Scottish Sheriff Court Decisions

JOHN O'HAGAN, Director of Administration,North Lanarkshire Council v. LORRAINE REA [2001] ScotSC 1 (12th January, 2001)

Act; Blair, Advocate, instructed by the education authority

Alt: Graham, Solicitor, Messes McAfee, Coatbridge, for the accused

Airdrie: 12 January 2001

1. This case involves the prosecution of Lorraine Rea by the Director of Administration of North Lanarkshire Council, who is duly authorised to prosecute such cases by the education authority. The charge against her is in the follow terms: "You, being the parent within the meaning of the Education (Scotland) Act, 1980, of Jonathan a child of school age, date of birth 31.12.84 who has attended Coatbridge High School, Coatbridge, and the said child having failed, between 30 August 1999 to 19 November 1999 without reasonable excuse, to attend regularly at the said school, you are thereby guilty of an offence against section 35 of the said Act of 1980."
2. Scottish practitioners are becoming increasingly sensitive to human rights issues and there has been concern that section 35 of the 1980 Act, which derives from nineteenth century legislation, is incompatible with the European Convention on Human Rights. The case against Ms Rea, and a number of similar cases, have been repeatedly continued so that the issues might be focused after 2 October 2000, when the European Convention of Human Rights became part of our domestic law.
3. On 15 December 2000, at a trial diet declared to be "notional", Mr Graham, solicitor for the accused, moved me to desert the diet before any evidence was led. Mr Blair, counsel for the local authority, asked me to continue the case to a proper trial diet. There followed a lengthy debate. I am obliged for the assistance both advocates gave me.

The legal background

4. In limine I was told that it was agreed:

1. It would be competent, under section 3 of the Human Rights Act 1998, if I could properly do so having regard to the language of the Act, to re-interpret the Act of 1980 in a way which ran counter to previous decisions ordinarily binding on me if that enabled the Act to be enforced in a manner compatible with Convention rights.

1. The relevant sections of the Education (Scotland) Act 1980 are as follows:

"Duty of education authorities to secure provision of education

1(1) Subject to sub-section (2) below, it shall be the duty of every education authority to secure that there is made for their area adequate and sufficient provision of school education and further education.

Duty of parents to provide education for their children

30 It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.

Exemption from school attendance

34(1) Where ... an education authority are satisfied that by reason of any circumstances existing at his home it would cause exceptional hardship to require a child over fourteen years of age to attend school, they may grant exemption from the obligation to attend school to enable the said child to give assistance at home ...

Failure by parent to secure regular attendance by his child at a public school

35(1) Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school ... , his parent shall be guilty of an offence against this section.

(2) For the purposes of this section, a child who has been required to discontinue for any period his attendance at a school on account of his parents' refusal or failure to comply with the rules, regulations or disciplinary requirements of the school, shall, unless the court otherwise determines, be deemed to have failed without reasonable excuse to attend regularly at the school.

Power of education authority in relation to irregular attendance of child at a public school

36(1) It shall be the duty of the education authority if they consider that a parent has committed an offence against section 35 of this Act in respect of a child ... , to serve a notice on the parent requiring him ... to appear ... before the authority and explain the reason for the absence of the child from school. If the parent fails to satisfy the authority that he had a reasonable excuse, the authority may instruct that he be prosecuted forthwith under section 43 of this Act or may warn the parent and postpone ... a decision as to whether to prosecute.

[sub-section 3 empowers the education authority to give information to the principal reporter of the children's panel in relation to a child not attending regularly whether a prosecution takes place or not]

Power of education authority where not satisfied that parent is providing efficient education for his child

37(1) Where a child of school age has not attended a public school in the area in which his parent is residing ..., then, if the authority are not satisfied that the parent is providing efficient education ... , it shall be the duty of the authority to serve a notice on the parent requiring him ... either (a) to appear before the authority ... , or (b) ... to give such information to the authority in writing.

(2) If a parent on whom a notice has been served in pursuance of sub-section (1) above fails to satisfy the authority that he is providing efficient education for the child suitable to his age, ability and aptitude or that there is reasonable excuse for his failure to do so, the authority shall make an attendance order in respect of the child ... .

Failure to comply with attendance order

41. Where an attendance order has been made and is in force in respect of any child, ... the parent shall, if the order is not complied with, be guilty of an offence against this section unless he satisfies the court that he has a reasonable excuse.

Reasonable excuses

42(1) For the purposes of sections 35, 36, 37, 41 and 44 of this Act, there shall be deemed to be a reasonable excuse if (a) [the child requires to walk too far to the school] or (b) the child has been prevented by sickness from attending school or receiving education as the case may be; or (c) there are other circumstances which in the opinion of the education authority or the court afford a reasonable excuse.

Prosecutions and penalties

43(1) [For repeated offences a parent can be fined up to level 3 or imprisoned for one month or both].

Powers of courts in relation to child

44(2) ... the court before which a prosecution is brought for an offence against section 35 ... may ... make an attendance order ..."

The underlining is mine: for its significance, vide paragraph 33, infra.

In terms of section 54 of the Children (Scotland) Act 1995, the court has the power to refer a truanting child to the principal reporter of the children's panel and such a reference is to be treated as if the grounds for referral had been established in the normal way.

2. In terms of the legislation "parent" is defined to include a guardian and any person who is liable to maintain, or has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of, a child or young person.
3. It will be apparent that a prosecution can competently be brought not only against a parent who has a young school-age child living with him and who cannot be bothered to get out of bed in time to get the child to school, but also against a single mother who is incapable of persuading or forcing a school-phobic fifteen year old to attend and remain at school, and even against a parent who does not have the child living with him and who is both ignorant and effectively powerless in relation to the child's truancy.
4. Section 42(1) of the 1980 Act has been authoritatively interpreted by the High Court of Justiciary in Kiely v Lunn 1982 SCCR 436 and MacIntyre v Annan 1991 SCCR 465 so as to confine "a reasonable excuse" to circumstances affecting the child. A parent with what might be considered to be a reasonable excuse for failing to secure the child's regular attendance which does not relate to the child is not afforded a defence under section 42(1)(c). The foregoing cases are in normal circumstances binding on me.

Submissions for the accused

5. The solicitor for the accused accepted that it was compatible with the Convention to have a crime of omission, ie using a motor vehicle without insurance. The remedy was in the hands of the potential accused: either get insurance or do not use the vehicle. In cases such as that example there was some actus reus for which the accused could be prosecuted.
6. In a prosecution under section 35 there was no actus reus applicable to the accused. The actings out of which the prosecution arose were the actings of the child, yet criminal responsibility attached to the parent through the mere fact of the relationship, and regardless of whether or not the parent was capable of exerting any practical influence on the situation. Section 35 did not impose any duty on a parent to secure the attendance of the child at school and criminal liability did not arise from a breach of any such duty. The heading given to section 35 misrepresented what the section actually said. A criminal offence based on a failure in duty on the part of the accused would not in itself be open to challenge, but under section 35 an accused person might incur criminal liability without having been guilty of any omission. Such vicarious liability in criminal proceedings was unknown in European jurisprudence. It offended fundamentally against Article 6(1) of the Convention as it was impossible to have a fair trial if there was no criminal acting alleged against the accused. In such a situation there was nothing to defend, and so there could be no fair trial. To have a crime compatible with the Convention there required to be some act or omission by the accused party.
7. It was not open to the court to re-draft the legislation. Sections 35(1) and 42(1) had been properly considered and interpreted by the High Court. It was not possible to use re-interpretation as a tool to render fundamentally flawed provisions acceptable. Sections 36 and 37 of the Act flowed from the initial failure by the child to attend school regularly without a reasonable excuse, and they fell to be looked at in that light.
8. In all the circumstances, respecting the view that rights should be effective, I should not take an unduly formalistic approach (Lala v The Netherlands, European Court of Human Rights, Case 25/1993/420/499) and should desert the cause simpliciter. The prosecution was not entitled to lead evidence in support of such a defective charge and, as a public authority, the court was not entitled to convict in such circumstances.

Submissions for the education authority

9. Counsel for the education authority made no attempt to argue that section 35(1) as presently interpreted was compatible with the Convention. He commenced his address by taking me through the statutory provisions and Scottish authorities summarised supra. Under reference to Wilkinson and Norrie: Parent and Child (Second Edition) paragraph 12.03 he emphasised that the parent's duty to provide sufficient education for his child is the primary principle of the Act. Article 2 of the First Protocol to the Convention provides for a right to education. In Campbell & Cosans v United Kingdom 1982 4 EHRR 293 the European Court of Human Rights held, in paragraph 36 of their decision, that the whole of Article 2 was dominated by its first sentence:

"No person shall be denied the right to education".

It is to be noted that the drafters of the protocol decided that a negative formulation was the best way to secure a positive right to education. States were accorded a wide margin of appreciation as to how they should go about the provision of education (Belgian Linguistic Case (No 2) 1968 EHRR 252 at 281-282). In Family H v The United Kingdom 1984 37 DR 105 at 108 the Commission held:

"It is clear that Art 2 of Protocol No 1 implies a right for the state to establish compulsory schooling, be it in state schools of private tuition of a satisfactory standard and that verification and enforcement of educational standards is an integral part of that right".

10. Counsel submitted that the role of Article 6(1) of the Convention was procedural. It has a limited role in deciding what a criminal offence should be. However, counsel argued that Article 6(2) was relevant to the present case. It is in the following terms:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

11. The case of Salabiaku v France (1988) 13 EHRR 379 was important. That was a prosecution of a man entering France. He was convicted of an offence under the Customs Code which imposed a presumption of criminal liability for every person found in possession of prohibited goods. In paragraph 27 of the judgment the European Court of Human Rights extended their consideration beyond presumptions and said:

"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."

In Salabiaku's case there was an obligation on the French court to acquit him if he succeeded in establishing a case of force majeure. Further, it was apparent to the court that the lower court had paid attention to the accused's state of knowledge. In the circumstances they decided that Article 6(2) had not been violated.

12. Looking beyond European jurisprudence, counsel referred me to a number of cases pointing to the importance of the mental element in crime. The first such case was Lim Chin Aik v The Queen 1963 AC 160. At page 174, the Privy Council, in discussing strict liability, said the following:

"But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."

 

At page 175 they said:

"Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended."

13. Counsel referred to Sweet v Parsley 1970 AC (HL) 132, Lord Diplock at 163:

"But such an inference [of strict liability] is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation."

14. Counsel referred to Morissette v United States, a decision of the UK Supreme Court of 1952 with the reference 342 US 246. In discussing strict liability offences, the opinion of the Court contained the following:

"Hence, legislation applicable to such offences, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such consideration, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving."

15. Another case referred to by counsel was Thomas Larry Jones v The Queen, a decision of the Supreme Court of Canada with the reference 1986 2SCR 284. That case concerned freedom of choice by parents in selecting schools for their children but, at paragraph 55, Lamer J clearly expressed disapproval of a situation in which a parent might be found criminally liable for a child's truancy without reference to the mental attitude of the parent and without the possibility of a defence of due diligence. Lastly, on this part of the case, counsel referred to Gordon: Criminal Law, Second Edition, paragraphs 8.31 and 8.32.
16. In assessing whether section 35(1) as presently construed, contravenes Article 6(2) it is necessary to consider the issues of balance and proportionality. Counsel referred to Lester & Pannick paragraphs 3.09 and 3.10. In the latter paragraph the learned authors write:

Counsel pointed out that although the legislative objective was important, section 35(1) as presently interpreted could be described as arbitrary and unfair and the objective - the attendance of children at school - might be effectively addressed by a court referring the child to the principal reporter in terms of section 54 of the Children (Scotland) Act 1995. This power can be exercised whether the parent is convicted or not. Examples of cases in which proportionality had been assessed were Salabiaku v France and PF (Dunfermline) v Brown, Privy Council 5 December 2000.

1. In the foregoing circumstances, counsel's submission was that section 35(1), as presently interpreted, offended against Article 6(2).
2. The next stepping stone for counsel's argument was section 3 of the Human Rights Act 1998. It provides:

In light of the terms of sub-section 1, counsel argued that it was necessary for me to attempt to re-interpret the relevant sections of the 1980 Act so the legislation might be given effect in a way which is compatible with Convention rights.

1. This, said counsel, could be simply achieved if section 42(1)(c) were to be given a wide interpretation. He referred to Wilkinson & Norrie, op cit, paragraph 12.10. In other words, the "other circumstances which in the opinion of the education authority or the court afford a reasonable excuse" should not be confined to circumstances affecting the child but should also, potentially, relate to circumstances exclusively affecting the parents. Thus re-interpreted, the legislation in question would be compatible with the Convention rights and so this prosecution should continue.

Decision

2. The first question that I require to decide is whether section 35(1) of the 1980 Act as currently interpreted is incompatible with Convention rights. Instinctively I would say that it was. Those liable to be found guilty if prosecuted include many who have done nothing wrong and who are, for all practical purposes, unable to affect the factual situation which gives rise to strict liability. They include some parents who have done their best to force their child to attend school and remain there until the end of the school day, but whose efforts have been in vain. Instinctively, I feel that such persons should not be subject to criminal sanctions.
3. This view echoes those already quoted from Lim Chin Aik v The Queen, Sweet v Parsley, Morissette v United States and Thomas Larry Jones v The Queen.
4. The foregoing authorities are not examples of convention-orientated jurisprudence. However dicta of eminent judges from broadly similar legal systems have frequently been considered in cases involving Convention rights. In PF (Dunfermline) v Brown, Privy Council 5 December 2000, Lord Bingham of Cornhill said at page 21 of the leading judgment:

"In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the Court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a "Living tree capable of growth and expansion within its natural limits" ... , but those limits will often call for very careful consideration."

5. I am not persuaded that the instant case involves Article 6(1). It seems to me that Article 6(1) is principally concerned with the procedures in and surrounding a trial. The process itself, seen as a whole, must be fair. Article 6(1) does not seen to me to involve the subject matter of the trial unless that effects the procedure. The argument presented by the solicitor for the accused took a proposition - that section 35(1) was unfair - and leaped to the conclusion that the whole procedure was unfair although there is no significant complaint based on any procedural issue. In my view, this is a leap too far and this case does not involve a breach of the Convention rights enshrined in Article 6(1).
6. As counsel for the education authority stressed, the scope of Article 6(2) has been developed, principally, so far as this case is concerned, in Salabiaku v France. That case involved what the European Court of Human Rights described as "a rebuttable presumption of fact and liability" and went on, in paragraph 27 of the judgment, to consider cases in which strict criminal liability is imposed in respect of a given factual situation:

"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."

In paragraph 28 the judgment went on:

"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."

7. In Salabiaku's case, the domestic law allowed the accused to prove force majeure and thus obtain an acquittal. The court held that, as the French court had examined the question of intent, there was no breach of Article 6(2).
8. As presently interpreted, section 35(1) of the 1980 Act does not provide the accused with any defence arising out of his practical innocence, whether based on force majeure, reasonable diligence or the like. Furthermore, in terms of section 54(1) and (2)(d) of the Children (Scotland) Act 1995, a court is empowered to refer a truanting child to the principal reporter of the children's panel with the ground of reference deemed to have been established. This power can be exercised whether the parent is convicted or not. Section 36(3) of the 1980 Act as amended entitles the education authority to lay information before the principal reporter in relation to a truanting child. There are other detailed provisions regarding attendance orders. The conviction of the parent cannot be seen as being indispensable to the aims of the legislation and so strict liability is more difficult to justify. It seems to me that the imposition of strict liability on the parent of a truanting child can properly be described as arbitrary, unfair and, in any event, more onerous than is necessary to compel parents to do their best to secure the regular attendance of their children at school. In R v Director of Public Prosecutions ex Parte Kebilene (1999) 3 WLR 972 at 997 Lord Hope of Craighead said:

"The cases show that, although Article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of facts) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits."

In my view the imposition of strict liability on a parent in respect of a truanting child exceeds reasonable limits and sections 35(1) and 42(1) as presently interpreted are incompatible with the right to be presumed innocent enshrined in Article 6(2) of the Convention.

9. The next question arises under section 3 of the Human Rights Act, quoted supra. Sub-section 1 is relentless and the doctrine of stare decisis cannot be maintained in face of it. Accordingly, it is my duty to see if the statutory provisions are capable of bearing the alternative interpretation suggested by counsel, or, indeed, any other interpretation that would make the legislation compatible with Convention rights.
10. The current interpretation of section 42(1), which defines a reasonable excuse, seems to be an example of the application of the eiusdem generis rule. The sub-section contains three categories of reasonable excuse: the first relates to the child's journey to school; the second relates to the child's sickness; and the third is couched in the most general terms. That third category has been given the narrowest interpretation, restricting it to circumstances affecting the child only because the other two categories relate to the child only.
11. Section 42(1) applies for the purposes of sections 35, 36, 37, 41, and 44 of the Act. In my view, it would do no real violence to the language of these sections if the words of section 42(1)(c) were to be given their full, general meaning rather than a restricted meaning. While sections 35(1) and 44 might read more happily with the reasonable excuse being restricted to the child, as at present, sections 36, 37 and 41 seem to me to point to a reasonable excuse relating to the parent (vide words underlined by me in paragraph 5 of this judgment). Reading the relevant statutory provisions in the manner directed by section 3 of the Human Rights Act, I am clearly of the view that section 41(1)(c) could be given a wide meaning so that "reasonable excuse" might include circumstances relating to the parent as well as circumstances relating to the child.
12. Such a re-interpretation would be legitimate only if it satisfied the aim of section 3 of the Human Rights Act. In other words, would section 35(1), given the alternative interpretation, be compatible with the Convention?
13. In my view if "reasonable excuse" is given a wide meaning the legislation, in particular section 35(1), would be compliant with Article 6(2). Proportionality requires to be considered and the aim of the legislation - ensuring the attendance of children at school - is of great importance. This importance has been recognised in Convention jurisprudence and measures to enforce attendance have been supported (ie the Belgian Linguistic Case and Family H). Provided that any parent accused of dereliction of the duty imposed by section 30 of the 1980 Act to educate their child has the potential to defend his or herself on the simple basis that in fairness they should not face sanctions including criminal liability for the child's truancy, the measures contained in the relevant sections seem to me to be proportionate.
14. In the foregoing circumstances I am of the opinion that section 41(1)(c) should be given its wide meaning, enabling section 35(1) to be interpreted in a way compatible with the Convention. It follows that, in light of the coming into force of the Human Rights Act, the Scottish authorities referred to earlier, Kiely v Lunn and MacIntyre v Annan, can no longer be regarded as accurately expressing the law of Scotland, in the view of this sheriff, at least.
15. Had I been of the view that re-interpretation of the legislation was not possible I would not have acceded to the motion to desert simpliciter. Section 3(2)(b) of the Human Rights Act makes it clear that primary legislation remains in force until it is repealed or amended. Even a declaration of incompatibility does not affect the validity, continued operation or enforcement of the offending statutory provision (vide section 4).
16. In the foregoing circumstances the defence motion will be refused and a conventional trial diet will be set down. If the prosecution establish a case for the accused to answer it will be open to her to lead evidence of a reasonable excuse that would, before 2 October 2000, have been irrelevant.