P, R (on the application of) v Liverpool City Magistrates

Under section 444(1A) of the Education Act 1996, the prosecution bears the legal burden of proving beyond reasonable doubt that a parent’s failure to cause regular attendance was without reasonable justification. The parent bears only an evidential burden of raising material capable of amounting to reasonable justification.

Reasonable justification concerns attendance at the school at which the child is registered. It does not ordinarily require the parent to explore every possible educational alternative. The offence under section 444(1) remains one of strict liability. A court’s power to convict under section 444(8B) is discretionary and must be exercised in the interests of justice.

The claimant sought judicial review of her conviction by Liverpool magistrates for an offence under section 444(1A) of the Education Act 1996. Her son, a registered pupil aged 14 at the relevant time, had persistently failed to attend school. The claimant had maintained contact with the school and relevant agencies and had attempted to secure his attendance.

The magistrates held that the claimant had to establish, on the balance of probabilities, that she had taken all reasonable steps and explored all possible avenues to secure attendance. The central issues were the burden of proof, the scope of reasonable justification, and whether the matter should be dealt with under section 444(8B) if the subsection (1A) offence was not made out.

1. Disposition. The claim was allowed. The magistrates’ decision and the claimant’s conviction under section 444(1A) of the Education Act 1996 were quashed. The matter was not remitted for consideration of a conviction under section 444(1).
2. Burden of proof. Section 444(1A) creates an evidential burden on the accused to raise material capable of supporting reasonable justification. Once that threshold is met, the prosecution must satisfy the magistrates beyond reasonable doubt that the failure to cause attendance was without reasonable justification. The provision contains no express reverse legal burden. A reverse burden will not be assumed unless the statutory language clearly requires it. The magistrates therefore erred in placing a balance-of-probabilities burden on the claimant. The approach was consistent with the treatment of reverse burdens in Sheldrake v Director of Public Prosecutions [2004] UKHL 43.
3. Scope of reasonable justification. The justification must relate to the failure to cause attendance at the school at which the child is registered. The magistrates wrongly treated the investigation of alternative education, enquiries about education care proceedings, and contacting the child’s father as necessary avenues without sufficient evidential basis. The issue is fact-sensitive, and it is not generally necessary for every possible avenue to have been explored. Alternative education may become relevant where there is a good reason why attendance at the registered school is impossible.
4. Section 444(1) and section 444(8B). The subsection (1) offence is one of strict liability, as recognised in Barnfather v London Borough of Islington [2003] EWHC 418 (Admin). Section 444(8B) gives the magistrates a discretion, rather than imposing an obligation, to convict of the lesser offence. The discretion is governed by the interests of justice. Although the evidence might have supported a technical subsection (1) offence, the passage of time, the claimant’s substantial efforts, the magistrates’ sympathy, and the subsequent serious accident made remittal contrary to the interests of justice.
5. Procedure and costs. Errors of law by magistrates should generally be challenged by case stated, while judicial review is more appropriate for unfairness or matters outside the magistrates’ fact-finding function. In this case, permission had already been granted and the court was in as good a position as it would have been on a case stated. Costs out of central funds were to be dealt with by a Divisional Court under section 16(5) of the Prosecution of Offences Act 1985.

The judgment does not state a prior appellate decision in the same proceedings. The claimant proceeded by judicial review rather than by case stated.