Hampshire County Council v E

An offence under Education Act 1996, section 444(1), is one of strict liability. Taking every reasonable step to secure a child’s attendance is powerful mitigation, but is not itself a defence.

Assuming that duress of circumstances is available, the defendant must show a reasonable fear of death or serious injury and that a sober person of reasonable firmness, sharing the defendant’s characteristics, would have acted similarly. The threat must operate when the offence is committed and throughout any continuing criminal conduct. Generalised fear arising from a child’s violent behaviour, without a sufficient link to attempts to secure attendance, cannot satisfy that test.

Hampshire County Council appealed by way of case stated from the decision of the New Forest Justices, sitting at Lyndhurst Magistrates’ Court on 31 January 2007. The justices dismissed an information alleging that the respondent had committed an offence under section 444(1) of the Education Act 1996 because her 15-year-old son had failed to attend school regularly.

The justices found that the respondent had taken every reasonable step to secure attendance, but that her son had repeatedly behaved violently towards her and her daughter and had abused alcohol and controlled drugs. They accepted a defence of duress of circumstances. The central question was whether, on the evidence, they were entitled to reach that conclusion.

1. The appeal was allowed in substance. The court answered the stated question in the negative. No further order was required because the Council did not seek to reopen the proceedings, and there was no order as to costs.

2. Section 444(1) of the Education Act 1996 creates a strict-liability offence. The relevant facts are the child’s failure to attend regularly and the defendant’s status as the child’s parent. The parent’s efforts to secure attendance do not constitute a defence, although they may provide powerful mitigation.

3. Assuming, without deciding, that duress of circumstances can apply to this offence, the principles stated in R v Martin [1989] 1 All ER 652 require both a subjective and an objective element. The defendant must have been impelled by a reasonable belief that failure to act would result in death or serious physical injury. A sober person of reasonable firmness, sharing the defendant’s characteristics, must also have responded in the same way.

4. The findings did not establish the necessary connection between the violence and attempts to make the child attend school. They did not show that the violence created a risk of death or serious injury. Nor could the alleged duress have operated continuously throughout the relevant period, particularly as the child attended school on more days than not. The objective limb also failed: a reasonable person would not have responded by allowing the child to remain absent from school.

5. The court deliberately left open the wider question whether duress of circumstances is available at all for a strict-liability offence framed by reference to the child’s conduct. The court expressed considerable doubt on that issue, but regarded it as unnecessary to decide.

An order under section 39 of the Children and Young Persons Act prohibited publication of information identifying the child.

• High Court (Administrative Court): allowed the appeal by way of case stated and answered the stated question in the negative.
• New Forest Justices, Lyndhurst Magistrates’ Court: dismissed the information and found that the respondent had acted under duress of circumstances.