London Borough of Bromley v C

MR JUSTICE SULLIVAN: This is an appeal by way of case stated from a decision of the Bromley Magistrates on 14th September 2005. The facts as set out in the case are as follows:

The relevant provisions of section 444 of the Education Act 1996 are as follows:

On behalf of the appellant, Mr Hall submitted that, firstly, the magistrates had misdirected themselves and applied the wrong test and, secondly, that, even if they had applied the correct test, there was only one answer which was reasonably open to them, namely that the children had not attended regularly at the school. He submitted that any reasonable bench of magistrates was bound to conclude that each of the three children had failed to attend regularly upon the basis of the 18 holiday absences alone, regardless of what explanation was provided for the other absences. The justices appeared to have excluded the holidays from consideration and to have approached the matter on the basis that it was for them to consider, rather than the school, whether or not the holidays were justified, i.e. whether or not leave of absence should have been granted by the school. The Act provided that that was a matter for the school to decide and not the magistrates.

So far as the non-holiday absences were concerned, the magistrates had failed to apply the statutory test, were the children prevented from attending by reason of sickness or some other unavoidable cause, and had simply asked themselves whether "good and cogent explanations" for the other absences had been provided.

So far as section 444(4) was concerned, the case stated was less than satisfactory in that it was not clear from paragraph 6 of the case whether or not the magistrates had taken account of the defence advanced on behalf of the respondent under section 444(4). There were findings of fact, see paragraphs 2(g), (i) and (j), but the findings in paragraphs (i) and (j) were mutually contradictory.

Mr Hall submitted that the answers to the questions posed by the magistrates were that the certificate signed by the head teacher was evidence of attendance levels, but was not conclusive evidence, and he accepted that the justices were entitled, and indeed bound, to take account of all relevant evidence in deciding the question whether the children had failed to attend school regularly.

So far as question (b) was concerned, he submitted that in the circumstances of the present case the taking of the unauthorised holidays meant that the children had failed to attend school regularly.

The answer to question (c) was that section 444(4)(b) did not, of itself, create a duty on a local education authority, but it provided a potential defence to an allegation contrary to section 444(1), but not on the facts of the present case.

He submitted the answer to question (d) was that no duty was created by the section and that where a parent chose to keep her children at a more distant school, where there were nearer schools available, it would be unlikely that the parent would then be able to avail him or herself of the defence under section 444(4)(b).

On behalf of the respondent, Mr Dixon submitted that whether there was regular attendance and whether any of the children were prevented from attending by reason of sickness, or any other unavoidable cause, were essentially questions of fact and degree for the magistrates. This court could interfere with the magistrates' conclusions only if it could be demonstrated that the magistrates had erred in law. He submitted that the magistrates were entitled to conclude, in the light of all of the evidence, that the unauthorised holidays did not on their own constitute a failure to secure regular attendance. The Act does not prohibit the taking of unauthorised holidays. In finding that the holidays were "justified", the justices were intending to indicate that, upon the evidence before them, the holidays did not, in and of themselves, amount to a failure to secure regular attendance. He submitted that that was a conclusion which could not be categorised as irrational. So far as the other absences were concerned, the magistrates, in concluding that the respondent, who gave lengthy evidence before them, had provided good and cogent explanations, were in effect saying that they were satisfied that the other absences were due to either sickness or unavoidable cause.

While the fact that the school was in excess of eight miles away was mentioned as part of the background, it was very much mentioned as a fall back position on behalf of the respondent, and it was therefore not surprising that the magistrates had made no finding in respect of the defence afforded by subsection 444(4) and it had not played any part in their conclusions.

He submitted that in the circumstances questions (c) and (d) simply did not arise. In answer to question (a), the magistrates were bound to have regard to all of the evidence and had done so. In answer to question (b), he submitted that on the facts of this particular case the magistrates' conclusion in paragraph 6(b) of the case stated could not be said to be Wednesbury unreasonable.

It is common ground that the answer to question (a) is "no". The record of attendance recorded by the school was merely the starting point. It could be received as evidence by virtue of section 566, but that section does not provide that the record shall be treated as conclusive. The magistrates were therefore entitled, and indeed bound, to consider the respondent's explanation for the recorded absences and to decide whether there was regular school attendance in the light of all of the evidence, including the school's record of attendance.

On the facts as found in the case, and in the light of the manner in which the magistrates expressed their opinion in paragraph 6, it seems to me that questions (c) and (d) do not arise. The magistrates do not appear to have relied on subsection (4) in reaching their conclusions in paragraph 6 of the case. Although the rival submissions under section 444(4) are recorded, the magistrates did not purport to resolve them. While it is true there are findings of fact in paragraphs 2(g), (i) and (j) which bear upon section 444(4), the problem is that the findings in paragraph (i) and (j) would appear to cancel each other out, and there is no subsequent attempt by the magistrates to draw the threads together in their conclusions. In these circumstances, I would not answer questions (c) and (d) in the abstract and would accept Mr Dixon's submission that the magistrates were entitled to conclude as a question of fact that, apart from the absences for holidays, the respondent "had provided good and cogent explanations for them". In so concluding, I would further accept, perhaps somewhat benevolently so far as the magistrates' reasoning is concerned, that the magistrates, in paragraph 6(c), were applying in their own words the statutory test of absence by reason of sickness or any unavoidable cause and were, in effect, accepting the respondent's submissions set out in paragraph 4(b) of the case stated.

That leaves question (b). Although the magistrates posed the question in the abstract, "Does the taking of an unauthorised holiday of itself amount to failing to secure regular school attendance?", the real question is whether any reasonable bench of magistrates could have concluded that there was regular attendance by these three children if 18 out of a possible 114 attendances had been missed because of two unauthorised holidays. There could be no suggestion that the holidays were with leave or that they fell within the description of an unavoidable cause of absence under subsection (3).

The magistrates appear to have been reluctant to grasp this nettle. Indeed, it would appear that in paragraph 6(b) of the case they carefully avoided answering the relevant statutory question, did 18 absences out of 114 possible attendances amount to regular attendance, and instead chose to answer another question: whether the holidays were in some way "justified". I have no doubt that in so doing they were not correctly directing themselves. Indeed, they may well have been confusing the offence under subsection (1A) with the offence under subsection (1) of section 444. I have set out the relevant enactments above. It will be seen that the offence under subsection (1) is one of strict liability: the question is simply whether the child has failed to attend the school regularly. Under subsection (1A) questions of the parents' knowledge and whether there is some reasonable justification for the failure to cause the child to attend school do arise, but the information laid against the respondent in the present case alleged an offence under subsection (1). It is perhaps unfortunate that the magistrates in paragraph 6(a), in expressing their opinion that the respondent "had not failed to secure regular school attendance", were echoing the words of the information which alleged that the respondent had "failed to secure the regular attendance" of the children at the school. The simple question for the magistrates to ask themselves in respect of an offence under subsection (1) was whether there was regular attendance by the children at the school.

So far as the question of whether the absences were "with leave" is concerned, it is plain that "leave", for the purposes of subsection (3)(a), means leave granted by the school, not leave which the magistrates consider might have been justified. The question is simply not one for the magistrates. It is for the school to decide whether leave should or should not be granted, and for the magistrates to decide the question of fact: has the school granted leave or not.

The contrast between paragraph 6(b) and 6(c) in the case stated is very marked. Upon the basis set out above, namely, that when the magistrates considered that the respondent had provided "good and cogent explanations for the other absences" they were intending to apply the correct statutory test but using their own words, it is noteworthy that they did not consider that there were "good and cogent explanations" for the absences on holiday. Rather, they considered that the respondent ought to have exercised "more care" regarding those absences and they also expressed the view that the absences were in their view "justified". As I have indicated, it was not for the magistrates to decide whether or not the holiday absences were "justified", and it is difficult to see the relevance of the observation that the respondent ought to have "exercised more care" regarding absences for holidays.

In summary, I would accept Mr Hall's submission that, reading the case as a whole, and in a common sense way, the magistrates effectively chose to set the holidays to one side upon the basis that they felt that in some way they were justified. In so doing, they were not applying the correct statutory test. I would readily accept the submission that it does not automatically follow that there will not have been regular attendance merely because there has been an unauthorised holiday. The question will be very much one of fact and degree in each case, but in the present case the holidays amounted to 18 unauthorised absences when set against a possible attendance of 114, or, expressed in terms of days, 9 absences out of 57 days, some 16 per cent of possible attendances.

If one sets those absences for which the magistrates found there were good and cogent explanations to one side, and adopts, as it must be presumed the magistrates did, the respondent's evidence as to the true level of attendance, the three children attended school for an average of 80 attendances (79, 80 and 81 attendances respectively: see paragraph 4(a) of the case stated).

Mr Dixon accepted that the magistrates had to have regard to all of the circumstances, including the extent to which the children had attended the school. Against this background of children attending for the equivalent of 40 days, their absence for the equivalent of nine days on unauthorised holidays could lead to only one conclusion; that is to say, that there had not been regular attendance. For every four and a half attendances the children had been avoidably absent on holiday for one attendance. While I acknowledge that the question was one of fact and degree for the magistrates, on these facts, even if they had correctly directed themselves, which they did not, there could have been only one conclusion; that is to say, by reason of these unauthorised holidays the three children had not attended the school regularly.

The question arises as to what the proper disposal of this case should be. We have been told that circumstances have changed since the hearing in September last year. The respondent has moved back closer to the school. Two of the children remain in the school and there is some improvement on their attendance record. In these circumstances, and bearing in mind that the offences relate to holidays that were taken in 2003 and 2004 respectively, Mr Hall accepted that it would not be in the public interest for any penalty to be imposed on the respondent, and the appellant would be content if the court made it clear that the issues of principle with which it was concerned, namely the question whether the magistrates could consider whether or not leave of absence was justified, and whether or not taking these particular holidays in these circumstances could be said to have resulted in the children regularly attending the school, were not answered correctly by the magistrates.

In the circumstances, I would do no more than answer question (b) in the case as set out above, and I would be content to receive further representations as to what the appropriate order should be.

LORD JUSTICE AULD: Mr Hall, in the light of the concession that you made in the course of closing submissions, it perhaps would not be appropriate for this matter to be remitted to the magistrates. That leaves the court in this position. It has found that the magistrates' reasoning was irrational but takes the view that the matter should stop there. Now, we cannot quash the acquittal and leave the prosecution in being and not remit it to the magistrates. It seems to me, speaking for myself at the moment, that the only appropriate course is to answer the magistrates' questions in the way in which my Lord has indicated, and to which I will agree in a moment, but not to make any quashing order in respect of the committal, and of course not to remit.

MR HALL: Yes. I have the disadvantage of seeking to disagree with the court on that.

LORD JUSTICE AULD: Well, we are seeking your assistance, and also that of Mr Dixon. It seems to me that we cannot leave a prosecution in the air by quashing an acquittal where the prosecution remains live.

MR HALL: I agree. I would invite the court to set aside the acquittal on the undertaking that the appellant will discontinue the matter in the magistrates.

LORD JUSTICE AULD: What do you say about that, Mr Dixon?

MR DIXON: My Lord, I would subscribe to the view that you have outlined, in that it cannot be left in the air, and that therefore it should remain as an acquittal, but the reasons that have been given by the court are quite clearly set out as matters of principle for the future.

LORD JUSTICE AULD: The difficulty in Mr Hall's suggestion, on reflection, is the matter would remaining hanging in the air unless it were taken back to the magistrates and the local education authority, as it were, to offer no evidence on the matter, and whether they could do that in the light of the concluded proceedings before the magistrates, and the failure of an order of this court to quash the acquittal, I doubt. I am afraid we are back to my original instinct here that the matter would have to lie where it is.

MR HALL: The difficulty is -- I now have the figures for the attendance of the three children, and they are still averaging more, 90 per cent now. It is better, but it is not actually satisfactory from the point of view of those that instruct me.

LORD JUSTICE AULD: Whatever the position at the moment, we are two years down the line, and for the matter to go back now --

MR JUSTICE SULLIVAN: It is accurate to say that they are improving, which is all the judgment says.

MR HALL: Yes. The difficulty is, let us say for the sake of argument that further proceedings were to be taken in respect of new failures, or new lack of attendances I should say, it is undesirable to have an artificial acquittal on the record. I do not know what sort of arguments could be mounted, but I could think of a few, but it is wrong in principle if the court takes the view that it was entirely wrong, for example, for it to be said on some subsequent occasion that "my client has been acquitted of these matters".

LORD JUSTICE AULD: Sometimes convictions remain on the record where, for one or other procedural record, it is too late to undo them. It is not unknown in this jurisdiction for an acquittal to remain on the record where, through the sheer lapse of time and all the other considerations that arise, particularly ones of a humanitarian nature in a case like this, that it would be quite inappropriate for the matter to be re-ventilated and questions of sanction re-opened in the court below.

MR HALL: I accept that, but ...

LORD JUSTICE AULD: The remedy here is to get your questions answered.

MR HALL: Yes. But returning to my possible solution, which is for the acquittal to be set aside, it seems to me that there are two ways of providing the termination of proceedings with the magistrates. One could offer no evidence, but one could also discontinue in the magistrates' court.

LORD JUSTICE AULD: It is not a question of offering no evidence. You have offered evidence, you would have to contemplate a further hearing, and we would not in any event be remitting the matter for a re-hearing, we would be remitting, if we were going to remit at all, with a direction to convict.

MR HALL: If that is the case, an alternative solution provided by the Courts Services Act of 2000, I do not mean this in a flippant way, it is possible, the court could impose the penalty now, because your Lordships have the power of a district judge/magistrates' court --

LORD JUSTICE AULD: On an appeal by way of case stated?

MR HALL: At any stage in the proceedings a judge of the High Court may exercise the powers of a district court or magistrates' court. There is no jurisdiction because those have been removed by the Act, and what the court could do would be to direct a conviction and impose a discharge if that is what the court saw fit.

LORD JUSTICE AULD: And you contemplate that we propose to deal with sentence as well?

MR HALL: The court could now deal with sentence, or the alternative, which has happened in some of the other cases, is that the court does direct a conviction, remits it back to the magistrates' court, but invites the magistrates to impose an absolute discharge in light of the lapse of time. I made the concession I did in argument to avoid --

LORD JUSTICE AULD: No, no, we are not holding you to it in any formal way, it is a matter of mechanics now.

MR HALL: Yes. I am troubled about the acquittal staying in the circumstances, I have to confess.

LORD JUSTICE AULD: A direction to convict. We could not direct them as to sentence.

MR HALL: No.

LORD JUSTICE AULD: We could strongly recommend that they deal with it by way of absolute discharge.

MR HALL: Yes. In the Warman(?) case that I referred to, Rose LJ said "The justices might very well think that the appropriate penalty is one of absolute discharge", and one assumes the justices listened. That was also of course a course adopted in Jenkins v Howells(?).

LORD JUSTICE AULD: Read that again to me please.

MR HALL: "The justices might very well think that the appropriate penalty is one of absolute discharge".

LORD JUSTICE AULD: That sounds like Rose LJ.

What about that, Mr Dixon?

MR DIXON: My Lord, there is no power to direct any sentence.

LORD JUSTICE AULD: No, we acknowledge that. That Rose LJ has just illustrated there.

MR DIXON: There is little point if the direction is simply one as a guideline. My opposition would remain that the acquittal is not to be quashed, that the questions have been answered and the magistrates have not been found to be wholly wrong in their approach, only in respect of certain particular aspects, and those are the matters of principle.

LORD JUSTICE AULD: Thank you.

We take the view, and I shall so express it in a moment, given what you have both said, that the proper course is, despite what my instinct was, to remit the matter to the magistrates with a direction to convict, but to indicate our view that it would not be in the public interest for any other form of disposal than one by way of absolute discharge.

It will not meet you entirely, Mr Dixon, but it gets pretty near it.

MR HALL: Can I just mention one other ancillary matter. The press have approached me about a direction in relation to publishing the children's names. The court obviously has a power --

LORD JUSTICE AULD: It is clearly, subject to anything Mr Dixon may say, and I am sure he is with you on that, appropriate that there be an order prohibiting the publication of their names or any means by which they may be identified.

MR HALL: Precisely.

MR JUSTICE SULLIVAN: So it will be their school and their names.

MR HALL: And their mother's name.

LORD JUSTICE AULD: As my Lord has emphasised in his judgment, this was a prosecution for the absolute offence under section 444(1) of the 1996 Act, of being the parent of a child of compulsory school age registered at a school who fails to attend school regularly. It was not, as it was unfortunately suggested in the wording of the charge, a prosecution under section 444(1A), an allegation requiring proof of fault, namely failure by the parent to secure regular attendance.

The only issue for the magistrates was whether the local education authority had proved, on the attendance record of each of the children, whether each of them had, in the magistrates' judgment, failed, as a matter of fact, to attend regularly. Reasons for non-attendance falling within the special defence provided by section 444(4) were irrelevant on the facts found by the magistrates. Only certain factors expressly excluded by section 444(3) from computation of the period to be considered under section 444(1) of regular failure to attend were relevant, namely absence with leave, or by reason of sickness or other unavoidable cause.

There was non-attendance without leave in the substantial periods of holiday to which my Lord has referred - leave or holidays taken without leave. There were also other periods of absence due to sickness or other unavoidable causes.

The magistrates' reasoning in paragraph 6 of the case stated, which is almost too succinct, gave rise to the suggestion that they wrongly approached this case, influenced by the incorrect wording of the charge, so as to look for reasons for all these absences as a form of justification, whether under section 444(4) or otherwise, for the degree of failure to attend which they found. However, reading the case stated by the magistrates as a whole, it seems to me that - notwithstanding the trap left for them by the wording of the charge - they did not deviate from the central issue for them, namely whether, as a matter of fact, the non-attendance, in particular that of the substantial period of unauthorised holidays, amounted in their judgment to a failure in each case of regular attendance. Their finding, expressed clearly in paragraph 6(a) of the case stated, was that it did not. It is the rationality of that finding, when put against their findings of fact as to the degree of non-attendance in each case, which is in question.

I agree with my Lord, for the reasons he has given, that, on the facts found, the magistrates did exceed the generous ambit of judgment available to them in determining whether there was regular school attendance. They could not rationally, on those facts, conclude that there was regular attendance.

Accordingly, I would answer questions (a) and (b) of the magistrates' questions as my Lord has answered them, but not answer questions (c) and (d) for the reasons he has given.

Given the length of time that has elapsed since the facts giving rise to the prosecution and the prosecution itself, and on what we have heard of the history of the respondent and her children since, the court would make the following order, after hearing submissions from counsel on the matter. It will quash the acquittal, it will remit the matter to the magistrates with a direction to convict, and in doing so it would express the view that it does not consider that it is in the public interest, in the particular circumstances of this case, that any form of disposal other than one by way of absolute discharge would be appropriate.

This case illustrates three matters capable of causing injustice in the proceedings before magistrates.

First, a failure properly to distinguish between what a local education authority seeks to prove in the charges laid, whether an absolute offence under section 444(1) or an offence requiring proof of some fault under section 444(1A).

Second, the need for magistrates, when rehearsing their findings of fact in the case stated, to identify those that are material to the charge, properly framed as it should be, and to indicate those that were material to their decision and those that were not.

Third, the need for magistrates, in expressing their findings, to identify their process of reasoning by reference to the facts they have found to be material. Succinctness is always desirable, but not such as, when coupled with references to immaterial facts, clouds their true line of reasoning.

Accordingly, the appeal is allowed with the order indicated in this judgment.

MR HALL: And in relation to the non-publication.

LORD JUSTICE AULD: And of course, as you rightly remind me, the court's directions as to non-publication.

There is one outstanding matter, and that is your request, Mr Dixon, that you have the benefit of legal aid funding extension to your instructing solicitor for her attendance today. We both take the view that you should have that, and we are grateful to you and to her for your attendance, and to you too, Mr Hall.

Are there any consequential orders sought?

MR HALL: No, thank you, my Lord.

LORD JUSTICE AULD: Thank you both for your assistance.