Barnfather v Islington Education Authority & Anor

Article 6.2 of the Convention concerns the fairness of criminal proceedings and the evidential operation of presumptions. It does not empower the court to add a fault requirement to a statutory offence which Parliament has deliberately made one of strict liability. A strict liability offence may therefore be compatible with Article 6.2 even though conviction does not require proof of the defendant’s knowledge or personal fault. Salabiaku v France was confined to procedural and evidential presumptions. The court declined to follow the broader approach suggested by Hansen v Denmark. Alternatively, if Article 6.2 permitted review of the substance of strict liability offences, section 444(1) would be proportionate in its statutory and practical context.

The claimant had been convicted in the magistrates’ court under section 444(1) of the Education Act 1996 after her child failed to attend school regularly. She was fined and ordered to pay costs. Her appeal to the Crown Court raised a preliminary Convention issue but remained unresolved pending this case stated appeal.

The claimant argued that section 444(1), as a strict liability offence, contravened Article 6.2 of the Convention because it required no proof of knowledge, neglect or other fault. The questions for the Divisional Court were whether section 444(1) was compatible with Article 6.2 and, if not, whether it could be read compatibly under section 3 of the Human Rights Act 1998 or required a declaration of incompatibility under section 4.

1. Application dismissed. The court answered the first case stated question in the affirmative. The second question did not arise.
2. Section 444(1) requires the prosecution to prove the child’s registration at a relevant school, compulsory school age and failure to attend regularly. The statutory exceptions for leave, sickness and unavoidable cause also form part of the relevant inquiry. The offence is strict liability, but it does not reverse the burden of proving those matters. Reverse burdens in sections 444(4) and 444(6) were not in issue.
3. Per Maurice Kay J, Article 6.2 does not scrutinise the substantive ingredients of a domestic offence merely because it is strict liability. Salabiaku v France concerned presumptions of fact or law and the method by which an offence was proved. It did not establish a Convention requirement that every criminal offence contain a fault element. The broader reading attributed to Hansen v Denmark went beyond and misinterpreted Salabiaku; the court was not disposed to follow it. Section 3 could not therefore be used to import a defence, and section 4 was not engaged.
4. Per Elias J, agreeing on the decisive issue, Article 6.2 does not permit the courts to question the substantive policy choice embodied in a strict liability offence. The presumption of mens rea in domestic law cannot overcome Parliament’s clear intention, particularly where section 444(1) has been retained alongside the separate fault-based offence in section 444(1A), with section 444(8B) permitting an alternative conviction.
5. Both judges considered the alternative issue. Maurice Kay J held that, even if a proportionality review were available, section 444(1) pursued the legitimate objective of securing school attendance and was proportionate. Relevant safeguards included the limited fine, prosecution by a local education authority only, consideration of an education supervision order under section 447, statutory exceptions and attendance-monitoring arrangements. Elias J disagreed on this alternative issue: he would have held the offence disproportionate because it imposed criminal liability on a parent who had taken reasonable steps but could not control the child’s conduct. That alternative disagreement did not affect the result.

The claimant was convicted by Highbury Corner Magistrates’ Court and appealed to the Inner London Crown Court. The Crown Court ruled that section 444(1) was Convention-compliant, but the appeal remained unresolved. The Divisional Court determined the preliminary issue by case stated and dismissed the application.