P, R (on the application of) v Liverpool City Magistrates

MR JUSTICE COLLINS: This is an application for a judicial review by the mother, whom I shall call P, of a child who at the material time was aged 15 against her conviction by the Liverpool Justices of an offence contrary to section 444(1A) of the Education Act 1996. Section 444, so far as material, reads as follows:

By subsection (8) the penalty in relation to an offence under subsection (1) is liability to a fine not exceeding Level 3 on the standard scale, but, by subsection (8A) it is provided that a person guilty of an offence under subsection (1A) is liable on summary conviction (a) to a fine not exceeding level 4 on the standard scale or (b) to imprisonment for a term not exceeding three months, or both. That has now been substituted, I gather, by schedule 26 of the Criminal Justice Act 2003 TO a period of 51 weeks.

The conviction in question was now a long time ago. In fact, it was on 9 September 2004. The decision was taken that an application for judicial review was appropriate rather than an appeal by way of case stated, the basis of the judicial review being that the court had misdirected itself in deciding that there was a burden of proof imposed upon the claimant to establish that she had reasonable justification for not ensuring the attendance of her son at school.

It was argued, and has since been argued, that that was a wrong approach. The argument goes further because it is submitted too that the decision that eventually was reached by the Justices was one which was irrational and in addition not only was there a misdirection as to the burden of proof but also as to the meaning of "reasonable justification" in subsection (1A).

All those matters could, and in my view should have been raised by way of case stated. The normal route for an attack alleging error of law against a decision of Justices is case stated. The time limit for case stated is 28 days as opposed to the three months which is the maximum permitted for judicial review. It would generally speaking be wrong for that the time limit to be avoided by seeking judicial review in a situation where a case stated was in fact the appropriate remedy.

However, I recognise that there are some conflicting authorities, which do not make it necessarily easy to decide whether judicial review or case stated is appropriate in the circumstances of a given case. Judicial review is obviously more appropriate where, for example, there is an issue of fact which may have to be raised and decided and which the Justices cannot have decided for themselves.

Those rather cryptic observations are intended to relate to a situation where it is alleged that there has been unfairness in the way that the Justices conducted the case, obviously where for example it is suggested that there was bias in the manner in which they conducted themselves, or the defendant in question was prevented from properly putting his or her case, or the Clerk to the Justices interfered in a way in which he should not have interfered.

There are cases in the books of judicial review which cover that sort of situation. Generally speaking, where it is alleged that Justices have misdirected themselves or got the law wrong in their approach to a decision, case stated is the appropriate way of dealing with it. Generally speaking a failure to go by way of case stated in such a situation is likely to result in a refusal of permission for judicial review on the basis that it is the wrong way of dealing with it. However, I do not propose to refuse this application on the basis that it ought to have been by way of case stated, not least because permission was granted by Sir Richard Tucker as long ago as October of 2004.

Quite why this case has taken so long to be heard, I do not know. Miss Gianota has not been able to assist in that. I will in due course endeavour to discover why that delay has taken place.

The claim does raise quite an important point in relation to the true construction of subsection (1A). Fortunately, although we do not have the facts stated in the form that would be appropriate for a case stated, there is a letter from the Magistrates, which was sent to Miss Gianota on 16 September 2004 in which are included details of the Justices' decision. It is appropriate for me to take that as indicating the findings that the Justices would have made had they been invited to state a case. As it happens, I am in as good a position in the circumstances of this case as I would have been had it been brought by way of case stated. That is another reason why it is not necessary or appropriate for the matter to be dismissed on the basis of the wrong route having been taken.

To summarise the salient facts, R was 14 at the relevant time and was a registered pupil at a comprehensive school. He had failed to attend school during years seven and eight having made 99 unauthorised absences out of a possible 122 half-day sessions. The claimant was aware that he was not attending school on a regular basis and had been in regular contact with the school education welfare department. Numerous meetings had been held in order to try to deal with her son's non-attendance.

The educational welfare officer for the relevant school gave evidence before the Justices. She indicated that she had not recommended alternative education and had not asked the school to consider that possibility, although it was for the school to recommend it, if the school thought that it was something which could be achieved. The Social Services, with whom the claimant had been in contact, had apparently not deemed the case serious enough to warrant their interference.

The problem was that apparently the son was a large boy who was reluctant to participate in physical education. There was some suggestion that he had been bullied at school because of ridicule at his size, albeit there was also apparently some indication that he may have been responsible himself for bullying. He had made it clear that he was not going to go to school. Indeed on one occasion his mother had tried physically to drag him to school, but that had resulted in what she described as a fight with her son, who was very much larger than she was, and it really was not practical for her to have done that.

In addition, the Justices heard from the head of the year in the school, who had told the court that the claimant had been in regular contact with him by telephone at least once a week and sometimes more than that. She had to his knowledge been in contact with a number of agencies concerned with education. He put it that short of physically dragging her son to school there was little more that she could do than she had already done.

The important findings by the Justices, based upon the material put before them in the evidence which I have summarised, were as follows. I quote from the reasons which were provided.

Sadly, I am told that recently the claimant's son has been involved in a serious road accident, which has resulted in him suffering permanent brain damage, and so there is no question of any further education being appropriate in any event because he needs now full-time care.

Some issues in relation to section 444(1A) were considered by the Divisional Court in London Borough of Sutton v. S [2004] EWHC 2876 (Admin). The court consisted of Thomas LJ and Fulford J. The case did not directly deal with the issue which is before me, although questions asked of the court were whether the facts found by the Magistrates were capable of amounting to a reasonable justification under section 444(1A) of the Act, and what circumstances were capable of constituting reasonable justification.

However, the court decided (and it seems that counsel was not really in a position to argue to the contrary) that the appeal was misconceived in the sense that the findings by the Magistrates could not have resulted in a conclusion other than that they did amount or could amount to reasonable justification. Accordingly, the court did not have to consider the issue that is before me.

Unfortunately, I am in the same position as the court was then in in as much as I have not had the benefit of any argument on behalf of the court or indeed the prosecuting authority. I do not think that there are any authorities that are of any direct assistance in relation to the question as to where the burden of proof should rest in the context of this case.

There is considerable learning on reverse burdens of proof in relation to Article 6 of the European Convention on Human Rights. The House of Lords has had to consider that matter in a number of cases, in particular Sheldrake v. Director of Public Prosecutions [2004] UKHL 43. Sheldrake was a case arising under section 5(2) of the Road Traffic Act which relates to being in charge of a motor vehicle whilst unfit or having consumed alcohol in excess of the prescribed limit, and which provides a defence if the defendant can show that he was not likely to drive, putting it rather broadly. Those are not the exact words of the Statute but that is the effect.

Clearly, the House of Lords decided that it did provide for the legal burden of proof of that issue to be upon the defendant. The House of Lords decided that that was lawful and was not a breach of Article 6. However, it is to be noted that Parliament had in that provision made it clear that the burden was to be on the defendant. There are many other Statutes where that has been done. It is clear that if Parliament wishes to make it plain that there is to be a burden on the defendant, it can and does say so, in terms. An example is to be found in the Prevention of Crime Act in relation to offensive weapons. Again it is made clear that a reasonable excuse for being in possession of an offensive weapon is a defence, but the defendant has to establish that defence.

There is no such provision in section 444(1A). It simply provides that the offence is created if the parent knows that his child is failing to attend regularly and fails without reasonable justification to cause him to do so. It is obvious that there is an evidential burden created by that provision. It is not sufficient for the accused to say: "Yes, I knew that he was failing to attend, but you have not proved that the failure was without reasonable justification."

If there is a failure to attend, the Justices, if no material was put before them which could support a case that there was a reasonable justification, would be bound in the circumstances to convict, but, once material is put before the Justices which could constitute a reasonable justification then the Justices must consider it and will only convict if they are satisfied to the criminal standard that there was no reasonable justification.

It is not for the accused in the circumstances of this case to prove that the failure to cause the child to attend regularly the school was without reasonable justification. I repeat, if Parliament had wanted to produce that result it could and it should have made that clear in the Statute. Whatever may be the justification for reverse burdens (and it may be that if Parliament had so decided it would have been upheld as a proper situation for such a reverse burden) the court will not assume a reverse burden unless it is driven by the clear words of the Statute to that conclusion. That is not the situation here.

It follows that I am entirely satisfied that the Justices were wrong to decide, as they did, that there was a burden upon the defence to show on the balance of probabilities that the claimant had taken all reasonable steps, as they put it, to ensure regular school attendance.

It is plain that the offence under subsection (1) is an offence of strict liability, and, if the child does not attend regularly at school the parent is by reason of that alone guilty of an offence. There may be a perfectly good reason in the sense that the parent has done all that the parent reasonably could to ensure that the child attends school. None the less the offence is in the circumstances made out.

So much is clear from Barnfather v. London Borough of Islington, a decision of the Divisional Court, [2003] EWHC 418 (Admin). As I say, that makes it clear that the offence under 444(1) is indeed an offence of strict liability.

It is perhaps to be noted that Elias J. was not persuaded that there was a good reason for the offence being treated as one of strict liability, but he had to accept that the law did not enable Article 6 to be prayed in aid in the context of that particular subsection and that particular offence.

The other matter that is raised by Miss Gianota is whether the Justices' decision, even assuming there was a burden on the defence, could be justified because they went beyond the issue of reasonable justification in as much as they decided that it was necessary for her to not only have taken all reasonable steps to ensure that her son was receiving regular schooling but also to explore all possible alternatives.

They use the expression "receiving regular schooling". The offence under 444(1A) relates to attendance at the school at which the child is registered. That is of some importance, in my view, in the light of the matters which the Justices relied on. What they said was that the mother had not attempted methods of ensuring attendance such as asking for alternative forms of education to be investigated. That would seem to be of no relevance to reasonable justification in the context of 444(1A), which is reasonable justification for a failure to cause the child to attend regularly at the school, that is to say, the school at which he is registered. The question of alternative forms of education being investigated has nothing to do with attendance at that school.

Further, they suggested that she should have enquired of Social Services whether education care proceedings were applicable. Quite apart from the fact that the evidence before them was that that was a matter for the school to institute and was a matter which could have been raised by the education welfare officer with the school, it was to say the least harsh to expect that she should have made those enquiries herself. Again it is not easy to see what relevance that would have had to attendance at the school.

On the other matter of asking the child's father to assist, there was no evidence before the Justices which would have entitled them to come to the conclusion that the child's father was someone who would have been of any assistance in that regard. They refer to him being present at one meeting with the education department. One must bear in mind that the allegation related, as I understand it, to schooling over a period of some two years in years seven and eight, so the fact that the father may have attended on one occasion is really nothing to the point. It was never suggested in evidence before the Justices that it was reasonable to believe that her son's father had any sensible input into the problem that she was facing.

If the Justices had applied their minds to the matter in a proper fashion and had concluded, as they ought to have done, that the burden of proof remained upon the prosecution once the claimant had raised the matters in evidence that were put before them, as it seems to me, they would have been bound to have reached a conclusion that she was not guilty of the offence under section 444(1A).

They expressed considerable sympathy for her. It seems to me that "reasonable justification” to cause him to attend school should be approached as a perfectly understandable English expression. It is not necessary for every possible avenue to be explored to ensure that a child is receiving regular schooling. That is not something, as I say, which is directly material to whether there is reasonable justification for a failure to cause him to attend regularly at the school at which he is registered.

It may be that in a given case alternative means of education may have to be explored, but that would be only if there was a good reason why the child could not attend the school in which he was registered.

Assuming the parent was responsible, as the claimant clearly was, and was keeping in touch with and seeking advice and assistance from the relevant authorities, if the authorities instituted that sort of alternative approach to the education of the child in question it could not, as I see it, be something which would be reasonable to expect a parent to prove, and certainly not something which would be obviously applicable to an offence under section 444(1A).

I am reluctant, in the absence of hearing full argument on the point, to go further into the question as to what can and cannot amount to reasonable justification. That seems to me to be essentially an issue of fact. That indeed was the way it was treated by the court in London Borough of Sutton v. S. The Justices must always bear in mind that the reasonable justification is to relate to the failure to cause the child to attend at the school at which he is registered, and they must look at it in that context.

It seems to me that in the circumstances, the prosecution having been brought, the Justices should have considered, had they approached it correctly, whether it was appropriate for them to exercise their powers under section 444(8B). That was a matter which was considered in London Borough of Sutton v. S. The court noted, as indeed is clearly the case, that there is a discretion under subsection (8B). It provides that the court may convict under subsection (1) if they are not satisfied that the offence is made out under subsection (1A). Thus it is not obligatory. What Thomas LJ said at paragraph 26 was this:

This seems to suggest that, as a general proposition, if the offence under 444(1A) is not made out, the Magistrates ought to convict under 444(1) because it is an absolute offence; none the less, the interests of justice may dictate to the contrary. It seems to me in the circumstances of this case that it would be wrong for me to send the matter back notwithstanding that there may be a technical offence having been committed under 444(1).

The Magistrates were satisfied that the evidence before them was all one way and that the claimant had indeed done much, though they were not persuaded that she had done everything that she should to ensure that her son attended his school. They expressed considerable sympathy for her. As I have indicated, they ought, in my judgement, to have gone further because they should have been satisfied that she had done all that she should, even if the reverse burden applied within the terms of subsection (1A).

In all the circumstances, and also having regard to the passage of time and to the unfortunate accident which has since occurred, it would in my judgement clearly not be in the interests of justice for this matter to be sent back to the Justices with a view to recording a conviction under subsection (1) of section 444. Accordingly, I shall allow this claim, quash the decision of the court and the conviction of the claimant, and make no further order, save possibly for costs.

MISS GIANOTA: My Lord, yes, that would be my request.

MR JUSTICE COLLINS: Are you legally aided?

MISS GIANOTA: Yes, my Lord.

MR JUSTICE COLLINS: The difficulty that you face is that it is normal practice not to award costs against courts, as you know.

MISS GIANOTA: Yes, my Lord. I am in your Lordship's hands. Taxation under legal aid would be appropriate.

MR JUSTICE COLLINS: This is judicial review. If it were case stated, I would not have the power, but the Divisional Court would have power to award costs out of central funds. We could get round that. I cannot remember what the position is in relation to judicial review. Is there power to award costs out of central funds? This is a criminal matter.

MISS GIANOTA: There is, my Lord, under section 16(5) of the Prosecution of Offences Act, I understand.

MR JUSTICE COLLINS: Let me have a look at that.

MISS GIANOTA: I do not have the current edition of Archbold with me.

MR JUSTICE COLLINS: Let me find it. It is the Prosecution of Offences Act, is it?

MISS GIANOTA: Yes, my Lord.

MR JUSTICE COLLINS: It is section 16?

MISS GIANOTA: Yes, one-six. I know, my Lord, that in the judicial review that I took part in this morning your brother Judges, Slade LJ. and Sullivan J. have awarded defence costs out of central funds in relation to that.

MR JUSTICE COLLINS: Subsection (5) says:

This is a criminal cause or matter, but I am not a Divisional Court. Do not worry. This is a situation unfortunately where the statutory provisions have not caught up with the practice of the court, which is to allow these cases to be dealt with by a single Judge as opposed to a Divisional Court, and this is indeed the order that was made in this case. If I were to decide that in principle you should have your costs out of central funds, I will adjourn and produce a Divisional Court to make that order.

MISS GIANOTA: I am grateful, my Lord.

MR JUSTICE COLLINS: I think it is appropriate that you should have those costs. There is no need for the court to re-assemble. We will deal with it in writing, and you will get an order in due course from a court consisting of myself and another puisne Judge, which will be a Divisional Court assembled for the purpose of considering whether you get your costs.

MISS GIANOTA: I am grateful.

MR JUSTICE COLLINS: I think the word "fudge" has been used, has it not? It may be that it is, to some extent, but that is the only way that we can deal with it justly.

MISS GIANOTA: My Lord, thank you.

MR JUSTICE COLLINS: Many thanks that you were able to assist. I am sorry that it was not really possible to deal with it in depth in relation to what was needed, but I hope that that will be of some assistance.

MISS GIANOTA: Yes.

MR JUSTICE COLLINS: It is obviously quite an important point for the future.

MISS GIANOTA: Yes.

MR JUSTICE COLLINS: I do not know whether these are the only Justices who have fallen into error in this regard.

MISS GIANOTA: I know not. However, I do know that there is a certainly a scarcity of precedent to follow. It may be that this will assist.

MR JUSTICE COLLINS: We shall see. Thank you very much indeed, Miss Gianota.