARDS:  This is an appeal by way of case stated against a decision of the New Forest Justices, sitting at Lyndhurst Magistrates' Court on 31 January 2007, by which they dismissed an information laid by the appellant, Hampshire County Council, against the respondent, Mrs E, alleging an offence of failure to attend regularly school, contrary to Section 444 (1) of the Education Act 1996.  Section 444 (1) 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."
It is provided in sub‑section (3) that ‑
"The child shall not be taken to have failed to attend regularly at the school by reason of his absence at the school ‑
 (a) with leave, [or] 
.....
 (c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs."
That defence is not directly in issue in this case.  
2.	The information was laid against the respondent as the parent of a 15‑year old boy.  The facts found by the justices are set out as follows in the case stated at paragraph 2:
" .....
a) The child concerned recorded 53 unauthorised absences from school during the period stated and had thus failed to attend regularly at his school.
b) The respondent had made substantial and significant contact with the school by both telephone and e.mail regarding her son's absence from school.  This was established by the evidence of Sharon Allsop, Education Welfare Officer.  The respondent also had co‑operated entirely with the school and the various other agencies that had become involved in the situation.
c) The child concerned had behaved violently towards the respondent in that:
i) He threw furniture at the respondent and his sister 
ii) He hit the respondent and threatened to hit his sister 
iii) He threw a computer monitor at the respondent 
d) The respondent has discussed her son's behaviour at home with the Education Welfare Officer on numerous occasions.
e) It was accepted by both parties that the child concerned was taking controlled drugs and abusing alcohol on a regular basis and the education welfare officer had participated in referrals with the respondent and the school to numerous services and agencies with a view to trying to get the child concerned back to school.  The police and the youth offending team were also involved.
f) The behaviour of her son over the last two years had caused the respondent to seriously consider taking her own life and she had taken an overdose in the past.
g) The respondent had taken every reasonable step to try and get her son to go to school."
3.	The respondent contended before the justices that she was entitled to rely on the offence of duress of circumstances in that she feared that if she continued to try to force her son to go to school both she and her daughter would be at risk of death or serious injury from him.  She was not able to force her son to go to school due to the pressure placed upon her from his wrongful threats or violence.  She had at all times acted reasonably and proportionately in order to avoid a threat of death or serious injury.  She was compelled to act as she did because she reasonably believed that serious injury would follow if she did not, and a reasonable person would respond in the same way.  
4.	The justices recorded that there was no response from the appellant to those contentions though some suggestion was advanced that the defence of duress of circumstances might not be available in relation to this offence.  The justices, having referred to a number of authorities, expressed their conclusions as follows:
"7 We were of the opinion that ‑
a) The respondent had acted reasonably at all times.  She had sought and obtained help and had taken every step that a reasonable parent might be expected to take.  It was impossible for the respondent to physically force her son to attend school.
b) The respondent acted as she did because she reasonably perceived a threat of serious physical injury that she or her daughter might face from her son if she tried to force her son to go to school.  This was a realistic and imminent fear bearing in mind that her son had both used and threatened violence towards her and had also threatened violence towards her daughter.  The level of the actual and threatened violence was continuing to escalate.  The respondent's concerns were heightened further by her son's use of both alcohol and controlled drugs.
Accordingly we were satisfied that the respondent acted under duress of circumstances."
5.	The question posed for the opinion of the High Court is this:
"Whether on the evidence adduced before us we were entitled to find that the respondent had acted under duress of circumstances in not ensuring her son's regular attendance at school."
6.	The appellant council has made clear that whilst it seeks a ruling on that question and contends that the justices were not entitled to find as they did, it does not seek to re‑open the proceedings before the justices.  In those circumstances the respondent has chosen not to participate in this appeal.  We have heard submissions only from Miss Keniston on behalf of the council. 
7.	The offence under Section 444 (1) of the 1996 Act is one of strict liability (see Barnfarther v Islington Education Authority [2003] EWHC 418 Admin, [2003] 1 WLR 2318.  
8.	In her original skeleton argument Miss Keniston appeared to concede that the defence of duress of circumstances, as it has been termed, was available in principle in relation to a charge under Section 444 (1).  That concession was based on the general statement by Lord Justice Rose in R v Abdul‑Hussein and Others [1999] Crim LR 570 that ‑ 
"Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes except murder, attempted murder and some forms of treason."
What Lord Justice Rose said in that case was cited, in turn, by Lord Justice Brooke in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 at 235, which is one of the authorities referred to by the justices in the case stated.  
9.	In a late change of tack, Miss Keniston has contended before us that the defence cannot be applied to Section 444 (1) in the way accepted by the court below because, as she puts it, the actus reus of the offence is being the parent of a child who has failed to attend school regularly.  For duress to be a relevant consideration, the duress complained of would need to be directly related to the actus reus of the offence; for example, related to being a parent of the child.  It is said that the respondent's defence was that her son's behaviour prevented her from ensuring his attendance at school.  That is not relevant to the actus reus of the offence and accordingly should not have succeeded as a valid defence.  Miss Keniston points out that there is the defence afforded under the statute by Section 444 (3), which I have already mentioned, but that related expressly to the child, not to the parent.  
10.	I am reluctant to decide this point on the basis of a late short argument from one side and without the benefit of contrary submissions.  I have to say, for my part, that I am very doubtful whether the terms of Section 444 (1) admit of the possibility of a defence of duress of circumstances at all.  The sub‑section looks not to the conduct of the parent or even to the parent's failure to act, but simply to whether the child has failed to attend regularly at school and whether the defendant is the parent of that child.  There is no obvious scope for a defence that the parent acted or failed to act by reason of some necessity or duress of circumstances.  In my view, this was not the kind of offence that Lord Justice Rose can have had in mind when formulating his broad proposition in Abdul‑Hussein as to the cases in which the defence is available.  In Abdul‑Hussein he went on to say that ‑
"Imminent peril of death or serious injury to the defendant or those to whom the defendant had responsibility is an essential element in the defence and that the perils operated on the mind of the defendant at the time that he commenced the otherwise criminal act so as to overbear his will."
11.	That reference to the will being overborne reinforces my concern about the availability of the defence in the context of a strict liability offence of this nature.  
12.	It is not however necessary to reach any decision on the point because, for reasons to which I will turn next, I take the view that this appeal should succeed even on the assumption that the defence is available.  In my judgment, that is a sufficient basis for dealing with the matter in the circumstances with which this court is faced and it would not be appropriate to base the decision on the wider point of principle.  
13.	If however some of what I say about the application of principles as to duress of circumstances to the facts of this case seem a little artificial that may be a further indicator that the assumption on which I propose to proceed is itself mistaken.  
14.	It is accepted in the authorities that the clearest and most authoritative guide to the relevant principles is afforded by R v Martin [1989] 1 All ER 652.  In that case Mr Justice Simon Brown, giving the judgment of the court, expressed the principles as follows:
" ..... first, English law does, in extreme circumstances, recognise a defence of necessity.  Most commonly this defence arises as duress, that is pressure on the accused's will from the wrongful threats or violence of another.  Equally however it can arise from other objective dangers threatening the accused or others.  Arising thus it is conveniently called 'duress of circumstances'.  
Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left of the jury who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because, as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?  If the answer to both those questions was yes, then the jury would acquit   the defence of necessity would have been established."
15.	Miss Keniston in her written submissions has cited R v Pommell [1995] 2 Cr App R 607 in which Martin was applied.  Whereas most of the cases on duress of circumstances involved driving offences, Pommell related to a charge of unlawful possession of a firearm.  The defendant said that he had taken the gun off another man to stop him using it and that he intended to hand it in to the police.  It was held that the defence was open in principle to the defendant in respect of the acquisition of the gun, and that the jury would have to be directed to determine the two questions identified in Martin.  That test was not however necessarily appropriate for determining whether the defendant continued to have a defence in respect of continuing possession thereafter.  The defendant had to desist from committing the crime as soon as he reasonably could and the jury would have to consider, in the light of his delay in handing the gun over to the police, whether the duress had ceased to operate.  
16.	We have also been referred to Director of Public Prosecutions v Mullally [2006] EWHC 3448 Admin, a case in which the defendant advanced a defence that she was acting under duress, namely to avoid an assault, when she drove a car having consumed excess alcohol.  The court applied what can be seen to have been the Martin two‑stage test, emphasising however that the threat must be effective at the time when the crime is committed and that there must be no available escape route or other means of dealing with the situation that a reasonable person would take.  It was held on the facts that the arrival of the police had removed the threat of serious violence and that the defendant's action ‑ continuing to drive thereafter ‑ had fallen demonstrably outside the response of a reasonable person.
17.	Miss Keniston submits that when the principles found in those authorities are applied to the facts of the present case, the justices' decision cannot be sustained, and that the conclusion they reached was perverse.  It is submitted that from an objective standpoint the respondent did not act reasonably and proportionately to avoid a threat of death or serious injury.  Further the son's behaviour did not amount to a threat of death or serious injury.  The throwing of the furniture at the respondent and the sister and throwing a computer monitor at the respondent did not constitute or give rise to a risk of serious injury.  The alternative, it is submitted, is that even if on occasion the child behaved in such a way as to give rise to a relevant complaint, the defence of duress of circumstances cannot be said to apply to all unauthorised absence from school, there being 53 unauthorised absences in total out of a possible 118 during the period in question which was May to September.  
18.	It is submitted that Mullally supports the proposition that where a defence of necessity is relied upon it should be open to the prosecution to defeat it by showing that ‑ even if an act was initially committed through necessity ‑ there comes a point when the necessity to continue the criminal action ceases, and that the respondent should not be entitled to rely on the defence in a general way in respect of this charge.  It is also submitted that a person of reasonable firmness would not have good cause to believe that death or serious injury would occur as a result of attempts to ensure the child's attendance at school, not least because over a four‑month period, to which the prosecution relates, there were 65 occasions when the child did attend school.  
19.	Although the respondent clearly struggled with her son's behaviour, it is submitted that the justices did not have evidence before them that the bad behaviour complained of arose from the child being asked to go to school, or that it worsened when the child was asked to go to school.  The fact that the child behaves badly and violently at times does not justify the respondent's claim that she acted under duress of circumstances.  In particular it is said that the justices did not hear evidence of specific occasions of violence in response to requests by the respondent for her son to go to school.  
20.	The various criticisms made of the justices' conclusion are, in my judgment, well founded.  It is clear from the findings of fact that the respondent had very serious difficulties with her son.  It is unsurprising that they felt sympathetic to the respondent, and they did find that she had taken every reasonable step to try to get him to go to school.  In itself, however, the taking of reasonable steps is not a defence to this strict liability offence, though it constitutes extremely powerful mitigation.  
21.	In order to go further and make good a defence based on duress of circumstances, on the assumption that that defence is available at all, a very high hurdle has to be overcome.  The justices have to be satisfied, first, that the failure of her son to attend regularly at school was or may be the result of reasonable fear on the respondent's part that if she tried to get him to school she or her daughter would be at risk of death or serious injury at his hands.  In my view the findings of fact did not get near to justifying such a conclusion.  
22.	The incidents of violence referred to are not specifically linked to attempts to get the son to go to school.  Nor is there enough in the findings ‑ which we are told fairly reflect the evidence ‑ to show that the violence used by the son did give rise to the risk of death or serious injury.  Moreover it is impossible to see how duress of circumstances can have operated throughout the relevant period, especially given that the son attended school on more days than not during that period.  Even if one could imagine an incident giving rise to a decision not to press the son into going to school on a particular day, it would be fanciful to conclude ‑ on the facts as they stand ‑ that the fear of violence operated, or may have operated, continually on the respondent's mind so as to overbear her will throughout the period of failure to attend regularly.  Nor does it seem, in truth, that the threat of violence had such an effect since the respondent clearly resorted to other measures and was found to have taken every reasonable step to try to get her son back to school.  This is perhaps the point in Miss Keniston's alternative argument, that it was contradictory to find the offence had been made out at the same time as finding that every reasonable step had been taken to try to get the son back to school.
23.	Even if the subjective part of the test was satisfied, the Bench, in my view, failed to have reference to the objective part of the test.  I do not think that a reasonable person would have responded to the threats of violence, as the Hampshire Justices held, by allowing the child not to attend regularly at the school.  
24.	Accordingly I accept the submission of the appellant council that it was not reasonably open to the justices to reach the conclusion they did in this case.  I would answer the question they pose in the negative.  In the circumstances, since it is not intended to pursue the particular case before the justices, it seems to me that no further order is required.
25.	MR JUSTICE OPENSHAW:  I agree.
26.	LORD JUSTICE RICHARDS:  That is right, Miss Keniston, is it not?   We do not need to make any further no order.
27.	MISS KENISTON:  No.
28.	LORD JUSTICE RICHARDS:  That means also that there is no order as to costs.
29.	MISS KENISTON:  No application.
(Court re‑convened for the following)
30.	LORD JUSTICE RICHARDS:  Miss Keniston, I think you have a further application, a reporting restriction.
31.	MISS KENISTON:  Yes.  I apologise.  I should have flagged that up at the end of my submissions.  It is a reporting restriction order ‑ Section 39 ‑ that was made in the lower court that has not been marked up.  I would ask for a Section 39 order to be made in respect of the child.  He is 16 years of age, and his name should not be published in any reporting of these proceedings.
32.	LORD JUSTICE RICHARDS:  Yes.  We will make an order under Section 39 of the Children and Young Persons Act to prohibit naming or identifying of the child.  That means that the reference in my judgment to the mother needs to be cut out ‑ I think in the first paragraph I named her.  That can be cut out.  She can be referred to as the respondent.  The case should be reported under the title Hampshire County Council v E.  Does that deal with everything that is required for the press?
33.	REPRESENTATIVE OF PRESS:  We can refer to the county council.
34.	LORD JUSTICE RICHARDS:  No problem.  That is sufficient, is it?
35.	MISS KENISTON:  No.  That is sufficient.