Practice and Procedure


PUBLISHED March 20, 2003

The strict liability offence created by s.444(1) Education Act 1996 was compatible with Art.6(2) European Convention on Human Rights.Appeal by way of case stated in relation to a preliminary issue raised in an appeal against conviction of an offence under s.444(1) Education Act 1996. The appellant's child was a registered pupil at a relevant school. The child was of school age and had failed to attend regularly. The questions stated for the opinion of the Administrative Court were: (i) whether s.444(1) of the 1996 as interpreted by the higher courts prior to the enactment of the Human Rights Act 1998 was compatible with the European Convention on Human Rights; and, if not, (ii) whether s.444(1) of the 1996 Act could be reinterpreted compatibly with the Convention pursuant to s.3 of the 1998 Act. The appellant contended that: (i) s.444(1) of the 1996 Act was incompatible with Art.6(2) of the Convention in that it created a strict liability offence which did not require proof of any knowledge or fault on the part of the parent; and (ii) the reasoning of the European Court of Human Rights in Salabiaku v France (1988) 13 EHRR 379 enabled the courts to scrutinise a strict liability offence in order to establish whether it was confined within reasonable limits on a proportionality basis.HELD: (1) It was important to keep in mind the essential nature of the offence prescribed by s.444(1) of the 1996 Act. Although it was fairly described as an offence of strict liability, it was not one built upon any reversal of the burden of proof. It was for the local authority to prove that the child: (a) was a registered pupil at a relevant school; (b) was of compulsory school age; (c) had failed to attend regularly; and (d) that the reason for the absence was not with leave or by reason of illness or unavoidable cause in a case where such an issue was raised. Given the restricted way in which requirement (d) had been determined by courts and the fact that no reverse burden arose, the appellant's case was not based on the most obvious concern of Art.6(2), namely the presumption of innocence. (2) The question was whether Art.6(2) provided a criterion against which the substance of a domestic offence could be scrutinised or whether it was confined to procedural and evidential matters. The issue in Salabiaku (supra) was of the latter kind. (3) Neither the decision in Salabiaku nor anything else relied upon by the appellant provided a basis for holding that s.444(1) of the 1996 Act was incompatible with Art.6(2) of the Convention. As such the first question stated for the court could be answered in the affirmative and the second did not arise. (4) Although it was not strictly necessary to consider the issue of justification, given the policy of the prevention of truancy, it could not be disputed that the offence prescribed by s.444(1) of the 1996 Act sought to achieve a legitimate aim. While punishment under s.444(1) of the Act could be accompanied by a degree of social stigma, the strict liability offence was reasonable and proportionate given the context.Appeal dismissed.

[2003] EWHC 418 (Admin)