England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14th April 2010

MR JUSTICE CRANSTON:

Introduction

1. In this appeal by way of Case Stated the Youth Court asks our opinion on whether a teacher who teaches at a school for children with special needs, including those with behavioural problems, impliedly consents to the use of violence against him. In other words the question continues, should the principles which apply in cases of contact sports be applied to incidents within institutions dealing with those with special needs.

Background.

2. The background is as follows. The appellant, who is now 15 years old, appeals against a decision of the Chester Youth Court, which convicted him in mid 2009 of two counts of common assault, by beating, against Mr Ian Cochran, contrary to Section 39 of the Criminal Justice Act 1988. Mr Cochran has been a teacher for 31 years, and at the time of the assault was the deputy head of the school where the appellant was a pupil. It is a Community Special School teaching children with emotional, behavioural and social needs. The appellant was described by the headteacher of the school as a challenging pupil who had not settled into the school since beginning the academic year September 2008. In the headteacher's description his acting up behaviour had increased, he was quite angry, and he had a heightened status of arousal and low tolerance. He had been risk assessed and it was known that he did not like to be physically touched.
3. A report from a consultant community paediatrician informs us that the appellant had been diagnosed with attention deficit hyperactivity disorder ('ADHD') and commenced on medication in November 2008. That is a disorder characterised by inattention, impulsivity and hyperactivity, but can be managed by a combination of emotional and behavioural strategies both at home and school. In her report the consultant community paediatrician explains that the appellant had conduct disorder and had been in trouble with the police on many occasions for getting involved in fights.
4. The incidents which led to the prosecution were three fold. The first occurred on 4 March 2009. Mr Cochran was teaching a small group of three pupils, the appellant being one. Some 5 to 10 minutes into the lesson the appellant picked up a hammer which he did not have permission to use, and began banging it on the bench. Mr Cochran asked him to be quiet and to put the hammer down. The appellant then came very close to Mr Cochran and began to be abusive. He raised the hammer and swung it close to Mr Cochran's face, causing Mr Cochran to flinch. Mr Cochran took hold of the hammer and the appellant released it. The appellant then grabbed Mr Cochran by the collar and tie and with one hand on his throat pushed him back against the wall, where Mr Cochran struck his head. Two days later there was a further incident involving Mr Cochran and the appellant in the school playground. Since the justices did not convict because of a lack of evidence, I need say no more about it.
5. Three weeks later, on the 27 March 2009, Mr Cochran was on playground duty in the morning when the appellant approached him and was verbally abusive. The appellant put his face very close to Mr Cochran's, and appeared to be goading him. Mr Cochran backed off. The appellant grabbed Mr Cochran by the collar which the appellant twisted into Mr Cochran's throat and wind pipe, affecting the ability to breath. The incident was witnessed by Joanne Leader, who was a senior child care associate at the school. She saw the appellant take hold of Mr Cochran by his tie or shirt and pin him up against a bunker. She heard the appellant shout that he hated Mr Cochran, and he was going to kill him. She said that as a result Mr Cochran appeared shaken and distressed. She intervened and tried to push the appellant backwards. She was aware the appellant was trying to headbutt Mr Cochran, but he did not make contact.
6. Mr Cochran reported the incidents to the police. The appellant was arrested and interviewed. In the police interview, the appellant was asked what he was going do with the hammer, and he replied "hit him over the head with it" with the spiky part towards Mr Cochran's head. In addition, the appellant said that he had Mr Cochran against the wall and that he held him by the throat. Before the justices, however, the appellant chose not to give evidence. Mr Cochran gave evidence. He told the justices that he did not consent to the assaults. He conceded that he had taken employment at the school fully understanding that he would have to deal with pupils who had behavioural problems, and who might be abusive, violent or could cause damage.
7. The headteacher, Samantha Miles-Whittaker, also gave evidence. She told the justices that there was training for the staff to help them work with pupils at the school. Teachers were trained in non-violent and non-physical intervention techniques, and also in restraint methods as a last resort. She agreed that there was no written policy regarding contacting the police, but she expected her staff to consult her regarding calling them. However, she continued, staff members were entitled to call the police themselves. Generally speaking that was not in her view the appropriate course. She did not find it satisfactory that Mr Cochran had reported the incident to the police. She told the justices that there was a log of 10 incidents relating to the appellant. Four of these were serious incident reports, but none had led to a prosecution.
8. In representing the appellant before the justices, Mr Boag argued that the case was analogous to sporting fixtures, that Mr Cochran must be regarded as having accepted the risk when he took the post, and that the appropriate course was to take internal disciplinary procedures within the school.
9. In convicting the appellant of two of the three alleged assaults, the justices said that they were of the opinion that Mr Cochran had been specifically asked whether he consented to being assaulted whilst at the school and he had emphatically said that he had not. He was adamant that he had given no general consent to being assaulted as a teacher at a special school. Whereas the justices accepted that there was a difference between mainstream and special schools, they did not accept that the staff at a special school should be expected to tolerate physical violence to the degree involved in the case and therefore the contact sports analogy was to be rejected.

The appellant's case.

10. Before us Mr Boag advanced his case on the basis that his submissions were confined to cases of common assault and only to special schools of the type involved in this case. Whilst he accepted that Mr Cochran gave evidence that he did not expressly consent to the assaults upon him by the appellant, his contention was that by voluntarily taking employment at this type of school any teacher would expect that there would be incidents where relatively minor violence would be used against them by pupils, and that they would have to use physical force to restrain pupils. That, in his submission, meant that any teacher employed at such a school impliedly consented to that situation. If, he continued, it was accepted that there was implied consent, it was then a question of whether public policy considerations invalidated that consent. Mr Boag submitted that there was a difference between mainstream schools and the behaviour to be tolerated there, and this type of school, where the pupils would often display aggressive and challenging behaviour on a regular basis. In his submission, a significant proportion of such incidents might involve the commission of offences of assault or criminal damage, but if all such incidents were reported to the police and prosecuted the schools could not effectively operate. On his case, the situation was analogous to persons participating in contact sports such as football, who accept they may be subjected to a level of violence and that such incidents should be dealt with by the sport's disciplinary body, save if on an objective basis the level of violence went beyond the threshold which ought to be tolerated as a matter of public policy.
11. In respect of the two assaults where the appellant had been convicted, in Mr Boag's submission the threshold had not been crossed. The evidence of the headteacher was that she did not support Mr Cochran reporting the incident to the police. Mr Boag took us to a document of the National Union of Teachers, dealing with individual pupil risk assessment. In particular it deals with the recording of a crime when requested by a school. That applies to offences classified as "serious arrestable offences" under Section 116 of the Police and Criminal Evidence Act 1988, except where the child, parent, guardian or representative considers that there has been or is likely to be serious loss or harm to the pupil. On that basis Mr Boag submitted that the assaults in this case were nowhere near that level of seriousness which are dealt with in the National Union of Teachers document. He accepted that if the level of assault had been at a more serious level it would be a matter which could have been reported to the police and prosecuted through the criminal courts. That was not the case, given the circumstances here. Moreover, it would be counter productive to involve this type of pupil in the criminal justice system. It was better for matters to be dealt with by the school's own disciplinary procedures, as indicated by the evidence of the headteacher. Pupils of this type have to be brought to maturity, and involving them in the criminal justice system would hamper this. Legal principles
12. Implied consent is not unknown to the criminal law, although typically the issue of consent is whether a victim has consented in fact or whether there is an act for which consent cannot be given. Deemed consent by the victim of sexual offences came to an end in R v R [1992] 1 AC 599, although in the following year in R v Aitken [1992] 1 WLR 1006 the continuing presence of the victim during the horseplay of the evening was held to be a possible indication of consent when his fire resistant suit was set alight by fellow service personnel as a joke, causing him life threatening burns.
13. Deemed or implied consent to injuries sustained in the context of contact sports was recognised in the 19th century. A recurrent issue has been the boundaries of that consent. R v Bradshaw (1878) 14 Cox CC 83 was one such case, where Baron Bramwell directed the jury that the line is drawn when the player, independent of the rules and practices of game, intends to cause serious injury, or is indifferent or reckless as to whether that will be produced by what he does. In delivering the court's judgment in R v Donavan [1934] 2 K B 498 Swift J said that rough and undisciplined sport or play was a well established exception to the rule that the consent of the victim is immaterial where a defendant beats his victim with such a degree of violence that the infliction of bodily harm is the probable consequence.
14. The boundary of deemed or implied consent in contact sports was authoritatively drawn in R v Barnes [2004] EWCA Civ 3246; [2005] 1 WLR 910. There the Court of Appeal Criminal Division invoked the approach of the Saskatchewan Court of Appeal in the R v Cey (1989) 48 CCC (3d) 48, which held that what a player can reasonably be regarded as having consented to by taking part in a sport varies with the circumstances, such as the nature of the sport. Giving the judgment of the court in Barnes, Lord Woolf gave general approval as well to the view of the Law Commission in its report Consent and Offences Against the Person, Law Commission No. 134, that a player cannot be regarded to consenting to the intentional infliction of injury or unreasonable risk taken by another player in the light of the conduct necessary to play the game properly. Lord Woolf said that the fact that the play is within the rules and practices of the game and does not go beyond them will be a firm indication that what had happened was not criminal. In highly competitive sports conduct outside the rules could be expected to occur in the heat of the moment, but it still might not reach the threshold level required for it to be criminal. Lord Woolf held that the level is an objective one, and does not depend on the views of the players. The type of sport, the level at which it is played, the nature of the act, the degree of force used, the nature of the risk of injury, and the state of the mind of the defendant are all likely to be relevant in determining whether the defendant's action goes beyond the threshold: para 15. "[16] Whether conduct reaches the required threshold to be criminal will therefore depend on all the circumstances. However there will be cases that fall within the "grey area", and then the tribunal of fact will have to make its own determination as to which side of the line the case falls. In a situation such as we have on this appeal to determine this type of question the jury will need to ask themselves among other questions as to whether the contact was so on obviously late and/or violent it could not be regarded as an instinctive reaction, error or misjudgment of the game."
15. At the base of the recognition of deemed or implied consent in contact sports is public policy. Lord Woolf in Barnes said that the starting point is the fact that most organised sports have their own disciplinary procedures for enforcing standards of conduct: para [5]. As a result in the majority of cases there is not only no need for criminal proceedings, it is undesirable that there should be any. Further, there is the possibility of the injured player obtaining damages in a civil action. A criminal prosecution should therefore be reserved, in Lord Woolf's judgment, to those situations where the conduct is sufficiently grave to be properly categorised as criminal. Where no bodily harm is caused the consent of the victim to what happened is always a defence to a charge, whereas if bodily harm is caused, consent is generally irrelevant, although boxing is an obvious exception.
16. Lord Woolf approved the analysis of Lord Mustill in R v Brown [1994] 1 AC 212. In the course of his dissenting speech in that case, Lord Mustill canvassed different situations involving deemed consent to the infliction of violence to determine where the decided cases offered lessons to new legal challenges such as before the House of Lords in that case. The situations included prize fighting and boxing, contact sport, surgery and rough horse play. In considering such activities, Lord Mustill thought it hopeless to attempt any explanation in terms of consent. Rather it was a matter of policy whether the courts would decide that the criminal law ought to be involved.

"It also seems plain that as the general social appreciation of what is tolerable and of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumption of the Criminal Justice System about what types of conduct are excluded from this scope and what is meant by going "too far" will not remain constant (at 267F)."

The justices' questions

17. In my view, neither as a matter of legal analysis nor legal policy can be it said that consent to an assault is to be implied in the case of a teacher at a school for children with special needs. It may well be, and is probably the reality, that a teacher at this type of school will recognise a higher risk of some pupils becoming violent than in mainstream schools. The individual pupil risk assessments referred to in the National Union of Teachers document to which earlier reference was made will no doubt reflect the different behaviour of pupils in these schools. But in my view, this is not an area where the criminal justice system needs to accommodate the reality by excluding this type of situation from its scope through the technique of implied consent or by other methods. Using implied consent would be especially inappropriate in this particular case in the face of Mr Cochran's positive assertion during the trial that he did not consent to the assaults upon him.
18. As a matter of legal analysis, there is no existing category into which this situation can be fitted. The contact sports cases, as I have said, are based in part on the existence of rules governing the different sports. As far back as Baron Bramwell's direction to the jury in Bradshaw, the rules have been regarded by the courts as a guide as to what a player may reasonably have been regarded to have consented given what otherwise would be a breach of the criminal law. To put it another way, the rules are an indication of the consent players give to what can happen and also reflect the reciprocity between players, the acknowledgment of the risk that a player may be injured by an opponent and the corresponding risk that he or she may cause injury to another.
19. This case bears little, if any, similarity to the contact sports cases. There are no doubt rules governing the behaviour of teachers and pupils in this school, as in other schools. Reflecting the character of the school, physical restraint of pupils is contemplated in exceptional cases. But it must be a given that the rules do not countenance violence against or assaults by pupils on teaching staff. Pupil assaults fall outside the rules; a pointer that the ordinary criminal law is not excluded.
20. Considering the matter objectively, I cannot conceive how the threshold of criminality is not reached in the circumstances of this case. Teachers cannot reasonably be regarded as having consented to being assaulted, even if in this type of school the risk of assault cannot be excluded. More generally, I cannot see that the passage of time referred to in Lord Mustill's discussion in Brown demands that legal policy recognise an exception in modern society for this type of case. In other words, I do not accept that consent should be implied in this situation, especially when, as with Mr Cochran, teachers will not consent to pupil assaults.
21. Although floodgate arguments are not necessarily attractive, I am also troubled about where one would draw the line in this type of school. For example, if teachers impliedly consent to common assault what of other people such as support staff, dinner ladies and other students? Are they to be regarded as having impliedly consented to assaults upon them? One can also conceive of other situations, where if the appellant's contention is correct, it must logically follow that consent must be deemed to be given, for example the nurse or doctor on a ward with difficult patients.
22. Finally, I also reject Mr Boag's argument that it would be inappropriate in this type of case to pursue a criminal prosecution. Reference was made, as I have said, to the National Union of Teachers document, which refers to the reporting of more serious crimes. That is not applicable in this case, which involves common assault. Mr Boag contended that there was a practical problem if every assault from this type of school was reported. I accept that the headteacher of the school found it unsatisfactory that these assaults on Mr Cochran were reported to the police. No doubt the school has internal disciplinary procedures to deal with misbehaviour. In my view, however, there is no good reason that Mr Cochran should be deprived of his right to report to the police a criminal wrong of which he was the victim. To impose upon an individual teacher a condition precedent to their right to make a complaint to the police is, in my view, a step which should not be taken, even if it were jurisprudentially possible. In any event, the evidence of the headteacher was that members of the staff were entitled to call the police. There had been previous incidents involving this appellant, which was not reported, but it cannot be that the right to report an assault to the police can be lost by an acquiescence to previous assaults.
23. In reality, making a complaint to the police is only the first step on the road to a prosecution, as the police and the Crown Prosecution Service must consider the public interest in due course in deciding to prosecute. That provides a safeguard against needless or inappropriate prosecutions in situations where less formal disciplinary procedures or other forms of diversion would be sufficient. It also answers the case that the police and the courts could be overwhelmed by allegations of minor assaults. A challenge to a decision of a prosecuting authority can be made by way of an abuse of process argument or possibly by an application for judicial review before the trial. A teacher must generally retain the right to make a complaint to the police if he or she believes that they have been the victim of an assault.
24. In conclusion I would dismiss the appeal and answer the questions posed by the justices in the negative.
25. LORD JUSTICE RICHARDS: I agree.