G, R (on the application of) v London Borough of Islington

A local education authority may apply for an education supervision order and also prosecute under section 444 of the Education Act 1996. The existence of an education supervision order does not automatically bar a prosecution for an offence completed before the order came into force. A prosecution based on conduct during the currency of the order may face difficulty because the parental attendance duty is superseded, but that issue need not be decided where the charge relies only on earlier facts. Such a prosecution is not an abuse of process absent exceptional circumstances, ulterior motive, unfair manipulation or deprivation of a procedural safeguard. On an appeal by way of rehearing, reliance on a different factual basis does not necessarily amend the complaint.

The claimant appealed by way of case stated against the refusal of the Inner London Crown Court to stay proceedings as an abuse of process. She had been convicted of knowingly failing, without reasonable justification, to secure her child's regular school attendance contrary to section 444(1A) of the Education Act 1996.

The local education authority had previously applied for, and obtained, an education supervision order under section 36 and Schedule 3 to the Children Act 1989. It later prosecuted in respect of a period spanning time before and after the order, but relied only on facts occurring before the order was made. The issues were whether the prosecution was unlawful or an abuse of process, and whether limiting the factual basis amounted to an impermissible amendment.

1. Disposition. The court answered the stated questions “No” and “Yes” respectively: applying for and obtaining an education supervision order did not necessarily make a later section 444(1A) prosecution an abuse of process, and the Crown Court was right to find no abuse on the facts. The matter was remitted to the Inner London Crown Court for further consideration.
2. Legality of concurrent mechanisms. Section 447(1) of the Education Act 1996 expressly contemplates an education supervision order being sought “instead of or as well as” instituting proceedings under section 444. That statutory language permits both mechanisms to be used. Although paragraph 13 of Schedule 3 to the Children Act 1989 supersedes the parents’ ordinary attendance duty while the order is in force, it must be understood as not precluding a prosecution notwithstanding that supersession.
3. Conduct during the order. A prosecution relying on facts occurring during the currency of an education supervision order would face difficulty because the parent could contend that the section 444 duty had ceased and that the paragraph 13 process should be used. That issue was not determinative because the prosecution relied only on conduct before 25 October 2002, when the order was made.
4. Abuse of process. There was no abuse. There was no ulterior motive, promise or representation that prosecution would not be brought, or manipulation of procedure to deprive the claimant of a defence or safeguard. The defences were substantially similar, and the burden of proof in the section 444(1A) prosecution could place the defendant in a better position. The availability of a more severe penalty was not, by itself, abusive where the prosecution was lawful.
5. Factual basis of the appeal. Reliance on facts sufficient to constitute the completed offence before the order was made did not impermissibly amend the complaint. The authorities on the Crown Court’s power to determine an appeal on a factual basis different from that adopted below were accepted.

High Court (Administrative Court). On a case stated appeal from the Inner London Crown Court, the court answered the first question “No” and the second “Yes”, and remitted the matter for further consideration.