London Borough of Sutton v S [2004] EWHC 2876 (Admin)

Case No CO/2603/2004[2004] EWHC 2876 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 26 October 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE THOMAS
MR JUSTICE FULFORD
Between
LONDON BOROUGH OF SUTTONClaimant-v-
Between
SDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR T COMPTON (instructed by the London Borough of Sutton) appeared for CLAIMANTThe DEFENDANT appeared in person for in person
J U D G M E N T

LORD JUSTICE THOMAS:

Under

[1]section 444 of the Education Act 1996 there are two principal offences. Section (1) provides that:
"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."
[2]Subsection (1A), which was subsequently added to the Act, provides for the second and more serious offence:
"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."
[3]Those offences are different for reasons I shall explain in a moment. But it is important to stress at the outset that the very strict nature of the offence under section 444(1) is and has for some considerable time been considered of great importance to support the duty placed by section 7 of the Education Act 1996 upon parents. That section provides:
"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."
[4]That outline of the statutory framework is necessary to explain what happened in the present case.[5]On 13th June 2003 the Magistrates of Sutton within Greater London heard an information brought against the respondents which charged them with an offence under section 444(1A). The Magistrates, after hearing the evidence, acquitted the respondents and declined to return a verdict under section 444(1) which they could have done under section 444(8B), to which I shall refer in due course.[6]On 3rd July 2003 the applicant Council applied to the Magistrates that a case be stated. This was not done until 7th March 2004. It is, I think, in the context of what we shall say hereafter, very important to point out that this was not in any way the fault of the Council, but of the Magistrates' Court. Very candidly, the Bench Legal Manager stated that:
"The delay in sending the final case to the appellant was caused by the court not preparing the first draft promptly. This was entirely my fault and due to the other work pressures on me which had been brought about by staff shortages as a result of two key members of staff leaving and some restructuring within the region. The appellant did prompt me about this matter more than once and no blame can be attached to the professional manner in which they have dealt with this case. I apologise for the delay in finalising the case and the inconvenience and distress this has caused all parties."
[7]In those circumstances -- and I feel sure that no personal blame can attach to the Bench Legal Manager in what, as he says, were the well-known problems in the area -- the Case Stated was only provided on 17th March 2004. The London Borough of Sutton has asked for an extension of time, and of course in the circumstances we grant it, but the importance of the significant delay, of course, has been to cause further stress to the respondents.[8]It is next, I think, convenient to set out the facts as they emerge from the Case Stated. The respondents are the parents of five children. Four of these have attended school regularly. It is important to stress that they must have done well at school. The eldest is at university and the second eldest is studying for A levels. However, unfortunately -- and this is what gives rise to the present proceedings -- their intermediate child, K (born in August 1989 and therefore of compulsory school age) was recorded as attending school only on 29 occasions out of 174 between 15th October 2002 and 14th March 2003, when she was about 14.[9]The Case Stated sets out the evidence of the parents and the officer from the local education authority. It also sets out in two parts the findings that were made. In determining this matter, of course, I have to take into account the findings as made by the Magistrates and not the evidence that was before them because they might and (as, it is clear from their findings) did not accept all the evidence given to them.[10]It is, I think, important to summarise, taking them from the two parts of the Case Stated, the facts. This can be done easily in an enumerated series of paragraphs.(i) The respondents were aware of the fact that K was not attending school.(ii) When her mother realised that K was not attending school she contacted the school and the Education Welfare Officer.(iii) Throughout the period of non-attendance there was close contact between the Education Welfare Officer and the respondents.(iv) Advice was given to the respondents about how to handle K's behaviour in a way to ensure that she attended school regularly.(v) The respondents co-operated with the recommendations made by the Education Welfare Officer using the joint adolescent service, attending parenting classes, school meetings, and following various strategies at home. That, I may interpolate, is a critical finding of fact made in the Case Stated, and it is clear to me that that is the overriding conclusion that the Magistrates reached.(vi) All those strategies failed.(vii) The mother made repeated approaches to Social Services for help. No help was forthcoming until the proceedings were taken against the respondents on 21st March 2003.(viii) K's relationship with the respondents had broken down. The Case Stated gave two examples of that: first, that she communicated with her parents largely by notes; and secondly, that she was violent and abusive towards her mother.(ix) The mother believed after an incident on 11th November 2002 that K was being bullied. The Magistrates made a finding in respect of that; it was not investigated by the school or other agencies, nor was support given to K. The Magistrates expressed their concern about that failure.(x) The respondents did their best to get K to go to school. This included the father staying at home on 12 occasions.(xi) K went on holiday with another family for two weeks when she ought to have attended school. However, the respondents genuinely believed this would be beneficial for her and would assist her with her behaviour.(xii) The reason why the respondents could not get her to school regularly were K's overwhelming needs. The Magistrates did not expressly elaborate on that finding, but it is clear to me that they considered that K had serious problems of an educational and emotional type and they were concerned at the lack of intervention by the Council and other agencies to address her serious problems. They added:
"We hope that [K's] educational and emotional needs will be addressed as a matter of some urgency."
[11]On the basis of those findings of fact the Magistrates concluded:(a) that there was a limit, where the relationship with the parents had broken down, as to how far a parent could go in physically compelling a 14 year-old to do anything a 14 year-old was determined not to do;(b) on the facts of the case that was a reasonable justification for the respondents failing to cause her to attend school. They therefore found her not guilty of the offence under subsection (1A). They then added:
"For clarification to the prosecutor in this case we confirm the Bench considered section (8B) and decided not to proceed with that option in these particular circumstances. "
Accordingly we found [the respondents] not guilty of the offences under Section 444(1A) and we considered section (8B) inappropriate in these particular circumstances."[12]As can be seen from the recital of the findings of fact made by the Magistrates, on the facts, as they were found, there was a clear defence raised for the Magistrates to consider; on that they formed the views I have set out. It is, I think, important to make clear that on the materials before us we can understand why the London Borough of Sutton, the applicants in this case, originally brought the prosecution they did under section (1B); whether the Magistrates formed the same view as to the bringing of the prosecution is not a matter on which we can comment. I wish to make that clear.[13]However, it is, I think, important to say that it was incumbent upon the applicant Council, as it is upon any education authority, when considering whether to proceed further on appeal to this court, to have regard to the very substantial trust that is reposed in them to consider carefully, (as they must consider each prosecution carefully) whether an appeal should be brought. That must be the personal decision of the authority, on which, of course, they must obtain advice. The fact that they have obtained advice in part absolves them and may explain why they took the decision they did, but the responsibility for making the decision is theirs.[14]I wish to emphasise that position, because it is clear from the judgment of Maurice Kay J (as he then was) in Barnfather v LB Islington Education Authority [2003] EWHC 418 Admin, as he emphasises at paragraph 30 of his judgment that the education authority has an important discretion in making the decisions in prosecutions. That applies no less to the prosecution of an appeal by way of Case Stated to this court.[15]When the Case was stated, the opinion of the court was sought on the following questions:
"(a) Whether the facts found by the Magistrates are capable of amounting to a reasonable justification under section 444(1A) of the Education Act 1996? (b) What circumstances are capable of constituting 'reasonable justification'? (c) Whether on a hearing of an information under section 444(1A) of the Education Act 1996, in the event that a defendant is acquitted of an offence under section 444(1A), whether the Magistrates trying the matter have a discretion as to whether or not to return a verdict under section 444(1) by virtue of section 444(8B), or whether they are not obliged to return a verdict? (d) If they have such discretion, how is the same to be exercised?"
[16]I have set the questions out in full because it was submitted to us that in view of the lack of direct authority on issues relating to subsection (1A), it would be helpful for this court to give guidance. There were two difficulties that should have been apparent. Firstly, and this is a matter for which no conceivable criticism can be attached to the London Borough of Sutton, the respondents are not represented. Although the mother has appeared before us, it would be wholly unreasonable to expect her to be able to assist this court upon some of the broad questions asked. But secondly, and this is a matter for the responsibility of the senior officer responsible for this matter at the London Borough of Sutton, a decision had to be made as to whether in all the circumstances it was appropriate to ask these questions on the facts as found by the Magistrates. The senior officer ought to have taken into account, in my view, the obvious distress that bringing such a matter would likely be caused to the particular parents concerned. This is not a case where this court is being asked to answer points of law in the abstract; the consequence of this court answering them in the London Borough of Sutton's favour would have been to cause these particular respondents to be liable to the more severe sanctions of section (1A).[17]It is, it seems to us, important to stress that that human factor ought not to be overlooked when the opinion of this court is sought. It is right and proper that the individual facts of the case ought to be considered to see whether, in all the circumstances, the case concerned is an appropriate one to raise these issues before this court and whether, in all the circumstances, there was a realistic prospect that this court would decide the matter in such a way that the matter would have to be remitted. At the end of the day, there is a human person involved and, for reasons that will become apparent, it was obvious to me on reading the papers that this is an appeal that was completely and utterly hopeless and should never have been brought. In contradistinction to the position when the matter was brought before the Magistrates, where on the papers there was, it seems to me, a perfectly proper exercise of the prosecutorial discretion, the findings of fact as I have enumerated made it obvious that this appeal had no prospects whatsoever of success.[18]I have taken the view in listening to the submissions made before us by Mr Compton 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.[19]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 way the argument had proceeded before the Magistrates is apparent from the Case Stated. At the conclusion of the evidence it was submitted on behalf of the London Borough of Sutton that, although it was accepted that the respondents had co-operated in some limited (and I emphasise those words) ways with the school and the Education Welfare Officer, however it was clear that the respondents could have taken (and I emphasise these words) many other steps to ensure K attended school; they therefore had no reasonable justification in law for K's absence. That was a submission that was made when the Magistrates had listened to the evidence. It was for the Magistrates to decide the extent to which they accepted or rejected that evidence. From the findings of fact that I have enumerated, it is clear that they rejected the evidence of the Education Welfare Officer and found that these respondents had co-operated and done what was asked of them. I have already enumerated that specific finding in the summary I have made.[20]In those circumstances it seems to me that a court must ask the question: what else should they have done? The answer we received, when we asked that question was: they should have complied with all the advice given and engaged fully. That was a submission that was open to the London Borough of Sutton before the Magistrates because there was a conflict of evidence. The Education Welfare Officer, it is clear, believed they had not. The Magistrates found against them. The submission was therefore hopeless in this court. It seems therefore to me that, on the facts of this particular case, given the findings made by the Magistrates, the points of law that are said to arise simply do not; the matter turns on its own facts. It may be that in some future case a court may be able to give guidance on the question of the scope of this defence, but it would be inappropriate for us to do so, both by reference to the fact that in this case the point simply does not arise; and secondly, we do not have the benefit of argument from counsel on behalf of the respondents.[21]There was another point taken before us in relation to what evidence should have been put before the Magistrates in relation to bullying. We understand full well the difficulties faced by an education authority where bullying is frequently raised as a defence for not sending a child to school. However, on the facts of this case, as found by the Magistrates, that was not an issue that arose. In the light of the course of the argument before us, I say no more about it, though one can see that in a future case issues could arise in respect of the way in which such evidence is to be dealt with.[22]It seems to me, therefore, that on the second question raised before us it would be inappropriate for me to say more than that on the facts of this case, as found by the Magistrates, the Magistrates rightly acquitted the respondents; no issue of law arises on the findings made. That is why this appeal was from the outset hopeless and one which should never have been pursued.[23]I turn then to consider the third and fourth questions that were raised, that is to say, how the Magistrates should have exercised the discretion that they had under section 444(8B). That section 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."
[24]It was submitted to us on behalf of the London Borough of Sutton that the proper approach to the exercise of that discretion is that to be found by an analogy from what was stated by the Court of Criminal Appeal in Fairbanks (1986) 83 Cr.App.R. 251. That case raised the question of the circumstances in which an alternative verdict should have been left to a jury. In a characteristically learned judgment, Mustill LJ (as he then was), after a review of the authorities, concluded at page 255:
"These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case has been presented to the court: for example if the defence has never sought to deny that the full offence charged had been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense. "
We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge things it best not to distract the jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and jury, and where the possibility of convicting for a trivial offence would be an unnecessary further complication. "On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater."[25]Some robust criticisms were apparently made of that judgment by the editors of Archbold; the issue was again considered in the Court of Criminal Appeal in Maxwell (1989) 88 Cr.App.R 173 where, after consideration of the criticism which Mustill LJ described as "sharp", the issue was reconsidered. That reconsideration was commented on by the House of Lords when the case of Maxwell went on appeal in 1990 (Maxwell (1990) 91 Cr.App.R 61), when some observations were made by Lord Ackner. Essentially their Lordships' House affirmed the correctness of the decision in Fairbanks.[26]It seems to me that the principles to be derived from Fairbanks and Maxwell are applicable to the exercise of the discretion under (8B). 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, nonetheless 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.[27]In the circumstances before us, it has been accepted by Mr Compton that it would not be right, given all that has happened, for this court to remit the matter back to the Magistrates. Interesting questions may arise on what is meant by "the interests of justice", particularly in relation to the important discretion that is vested in the education authority in relation to prosecutions under section 444. Those however do not arise in the circumstances of this case and I need say no more than to stress the importance of the offence under section 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.[28]For those reasons, therefore, I answer the questions that have been posed in the way I have and dismiss the application.

MR JUSTICE FULFORD: I agree.

LORD JUSTICE THOMAS: Thank you very much. I am concerned Mrs S as to why you did not get legal aid and the clerk will write to ascertain why. It may be that we can make no comment on it. I know not the facts, but we would like to know. Thank you very much indeed.

Cited in 1 later judgment