Barnfather v Islington Education Authority & Anor

On 6 February 2002 the Appellant was convicted at Highbury Corner Magistrates Court of an offence under section 444(1) of the Education Act 1996. She was fined £75 and ordered to pay prosecution costs of £50. 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.”

The Appellant was not present in the Magistrates Court when she was convicted. She subsequently appealed to the Inner London Crown Court. The appeal was listed to be heard on 8 July 2002 by His Honour Judge Van der Werff and two lay justices. Counsel for the Appellant raised a preliminary issue as to whether the offence as prescribed by section 444(1) is compliant with the European Convention on Human Rights and Fundamental Freedoms (ECHR). The case for the Appellant was and is that section 444(1) is not ECHR compliant because it is a strict liability offence which does not require proof of any knowledge or fault on the part of the parent. The Crown Court ruled that the offence is ECHR compliant. However, the appeal to the Crown Court remains unresolved because of the present appeal to the Administrative Court by Case Stated in relation to the preliminary issue. The questions posed by the Case Stated for the opinion of this court are:

“1.

Is section 444(1) of the Education Act 1996 as interpreted by the higher courts prior to the enactment of the Human Rights Act 1998 compatible with the provisions of the European Convention on Human Rights?

2.

If not, can the section be reinterpreted compatibly with the Convention pursuant to section 3 of the Human Rights Act 1998 and, if so, how?”

Section 7 of the 1996 Act is headed “Duty of Parents to Secure Education of Children of Compulsory School Age”. It 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.”

By section 8 compulsory school age runs from the age of 5 to the age of 16.

Section 444 is designed to encourage compliance with and to punish non-compliance with the section 7 duty. The offence under section 444(1) has been part of the relevant legislation since 1944. However, it has recently been supplemented by the enactment of an additional offence under section 444(1A) which was inserted into section 444 as a result of section 72(1) of the Criminal Justice and Court Services Act 2000. The new offence under section 444(1A) is defined as follows:

“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.”

Thus, the offence under section 444(1) is the less serious offence and can properly be described as an offence of strict liability. The new offence under section 444(1A) is more serious and requires proof of knowledge on the part of the parent and an absence of reasonable justification. The respective seriousness of the two offences is reflected in the provisions for punishment. The maximum punishment in relation to section 444(1) is a fine “not exceeding level 3”, which is presently fixed at £1000 on the standard scale. The maximum punishment in relation to the offence under section 444(1A) is a fine “not exceeding level 4”, that is £2500, and/or imprisonment for a term not exceeding three months.

By section 446, proceedings for an offence under section 444 can only by instituted by a local education authority. Section 447 provides:

“(1)

Before instituting proceedings for an offence under section ….444, a local education authority shall consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child.

(2)

the Court –

(a)….

(b)

before which a person is charged with an offence under section 444,

may direct the local education authority instituting the proceedings to apply for an education supervision order with respect to the child unless the authority, having consulted the appropriate local authority, decide that the child’s welfare will be satisfactorily safeguarded even though no education supervision order is made.”

There are additional provisions in section 444 which impact on the meaning of “failure to attend regularly”. They are as follows:

“(3)

The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school

(a)

with leave,

(b)

at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

(c)

on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

(4)The child shall not be taken to have failed to attend regularly at the school if the parent proves –

(a)

that the school at which the child is a registered pupil is not within walking distance of the child’s home, and

(b)

that no suitable arrangements have been made by the local education authority ….for any of the following-

(i)

his transport to and from the school,

(ii)

boarding accommodation for him at or near the school, or

(iii)

enabling him to become a registered pupil at a school nearer to his home.”

“Walking distance” is defined by sub-section (5). There is a further provision in relation to children of no fixed abode.

Finally, it is provided by section 444(8B) –

“If, on the trial of an offence under sub-section (1A), the court finds the Defendant not guilty of that offence but is satisfied that he is guilty of an offence under sub-section (1), the court may find him guilty of that offence.”

The authorities prior to the coming into force of the Human Rights Act 1998 consistently demonstrated the strict liability imposed by section 444(1) and its predecessors. In Jenkins v. Howells [1949] 2 KB 218 the pupil had been continuously away from school because her mother was a chronic invalid and it was necessary for the girl to assist with housework. When the mother was prosecuted pursuant to the corresponding provision in the Education Act 1944 she contended that her daughter’s absence was the result of “any unavoidable cause” by reference to the predecessor of section 444(3)(b) The Divisional Court rejected that contention and held that “unavoidable cause”, like sickness, must be in relation to the child and not the parent.

In Crump v. Gilmore (1969) 68 LGR 56 the justices had found as facts that the parents of a secondary school pupil had not known about relevant absences until after the event and that there had been no neglect on their part. The justices acquitted the parents but on an appeal by the prosecutor it was held that the offence under what is now section 444(1) is an absolute offence and it is unnecessary to show knowledge on the part of the parents of the child’s absence or any neglect on their part. Such matters merely go to mitigation. The Divisional Court remitted the case to the justices with a direction to convict. The Divisional Court expressed a degree of sympathy with the parents. Lord Parker of Waddington CJ said (at page 60):

“I would only add that whilst sentence is not a matter for this court, it seems to me that if the justices believed the parents, as they apparently did, this would look as if it were a case for absolute discharge ”

Cantley J added that:

“If they thought it appropriate, the justices could absolve the parents not only from any penalty but from any costs.”

The most recent affirmation of these authorities was in Bath and North East Somerset Council v. Warman [1999] ELR 81. In that case a fifteen year old girl absented herself from school when she went to live with a boyfriend at an address which was not known to her mother. The justices acquitted the mother on the basis of “any unavoidable cause” but the prosecutor’s appeal to the Divisional Court was allowed for the same reasons as in Jenkins v Howels and Crump v. Gilmore, both of which were followed. Lord Justice Rose said:

“However hard it may appear to be, in my judgment, the construction placed upon this statutory provision in the authorities to which I have referred, makes the conclusion inescapable that the circumstances of this case did not give rise to unavoidable cause for the child’s absence from school. ”

Lord Justice Rose expressed some surprise that the mother had been prosecuted and added that:

“the justices might very well think that the appropriate penalty…is one of absolute discharge.”

Faced with this line of authority, Mr. Owen QC on behalf of the Appellant in the present case, accepts that at this stage the case for the Appellant can only be put on the basis of the Human Rights Act 1998.

In a nutshell, Mr. Owen’s submission is that section 444(1) is not compliant with Article 6.2 of the ECHR. Although initially he was minded to contend that this court should read words into section 444(1) pursuant to section 3 of the Human Rights Act so as to render it compliant, he no longer pursues that approach and now seeks a declaration of incompatibility pursuant to section 4. Although the argument about Article 6.2 has not previously been considered at this level, it has met with success at a lower level. In Helmsley v. West Sussex County Council Chichester Crown Court (His Honour Judge Barrett QC and Justices) accepted the argument in a closely reasoned judgment on 12 September 2001 and dealt with it by reading into section 444(1) a fault requirement. The argument was also accepted north of the border in O’Hagan v. Rea a reasoned decision of the Sheriff of South Strathclyde, Dumfries and Galloway, on 12 January 2001.

Article 6 is headed “Right to a fair trial”. It is appropriate that I refer to Article 6.1 and 6.2. They are in the following terms:

“1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

2.

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

At fist sight it is not obvious how Article 6.2 might impact on the issue of a strict liability offence. Its subject matter appears to be procedural and evidential rather than substantive. It is therefore necessary to refer to the Strasbourg Jurisprudence upon which Mr. Owen bases his submissions.

The leading case is Salabiaku v. France (1988) 13 EHRR 379. Mr. Salabiaku had taken a trunk through the green channel at a French airport. It was later found to contain 10 kilograms of cannabis. He was charged with two offences: a criminal offence of illegally importing narcotics and a “customs offence” of smuggling prohibited goods. At trial and on appeal in the French courts he was acquitted of the former but convicted of smuggling. The customs offence is defined in Article 414 of the Customs Code. It relates to:

“Any act of smuggling and any undeclared import or exportation of goods falling within the category of goods which are prohibited ”

By Article 392(1) of the Customs Code a person in possession of contraband goods “shall be deemed liable for the offence”. Thus, although the offence does not necessarily require possession, where possession is established Article 392(1) applies. It was ascertained that, whilst Article 392(1) appears to provide for an irrebutable presumption, its severity has been to some extent moderated by decisions of the French courts which have recognised that the accused may exculpate himself by establishing force majeure resulting “from an event responsibility for which is not attributable to him and which it was absolutely impossible for him to avoid”. The judgment of the Strasbourg Court contains these passages:

“26.

Mr. Salabiaku maintained that the ‘almost irrebutable presumption’….was incompatible with article 6.

27….in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention, and accordingly, to define the constituent elements in the resulting offence. 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. However, the Applicant was not convicted for mere possession of unlawfully imported prohibited goods. Article 392(1) of the Customs Code does not appear under the heading ‘classification of customs offences’ but under that of ‘criminal liability’. Under this provision a conclusion is drawn from a simple fact, which in itself does not necessarily constitute a petty or a more serious offence, that the ‘criminal liability’ for the unlawful importation of the goods, whether they are prohibited or not, or the failure to declare them, lies with the person in whose possession they are found. It infers therefrom a legal presumption on the basis of which (the French Courts) found the Applicant guilty of smuggling prohibited goods….

28.

This shift from the idea of accountability in criminal law to the notion of guilt shows the very relative nature of such a distinction. It raises a question with regard to Article 6.2 of the Convention. 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.”

The Court then went on to consider whether such limits were exceeded in the case before it but concluded that they were not because of the way the French courts had embraced, for example, the concept of force majeure.

If counsel in the present case agree on one thing it is that the reasoning in Salabiaku is not always easy to follow. Mr. Owen submits that the reasoning enables a court to subject a strict liability offence to scrutiny to see whether it is confined “within reasonable limits” on a proportionality basis. He founds this submission on the passage in paragraph 27 which observed that Contracting States may penalise “a simple or objective factor as such, irrespective of whether it results from criminal intent or negligence”, but only “under certain conditions”. He then refers to passages in paragraph 28 including the reference to Contracting States being required “to remain within certain limits in this respect as regards criminal law”. Finally, he points to the later passage concerning the requirement that States “confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the Defendants”.

The next piece in Mr. Owen’s jigsaw is Hansen v. Denmark, an admissibility decision of the European Court of Human Rights sitting on 16 March 2000 (application number 28971/95). Its context is the requirement for rest periods in relation to lorry drivers who are monitored by tachographs. The Danish courts had convicted a driver and also Mr. Hansen, the managing director of the company. The relevant statutory provision was that

“liability of a fine can be imposed on an employer for violation of….sections 7 and 8 (i) and (iii) when the driving was carried out in his interest, although the violation cannot be imputed to his intent or negligence.”

Mr. Hansen sought to rely on Article 6.2. The Court expressly adopted the passages in paragraphs 27 and 28 of the judgment in Salabiaku, in particular the references to “under certain conditions” and “within reasonable limits”. However, it concluded that the Danish law was “well within the reasonable limits which take into account what is at stake”. The complaint was therefore held to be inadmissible. Nevertheless, Mr. Owen relies upon the decision as an example of the Strasbourg Court scrutinising a strict liability offence by reference to Article 6.2 and the “reasonable limits test” set out in Salabiaku.

On behalf of the Secretary of State, Mr. Lewis (supported by Mr. Auburn on behalf of Islington) submits that strict liability offences do not attract the application of Article 6.2 in the manner for which Mr. Owen contends. He further submits that the specific ingredients of an offence, including whether it is an offence which requires mens rea to be established or whether a particular defence should be available, are matters of substantive criminal law which is exclusively a matter for the Contracting State. If it does not prescribe mens rea for a particular offence, Article 6.2 simply does not arise. The presumption of innocence relates to proof of the elements of the offence. It does not require that elements which are not part of the offence be added to it. Nor does it require that certain defences must be made available. All this is a matter for the national legislature, subject to the possibility of the engagement of other Articles in the ECHR which may arise in some cases (see for example International Transport Roth GMBH v. SSHD [2002] 3WLR 344) but do not arise in the present case where only Article 6.2 is relied upon.

It is important to keep in mind the essential nature of the offence prescribed by section 444(1). Whilst it is fairly described as an offence of strict liability, it is not one built upon any reversal of the burden of proof. To obtain a conviction, a local authority must prove to the criminal standard (1) that the child is a registered pupil at a relevant school; (2) that he is of compulsory school age; (3) that he has failed to attend regularly; and (4) in a case where such an issue is raised, that the reason for absence was not with leave or by reason of his sickness or any unavoidable cause. I have previously referred to the restricted way in which this fourth requirement has been interpreted in the courts. A reverse burden does arise in relation to section 444(4) (walking distance and transport) and section 444(6) (children of no fixed abode) but nothing in this case turns on that. It follows that the case for the Claimant is not based on the most obvious concern of Article 6.2 which is the presumption of innocence.

In Salabiaku the Strasbourg Court emphasised the words “proved guilty according to law” in Article 6.2 and held that the “law” in question is not to be construed exclusively with reference to domestic law. However, the question is whether Article 6.2 provides a criterion against which the substance of a domestic offence can be scrutinised or whether it is confined to procedural matters and the way in which such an offence may be proved. I have no doubt that the issue in Salabiaku was of the latter rather than of the former kind. It related to the method of proof of the customs offence and the deployment of a presumption, akin to a reverse burden, in that regard. When, in paragraph 28, the Court referred to Article 6.2 requiring States to “confine within reasonable limits” it did so specifically in relation to “presumptions of fact or of law”. Likewise the reference to remaining “within certain limits” earlier in that paragraph. Moreover, the passage in paragraph 27 –

“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 negligence” -

does not seem to me to be alluding to conditions deriving from Article 6.2 which may impact on the substantive elements of an offence. Nor, in my judgment, does the passage in the speech of Lord Clyde in Lambert, to which I have referred, adumbrate any wider ambit of Article 6.2.

Mr. Lewis submits that this limitation of Article 6.2 to procedural and evidential matters is supported by recent cases in the Court of Appeal, Criminal Division. In Daniel [2002] EWCA Crim. 959 there was a consideration of section 354(1)(b) of the Insolvency Act 1986 and the offence of concealing a debt, in relation to which there is a defence of “no intention” on the basis of a reverse burden (section 354). In an obiter passage Auld LJ said (para 34):

“In determining the essentials of an offence, courts should also keep in mind the distinction between procedural guarantees provided by Article 6(2) and the substantive elements of the offence, a distinction that the Strasbourg Court has now acknowledged in the civil sphere in Z & Ors v. United Kingdom [2002] 34 EHRR 97, at 138, paras 100-101, when reviewing its decision in Osman v. United Kingdom [2000] 29 EHRR 245, at paras 138-139. As Paul Roberts has argued, in an article entitled The Presumption of Innocence Brought Home? Kebilene Deconstructed [2002] 118 LQR 41, at 50:

‘Article 6(2) has no bearing on the reduction or elimination of mens rea requirements, and is therefore perfectly compatible with offences of strict or even absolute liability.’”

I interpolate at this point that, in relation to the ambit of Article 6.1 in a civil context (the subject-matter of Z and Others and Osman), the House of Lords has since the hearing of the present case emphasised the procedural as opposed to the substantive scope of Article 6: see Matthews v. Minister of Defence [2003] 2 WLR 577.

In Muhammed [2002] EWCA Crim. 1856 the Appellant had been convicted of an offence under section 362(1)(a) of the Insolvency Act which arises where a bankrupt “in the two years before the petition, materially contributed to, or increased the extent of, his insolvency by gambling or by rash and hazardous speculations”. The significant feature of the offence is that part of the actus reus – the bankruptcy petition and the bankruptcy to which it gives rise – does not exist and may never come to exist at the time of the gambling or speculations. The argument centred upon Article 7 of the ECHR and retrospectivity. However, having held that the offence under section 362 (1)(a) did not offend against the principle of legal certainty or against Article 7 (in relation to which it was held to be proportionate), Dyson LJ said, citing Salabiaku para 27, (at paras 32-33):

“We should add that, so far as concerns the ECHR, there is nothing objectionable in principle with strict liability offences….In our judgment, therefore, there is nothing in the ECHR and in particular Article 7 which requires us to reach a different conclusion from that which we expressed …”

That conclusion was that the offence under section 362(1)(a) is one of strict liability. I again observe that, so far as Article 6.2 is concerned, this passage is strictly obiter.

The third of these recent authorities relied upon by Mr. Lewis is Sliney v. London Borough of Havering [2002] EWCA Crim 2558 which concerned the offence under section 92 of the Trade Marks Act 1994. The issue was a reverse burden defence and the significance of Article 6.2. However, it is not obvious that the judgment, paras 31-34, illuminates the issue in the present case.

It has to be recognised that none of these three cases is clear authority for the proposition at the heart of Mr. Lewis’s submissions but, at the very least, their approach is consistent with it and provides some support for it. For his part, Mr. Owen relies on the Strasbourg admissibility decision in Hansen. By section 2(1) (a) of the Human Rights Act this Court is bound “to take into account” any judgment, decision, declaration or advisory opinion of the Strasbourg Court. I agree that, in Hansen, the Court’s approach was to test the substance of a strict liability offence against the criteria of “reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence”, by reference to Article 6.2. However there are important features of Hansen which concern me. First, it was an admissibility decision and not a substantive one. Whilst it is to be viewed with respect and taken into account, as an admissibility decision it carries less weight than a substantive decision. To that extent it is broadly comparable with a permission decision in this jurisdiction,, absent the Practice Direction. Secondly, to the extent that Hansen is expressly based on paragraphs 27 and 28 of Salabiaku, in my judgment, and with the greatest respect, it goes further than, and in so doing misinterprets Salabiaku which, as I have held, is limited to procedural and evidential rather than substantive matters. Thirdly, counsel have not been able to find any subsequent case in which Hansen, to the extent that it purports to expand Salabiaku, has been followed. Indeed, if I may say so, it appears rapidly to have achieved a degree of obscurity. Having taken account of it, for all those reasons I am not disposed to follow it.

In the course of submissions we were referred to the leading texts and literature. Lester and Pannick, Human Rights, Law and Practice (1999) state at para. 4.6.59) that offences of strict liability “do not violate art. 6(2) providing the prosecution retains the burden of proving the commission of the offence”. Clayton and Tomlinson, The Law of Human Rights, say (at para 11.238) that “strict liability offences, which require no mens rea element, will not be a violation of Article 6(2)”. Both tests cite Salabiaku in support of their propositions. There is a more equivocal analysis in Emmerson and Ashworth, Human Rights and Criminal Justice (paras 9-63 – 9-65) but it does not dissuade me from the view I have taken. I should add that Mr. Owen also took us to the South African case of State v. Coetzee [1997] 2 LAC 1 and the critique of it by Professor Paizes in (1998) 11 SACJ 409. Their concern is of course with the South African constitution. The Professor is a zealous opponent of strict liability in the criminal law. Reading the case and the critique was enriching but they do not bear upon the present case.

In my judgment, for the reasons I have given, neither Salabiaku nor anything else relied upon by Mr. Owen in his formidable submissions provides a basis for holding section 444(1) to be incompatible with Article 6.2. Accordingly I would answer the first of the questions posed by the Case Stated in the affirmative and the second does not arise.

Since this judgment was drafted two further authorities have been brought to our attention by counsel, namely Reg v. ARG and SMR [2002] EWCA Crim 1992 and Reg (Grundy & Co Excavations Ltd and Parry v. Halton Division Magistrates’ Court and the Forestry Commission [2003] EWHC Admin 272. To the extent that they address the application of Article 6.2 to strict liability offences, they are entirely consistent with the conclusion I have just expressed. My impression is that, in the present case, we have had the benefit of fuller submissions on this issue. For example, Hansen does not appear to have been cited in the other cases. With the benefit of fuller submissions, I am relieved to discover that I have come to substantially the same conclusion.

Justification

Having held that Article 6.2 is not engaged, it is not strictly necessary to address the issue of justification which would have arisen if Article 6.2 had been engaged. Nevertheless, having received full submissions and in deference to counsel’s arguments, I propose to consider it. I approach it on the basis that the “reasonable limits” test referred to in Salabiaku imports a proportionality test of the customary kind. (See the speech of Lord Steyn in R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532, para 27, approving the threefold test set out by Lord Clyde in de Freitas v. Permanent Secretary of Ministry of Agriculture [1999] 1 A C69, 80).

The Secretary of State has filed evidence in the form of a witness statement of Sheila Scales who is the civil servant responsible for the Department for Education and Skills’ key targets in the areas of behaviour and attendance, including cutting the rate of truancy by ten percent by 2004. She refers to the prevention of unauthorised absences from school as an important aspect of government policy. She explains:

“At present, each school day, around 50,000 pupils do not attend school, those absences being unauthorised, and 7.7 million school days a year are lost. Overall unauthorised absence has remained constant at approximately 0.7 per cent since attendance data were first published in 1994. The Youth Cohort Study (2001) found that 34 per cent of year eleven pupils had been absent for at least a day or lesson with no good reason and 4 per cent of these children admitted to unauthorised absence for more than one day at a time…..Unauthorised absence from school severely effects young people’s life chances. Unauthorised absence is inextricably linked to educational under achievement. Pupils who persistently have unauthorised absences have been found to be much more likely to achieve no GCSEs A* to G than young people who regularly attend school…only 10% of pupils who had persistent unauthorised absence achieve five GCSEs A* to C compared with 58% of pupils who had no truancy. Pupils with unauthorised absences are less likely to remain in education, training or employment after leaving school. There is also a link between crime and unauthorised absences. A Youth Justice Board Survey in 2002 found that two thirds of children who regularly missed school without permission had offended as compared to less than one third of children who attend regularly.”

Against this background it cannot be disputed that the offence prescribed by section 444(1) seeks to achieve a legitimate objective, namely ensuring that parents fulfil their responsibility to secure that registered pupils attend school regularly. The more difficult question is whether the imposition of criminal liability without a fault requirement goes further than is necessary to achieve that legitimate objective.

Mr. Owen submits that although a conviction under section 444(1) connotes no finding of personal fault on the part of the parent, such a conviction nevertheless carries with it a degree of social stigma. He submits that it is disproportionate to impose a liability on a parent in respect of which the actus reas (failure to attend regularly) is that of the child. He refers to it as a kind of vicarious liability and contends that, because a parent may incur the liability without knowledge of the absence and without culpability, any deterrent effect may be a fiction. He further submits that to impose strict liability upon a parent is different in kind from imposing such a liability in such areas as health and safety or environmental protection. He further submits that the disproportionate nature of the offence is manifest from the fact that the liability may attach not only to a parent with day to day responsibility for the child but also to an absent parent, even one who is enjoined by court order from having any contact with the child.

The case for the Secretary of State is that the section 444(1) offence has for over half a century provided a relatively straightforward way of ensuring that parents comply with their duty. The witness statement of Sheila Scales states:

“The offence is simple and relatively easy to prove. There is no liability if the child has leave to be away from school or is prevented from attending by illness or other unavoidable cause…and there is a defence if the child does not live within walking distance…the penalty is limited to a fine. Prosecutions can only be brought by a Local Education Authority. This straightforward, easily provable offence, with limited penal consequences, is considered to be a useful tool within the local education authority armoury to assist them in making parents face up to and discharge their responsibilities and enforcing the parental duty to ensure that children receive full time education.”

She then invites the court to view section 444 (1) in context. The predecessor to the Department for Education and Skills issued guidance in Circular 10/99 which states that schools should contact parents on any day a registered pupil of compulsory school age is absent without explanation, including cases where the pupil skips lessons after registration. Further guidance is given in Circular 11/99, which states that local education authorities “must judge whether and when to prosecute on a case by case basis”. The statutory context is also important. Only a local education authority may institute a prosecution (section 446) and, by section 447(1):

“Before instituting proceedings for an offence under section…444, a local education authority shall consider whether is would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child.”

Moreover, the court before which a parent is charged under section 444(1)

“may direct that the local authority instituting the proceedings apply for an education supervision order with respect to the child unless the authority, having consulted the appropriate local authority, decide that the child’s welfare will be satisfactorily safeguarded even though no education supervision order is made.” (section 447(2)).

The suggestion is that all this renders the strict liability offence reasonable and proportionate.

It seems to me that in relation to any offence of strict liability, indeed in relation to many offences with a fault requirement, it is not difficult to imagine circumstances in which, whilst the offence may technically have been committed, a prosecution serves no useful purpose and the appropriate disposal upon conviction may be by means of an absolute discharge. The cases of Crump v. Gilmore and Bath and Somerset District Council v. Warman (see paras 8 and 9 above) are examples in relation to section 444(1). Is there a significant risk of an undesirable prosecution resulting in an unjust conviction under section 444(1)? In my judgment there is not. Of course, I take the point about Crump v. Gilmore (which was over thirty years ago) and Warman. On the other hand, I have regard to the present context and the reality. I attach importance to the fact that only a local education authority may institute a prosecution and to the fact that before instituting proceedings, it must consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child”. In the event of proceedings being instituted against a blameless parent, I would expect representations to be made to the court on behalf of the parent inviting the court to direct the local education authority to apply for an education supervision order under section 447(2). In any event, the wholly ignorant and blameless parent in respect of a child who does not attend school regularly ought to be an extreme rarity. There are detailed rules requiring the twice daily registration of attendance and absence (see Education (Pupil Registration) Regulations 1995) and, pursuant to Circular 10/99, any unexplained absence should be made known by the school to the parent without delay. I regard these as important safeguards.

Where there is a prosecution to conviction it is significant that the punishment cannot exceed a limited fine. Whilst I accept that it may be accompanied by a degree of social stigma, this has to be considered in the context of the safeguards to which I have referred and the legitimate aim of section 444(1). For my part I do not consider that this strict liability offence has made “an excessive inroad into the right to a fair trial” (see R. v. A. (No. 2) [2002] 1AC 45 at para 36 per Lord Steyn). In any event, the context requires “paying due regard to the choice which the legislature has made when striking (the) balance, particularly where social or economic policy is involved” see Davis v. Health and Safety Executive [2002] EWCA Crim 2949 at para 10 per Tuckey LJ).

For these reasons, I have come to the conclusion that if Articles 6.2 is engaged, the strict liability offence is contained within reasonable limits and is proportionate.

It is appropriate to refer to two other matters. First, I should explain the fact that this case has been heard by a Divisional Court comprising two High Court Judges and without the benefit of a Lord Justice of Appeal. It was originally listed before me sitting alone. When I read the papers I took the view that it ought to be heard by a Divisional Court. Upon enquiry, there was no available Lord Justice. It was considered undesirable to adjourn the case and, with the approval of the Lord Chief Justice, the court sat with two High Court Judges. Secondly, although we were initially minded to make an order restricting publicity pursuant to section 39 of the Children and Young Persons Act, it transpired that there had been unrestricted reporting of the hearings in the Magistrates Court and the Crown Court and significant reporting of the appeal to this court on the morning the case was listed to begin. In the circumstances, and regrettably, we did not think it right to make an order under section 39.

I agree with Maurice Kay J that this application fails on the grounds that Article 6.2 does not impose any restrictions on the power of Parliament to create strict liability offences. It follows that the courts are not entitled to use Article 6.2 to import a defence into a strict liability offence where Parliament has not done so, nor can they make any declaration of incompatibility because of the absence of any such defence. On this fundamental ground this application must fail. However, partly in deference to the careful and attractive arguments advanced by Mr Owen Q.C for the claimant, and also because I have the misfortune to take a different view from Maurice Kay J as to whether section 444(1) of the Education Act 1996 would infringe Article 6.2 if that provision did permit strict liability offences to be reviewed, I have prepared a short judgment of my own. I gratefully adopt Maurice Kay J’s account of the background to this appeal, and his recitation of the relevant statutory provisions. I will not repeat them here.

In general, English law has set its face against offences of strict liability. There is a presumption that mens rea is an element of a criminal offence, although the nature of a presumption of this nature is that it has to give way to Parliament’s clearly expressed intention –whether express or implied- to the contrary. In Gammon (Hong Kong) Ltd. V Attorney General of Hong Kong [1985] AC1, Lord Scarman set out the following five propositions when giving the judgment of the Privy Council:

The strength of this presumption was strongly emphasised by the House of Lords in B (a Minor) v D.P.P.[2000}2 AC 428. The facts of that case were far removed from this; the defendant had been charged with inciting a girl under the age of 14 to commit an act of gross indecency. The issue was whether a genuine belief that she was over that age was a defence. Their Lordships held that it was, and that it was immaterial whether the defendant had reasonable grounds for his belief or not. Their Lordships relied upon the presumption. Lord Steyn referred with approval to a passage from Cross on Statutory Interpretation, 3^rd. edn (1995) p.166 where he referred to such presumptions as “constitutional principles which are not easily displaced by a statutory text”. Lord Hutton emphasised that the test is not whether it is a reasonable implication that Parliament has ruled out mens rea as a constituent part of the offence, but whether it is a necessary implication.

Mr Owen submits that one effect of Article 6.2 when read with Section 3 of the Human Rights Act 1998 is to require the courts to imply mens rea, provided such implication can be made consistently with the statutory language, even where it could not properly be implied as a result of applying these principles of domestic law. If it cannot be so read, then the courts should make a declaration of incompatibility under section 4 of the 1998 Act. It should be said that it is not always clear what the importation of mens rea involves, particularly where the offence is one of omission rather than commission. However, it is not necessary for us to swim in those murky waters. In this case Mr Owen submits that the court should require an element of fault, so that a parent who has taken reasonable care to secure the attendance of his or her child should not be held culpable.

The only qualification to the obligation to imply mens rea is if Lord Scarman’s fifth principle is applicable. Translating that into the concepts of Convention law, Mr Owen submits that it needs to be shown that the creation of a strict liability offence is justified. This means that the exclusion of any defence of lack of fault must be shown to be both necessary to secure the objective which the statute is designed to achieve, and to be proportionate to that objective.

Section 444(1) has been construed so as to preclude any defence once it is established that the child has failed to attend school without having any of the specified justified reasons: see in particular Jenkins v Howells [1949] 2KB 218 and Crump v Gilmore (1969) 68 LGR 56 which are discussed in the judgment of Maurice Kay J. The Crump case demonstrates that even lack of knowledge that the child is failing to attend school is no defence. These cases focussed exclusively on the statutory language; they are decisions of the Divisional Court and in both cases the courts neither cited nor were they apparently referred to any authorities at all. Nonetheless, we are bound by those decisions: see R v Greater Manchester Council ex p.Tal [1985]Q.B.67. Moreover the premise on which we are to determine this appeal is that the offence is a strict liability offence.

Given the willingness with which the courts now imply some concept of mens rea into offences which on their face appear to create strict liability, I am far from satisfied that prior to the introduction of section 444(1A), the appellate courts would necessarily have followed these decisions. Section 444(1A) creates liability where the parent knows that the child is failing to attend school and fails without reasonable justification to cause him to do so. But whether they would have or not, it seems to me no longer possible to contend that Parliament must have intended a concept of mens rea to be implied into section 444(1) when it has retained that provision together with a separate and discrete offence in section 444(1A) where liability depends on fault. This is confirmed by the fact that the strict liability offence in section 444(1) must be considered by the court as an alternative verdict to the liability in section 444(1A): see section 444(8B). Accordingly, if the presumption is not able to secure the implication of a no fault defence, the only way in which Parliament’s will can be questioned is if it infringes the Convention.

Mr Owen submits that section 444(1) does precisely that. There are two distinct stages in his argument. First, he has to establish that Convention jurisprudence entitles the courts to question strict liability offences and to hold that they will infringe the safeguards conferred by Article 6.2, absent specific justification. Second, assuming that Article 6.2 does effectively confer this power on the courts, the court must be satisfied that there is no justification for strict liability in the circumstances of this case. It is common ground that the onus would be on the Secretary of State to demonstrate justification.

The appellant submits that both authority and policy support his contention that Article 6 regulates the adoption of strict liability offences. As to authority, he submits that the European Court itself has held in Salabiaku v France [1988] 13 EHRR 379 that in a suitable case crimes of strict liability may be reviewed under Article 6.2 so as to confer defences which the provision purports to deny. That decision was in turn followed in Hansen v Denmark (Applicn No. 28971/95, 16 March 2000) which although only a decision of the Commission on the question of admissibility is, he submits, nonetheless additional and independent support for his contention. In the light of those authorities he says that we plainly have the duty to test section 444(1) against the presumption that there should be a no fault defence. He accepts that Salabiaku itself states in terms that strict liability offences do not inevitably infringe Article 6, but submits that the proper principle is that they should only be permitted if justified.

The second and closely related policy argument is that it would lead to bizarre and artificial results if the courts were not to exercise this power. It is well established that the provisions of a statute which place the burden of proof on the defendant will engage Article 6.2, and the courts will require in appropriate cases that it should be placed on the prosecution, with perhaps an evidential burden only on the accused. There are two recent decisions of the House of Lords which have dealt with such provisions: see R v A [2001] UKHL 25; [2002] 1AC 45, and R v Lambert [2001] UKHL37; [2002] 2 AC 545. If the courts can hold that a defence infringes Article 6.2 because it imposes too great a burden on the accused, it would be curious indeed if the court were unable to question a statute identical in every respect save that no defence had been provided at all. It would mean that a state could effectively avoid the consequences of a ruling that the defence as framed was in conflict with Article 6.2 because it disproportionately placed the burden on the accused to establish some fact, merely by repealing that defence altogether. If the defendants’ submissions were right, there would be no basis for the courts then to review the statute, unless it were to conflict with some other Convention principle. To put the point more succinctly, if the courts can say that a criminal offence infringes Article 6.2 if a defence exists but is too restrictive, they must surely be able to say in an appropriate case that the Article is likewise infringed if no defence exists at all

There are two features of this argument that merit attention. First, the effect of importing a defence into a statutory crime involves altering the substance of the offence itself. What is being said here is not that the trial was unfair, or that there was any defect in the procedures before the magistrates; it is that the law itself as applied by the court is unfair. It ought to provide for a defence, and it does not do so. So the argument is directed at the content of the law rather than the process of the trial.

I reject Mr Owen’s submissions. I do not think that Salabiaku –admittedly not an easy case to understand- establishes the principle for which Mr. Owen contends, for the reasons Maurice Kay J gives. . I gratefully adopt his analysis of both that and the Hansen decisions. I accept, however, that one of the consequences of the courts not having this power is that it will sometimes be fortuitous whether a particular statute can be reviewed under Article 6 or not. It may be a matter of chance how a criminal provision is framed, and yet the power of the courts to intervene will depend on whether it can find a legitimate peg on which to hang Convention principles. For example, in Salabiaku itself the European Court of Human Rights was able to require a defence of what it described as “force majeure” to qualify an apparently irrebuttable presumption that possession of certain contraband goods was sufficient to establish guilt to a charge of smuggling, precisely because it was formulated as a presumption. However, as Mr Owen submits, if he is wrong in his submissions then it means that they could not have questioned an offence which simply made possession in the airport of certain contraband goods itself an offence. I also accept that the logic of rejecting Mr Owen’s arguments is that a state’s laws are subject to fuller review when they include a defence which places the burden on the defence than they are when no defence at all is conferred.

However, it seems to me that this inevitably follows simply from the principle that the purpose of Article 6 is to ensure that a trial is conducted fairly. I recognise, as Mr Owen points out, that the Convention jurisprudence has developed certain principles of procedural fairness, such as the right to silence and the privilege against self incrimination, which are not to be found in terms in Article 6 itself. However, they do not touch in any way the substance of the laws which a state has imposed. Strasbourg has no power to question the substance of the laws unless they contravene some specific Convention Article. In my judgment the courts should be slow to extend the control over the content of the laws by a creative construction of Article 6. The European Court of Human Rights initially did so in the much criticised and highly controversial decision of Osman v United Kingdom (1998) 29 EHRR 245 but wisely retreated in the later case of Z v United Kingdom (2001) 34 EHHR 97. I would with respect entirely agree with the observations of Auld LJ in the case of R v Daniel [2002] EWCA Crim 959 when he emphasised the importance of distinguishing between the substantive elements of the offence and the procedural guarantees of a fair trial. (The relevant extract of his judgment is reproduced by Maurice Kay J at paragraph 19 of his judgment.) Similar observations to the effect that Article 6 is not concerned with the fairness of substantive offences themselves, and that strict liability offences do not infringe that provision, are found in the decision of the Criminal Division of the Court of Appeal in R v. ARG,SMR [2002] EWCA Crim 1992.

Since hearing argument in this case, the House of Lords has delivered its judgment in Matthews v Minister of Defence [2003] 2 WLR 577. Their Lordships unanimously held that section 10 of the Crown Proceedings Act 1948, which prevents a member of the armed services from suing the Crown for injuries received while acting in that capacity did not infringe Article 6. In the course of giving judgment, Lord Bingham commented (para 3), admittedly in the context of Article 6.1, that Article 6 does not guarantee any particular content of civil rights. Moreover, the significance of the distinction between procedural and substantive rights was one emphasised by all their Lordships: see e.g. Lord Hope at para.51; Lord Millett at para. 79; and Lord Walker at para.122. As their Lordships made clear, it is often very difficult to identify on which side of the substantive/procedural divide a particular claim falls. But in this case I have no doubt that the implication of a defence which is not otherwise available clearly is a substantive matter.

Lord Hoffmann observed that the real issue in determining the scope of Article 6 is not the question whether a right can properly be classified as substantive or procedural, but rather whether the laws as framed contravene the principles of the separation of powers and the rule of law. The rule of law itself is a slippery concept, but Lord Hoffmann is clearly emphasising, the real purpose behind Article 6 is to ensure that matters which ought to be subject to judicial determination are so subject, and that the courts must adopt fair procedures in the course of their adjudication. On this analysis also it seems to me that it cannot be said that the existence of strict liability laws, passed by Parliament and enforced fairly and indiscriminately, can be said to trespass on the proper functioning of the courts.

It follows that in my view Mr Owen is contending for a principle which would infringe the integrity of the Convention jurisprudence. There is much to be said for such a principle, and something very akin to it has been developed by the common law, but I have doubts whether it could properly be brought within the scope of Article 6, even recognising that the Convention is a living instrument whose interpretation may change over time. In any event, it is not for this court to make such a singular leap from procedure to substance, and I resist the enticing overtures of Mr Owen to do so.

I turn briefly to consider the issue of justification. The court has considered a witness statement from Sheila Scales, a civil servant within the Department for Education and Skills. I refer to the relevant passage of that statement set out at para.26 of Maurice Kay J.’s judgment. I entirely agree that it demonstrates the justification for imposing duties on parents to help to try to secure the attendance of their children at school. The relevant question, however, is whether it is proportionate to that objective to impose criminal liability without fault, or, indeed, without even any knowledge that the child is not attending school. Does the plainly desirable social policy of securing school attendance justify the imposition of (admittedly small) criminal penalties, even on the parent who has done his or her honest best and taken reasonable steps to achieve that objective? In this context I make the obvious but nevertheless relevant observation that the parent is being made liable for the failure of a third party- the child- who has a mind of his or her own capable of frustrating the best of parental endeavours. Whilst it is not strictly accurate to describe this as a “vicarious” liability, as Mr Owen contends, since the child is not in breach of any duty cast directly on him or her, nonetheless it must be recognised that liability is being imposed for failing to achieve a result which simply cannot in some cases be secured

The alleged justification for imposing such liability as explained by Ms. Scales, is as follows:

“The offence is simple and relatively easy to prove……This straightforward, easily provable offence, with limited penal consequences, is considered to be a useful tool within the local education authority armoury to assist them in making parents face up to and discharge their responsibilities and enforcing the parental duty to ensure that children receive full time education.”

I do not consider that this meets the burden of proving justification. No doubt it is convenient for the prosecution to have an easily provable offence. That is always the case, but it is hardly a justification for doing away with mens rea. The premise in this part of the argument is that the lack of mens rea must be justified, and the benefits to the prosecutor cannot conceivably constitute such justification otherwise that safeguard could always be overridden. In any event, in my opinion any problems of proof could in large part be dealt with by imposing a reverse burden on the parent to require him or her to demonstrate what steps had been taken and to satisfy the court that they were reasonable.

Nor in my view is it enough simply to assert that the existence of a strict liability offence is a useful tool for the authorities. It is far from self evident that it will be. Indeed, it may be thought positively to discourage parents who need encouragement from taking responsibility for their children for them to know that they may be taken to court even if they do all they can to secure the child’s school attendance. I would have expected some indication, for example, of the circumstances in which it might be thought proper to prosecute a parent under section 444(1) rather than using section 444(1A), and why it is considered that this would help to achieve the objective of securing attendance. Does this assumption rely on anything more than impression, or perhaps anecdotal information?

Mr. Lewis for the Secretary of State strongly contended that it was relevant in assessing the justification for these provisions to analyse them in context. He referred to various features of the legislation which he submitted demonstrates that prosecutions were carefully controlled. For example, the relevant guidance ensures that in practice parents will be informed that their child is not attending and consequently the unusual situation arising in Crump v Gilmore ought not to occur. Only the local education authority may institute a prosecution (s.446). Moreover, before doing so it must consider the option of applying for an education supervision order with respect to the child (s.447). The effect of this order is to place the child’s education under the supervision of the designated local education authority. Exceptionally, if the child is beyond parental control, the authority can seek a care order from the courts so as to take the child away from the home environment altogether.

I do not consider that these arguments advance Mr. Lewis’ case. Indeed, they come very close to a submission that in fact there will be no prosecution unless there is fault on behalf of a defendant. It seems to me to be no answer to a charge that these provisions are not justified or are unfair to say that the education authority controls the prosecution and can ensure that there is only a prosecution in an appropriate case. Will it in general be an appropriate case only if the authority considers that there is fault? If so, then it means that the authority instead of a court will be deciding as a matter of executive discretion whether there is fault. No doubt that is highly convenient to the prosecution, but it is constitutionally unacceptable to permit the executive to make that decision. That is precisely what Article 6 is trying to avoid. Conversely, if an appropriate case can include cases where the parents are not at fault, notwithstanding the battery of safeguards identified by Mr Lewis, then it is necessary to ask what such exceptional prosecutions will achieve. The fact that the prosecution of blameless persons will be rare or that there are other routes for achieving the objectives of the statute seem to me to point strongly against the need for the legislation at all rather than in support of it. Furthermore, it is of no benefit to an innocent parent successfully prosecuted to be told that he or she is something of a rare specimen.

Moreover, it must be remembered that where a prosecution is now brought under section 444(1A), the court can convict as an alternative under section 444(1). Accordingly, even if the education authority had a general policy of seeking to prosecute only those whom it considered to be at fault in some way, liability under section 444(1) would no doubt frequently be established if the defendant successfully resisted the liability based on fault.

I recognise that the penalties are small, being only a fine, and that is a factor which can properly be considered when determining whether an offence of strict liability is justified. However, in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one’s children, or incompetence at parenting, which in the case of the blameless parent will be unwarranted. It is worthy of note that in Crump and the later case of Bath and Somerset District Council v Warman [1999] ELR 81 which followed it, the Divisional Courts in both cases recommended to the magistrates that they might think it proper to give an absolute discharge. That seems to me to be consistent with the view that justice is not served by prosecuting the innocent. If they ought not to be prosecuted, neither in my view ought there to be legislation permitting them to be. I bear in mind that the courts should pay due regard to the fact that Parliament has chosen to adopt legislation of this nature. However, the onus is on the Secretary of State to satisfy the court that the provision is justifiable. Had we been able to question section 444(1) under Article 6.2, I would have held that he has failed to discharge that burden. The strict liability offence is disproportionate to the objective to be achieved.

In the event, however, this appeal fails on the grounds that Article 6 does not entitle the courts to question the justification for strict liability offences.