- 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?"
The
statutory framework
- 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
existing case law on section 444(1)
- 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.
The
human rights issue.
- 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
6.2
- 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 defence".
- 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.
The
diligent researches of counsel have not unearthed any subsequent case or leading
text in which Hansen has been considered. Salabiaku
has been considered in a number of cases including by the House of Lords in Regina
v. Lambert [2001] 3 WLR 206 in which Lord Clyde, when dealing with Article
6.2 in the context of the burden imposed upon a defendant by section 28 of the
Misuse of Drugs Act 1971, quoted extensively from Salabiaku, using
it as support for a number of propositions, including this passage (paragraph
150):
"The
words ‘according to law’ in Article 6.2 do not merely refer to domestic law, but
also to the rule of law, and accordingly certain limits must be observed in the
extent to which presumptions of fact or law are acceptable. Those limits must
be reasonable limits ‘which take into account the importance of what is at stake
and maintain the rights of the Defence’ Salabiaku paragraph 28…"
- 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.
Discussion
- 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 avoidable 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 LRC 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.
2.
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.
Other
matters
- 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.
Mr
Justice Elias:
- 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.
Strict
liability offences
- 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:
"In
their Lordships' opinion, the law relevant to this appeal may be stated in the
following propositions (the formulation of which follows closely the written submission
of the appellants' counsel, which their Lordships gratefully acknowledge): (1)
there is a presumption of law that mens rea is required before a person can be
held guilty of a criminal offence; (2) the presumption is particularly strong
where the offence is 'truly criminal' in character; (3) the presumption applies
to statutory offences, and can be displaced only if this is clearly or by necessary
implication the effect of the statute; (4) the only situation in which the presumption
can be displaced is where the statute is concerned with an issue of social concern,
and public safety is such an issue; (5) even where a statute is concerned with
such an issue, the presumption of mens rea stands unless it can also be shown
that the creation of strict liability will be effective to promote the objects
of the statute by encouraging greater vigilance to prevent the commission of the
prohibited act." (p.14)
- 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, 3rd.
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.
Article
6.2 and strict liability offences.
- 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.
Second,
Article 6.2 itself provides for the presumption of innocence. The elements
of the offence should have to be established by the prosecution. But in this case
they were; they must prove the requisite non-attendance and, at least in relation
to some of the authorised absences, that these did not justify the absence. As
Mr Owen realistically accepted, his submission amounts to importing into, and
as an element of, the presumption of innocence an additional presumption that
there will be no liability without blame. This presumption is that a state cannot
pass criminal laws which simply focus on consequences –as strict liability offences
typically do- save where the elimination of any lack of fault defence can be specifically
justified as a proportionate response to the objectives which the law is designed
to achieve.
- 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.
Justification.
- 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.