London Borough of Sutton v S

Whether a parent has reasonable justification for failing to secure a child’s regular school attendance under section 444(1A) of the Education Act 1996 is ordinarily a fact-sensitive question. A case stated court should not answer abstract questions where the magistrates’ findings resolve the issue and disclose no error of law.

Where a defendant is acquitted of the more serious offence but the lesser offence under section 444(1) is made out, the discretion under section 444(8B) is governed by the interests of justice. The public interest may require conviction for the lesser offence. The importance of the lesser offence as one of absolute liability remains paramount.

The London Borough of Sutton prosecuted parents under section 444(1A) of the Education Act 1996 after their daughter’s regular school attendance substantially failed. The magistrates found that the parents had co-operated with educational and support services, had taken extensive steps to secure attendance, and had been unable to overcome the child’s serious educational and emotional difficulties.

The magistrates acquitted the parents of the subsection (1A) offence and declined to return a verdict under section 444(8B) for the lesser offence under section 444(1). The Council obtained a case stated raising questions about reasonable justification and the exercise of the section 444(8B) discretion.

1. The application was dismissed. The magistrates’ findings were capable of amounting to reasonable justification under section 444(1A) of the Education Act 1996, and they had rightly acquitted the respondents. The issue was factual, not a point of law requiring resolution by the Divisional Court.
2. The case stated court had to proceed on the facts found by the magistrates, rather than reconsidering the evidence. The findings showed that the parents knew of the non-attendance, co-operated with the Education Welfare Officer, followed advice, sought assistance, and did their best to secure attendance. In those circumstances, the Council’s submission that further steps should have been taken had failed before the magistrates and was hopeless on the stated facts.
3. The court declined to determine the burden of proof for reasonable justification or give general guidance on the scope of that defence. The respondent was unrepresented, the issue did not arise on the findings, and the court was not being asked to resolve an abstract question. The court likewise made no further ruling on bullying evidence.
4. Section 444(8B) gives the magistrates a discretion. Its governing criterion is the interests of justice. The principles in Fairbanks (1986) 83 Cr.App.R. 251 and Maxwell (1989) 88 Cr.App.R 173, as affirmed on appeal in Maxwell (1990) 91 Cr.App.R 61, apply by analogy. The public interest will often require conviction for the lesser offence where the more serious offence is not proved but the lesser offence is established.
5. The court emphasised the importance of the absolute-liability offence under section 444(1), referring to Barnfather v LB Islington Education Authority [2003] EWHC 418 Admin. Magistrates would fail in their duty if, where that offence was made out, they failed to convict. The education authority must nevertheless exercise carefully its discretion whether to prosecute, including whether to pursue a case stated appeal, having regard to the human consequences and the realistic prospects of success.

1. Magistrates’ Court: The respondents were acquitted of the offence under section 444(1A) of the Education Act 1996. The magistrates declined to return a lesser verdict under section 444(8B).
2. High Court (Administrative Court): The Council’s case stated application was dismissed. The court held that the magistrates’ findings disclosed no error of law and that the appeal was hopeless.