H v The Crown Prosecution Service (CPS)

Teachers at schools for children with special needs do not impliedly consent to assaults by pupils merely because violence is a foreseeable risk of the employment. The contact-sports doctrine rests on the rules of the activity, reciprocal participation and the conduct reasonably accepted by those taking part. Those features do not apply to pupil assaults on teaching staff. The ordinary criminal law therefore remains applicable, and the seriousness of the conduct is assessed objectively. A teacher’s right to report an assault to the police cannot be made conditional on first using internal school procedures. The subsequent decisions of the police and prosecuting authority, including consideration of the public interest, provide safeguards against inappropriate prosecutions.

The claimant, a 15-year-old pupil, appealed by way of Case Stated against his conviction in the Chester Youth Court on two counts of common assault by beating, contrary to section 39 of the Criminal Justice Act 1988. The assaults were committed against a deputy head teacher at a community special school for children with emotional, behavioural and social needs.

The claimant argued that, by taking employment at such a school, the teacher impliedly consented to relatively minor violence and that incidents should generally be dealt with through school disciplinary procedures. The central questions were whether the contact-sports principles applied and whether the teacher’s complaint to the police was inappropriate.

1. Appeal dismissed. The questions posed by the justices were answered in the negative.
2. The court held that there was no legal or policy basis for implying consent to assaults on teachers at schools for children with special needs. The fact that violence by pupils may be foreseeable does not amount to consent, particularly where the teacher expressly denies consenting.
3. The contact-sports cases were materially different. Their treatment of implied consent is linked to rules governing the sport, the reciprocal risks accepted by participants and the conduct reasonably contemplated within the activity. Although schools have rules and may permit physical restraint of pupils in exceptional cases, those rules do not countenance violence or assaults by pupils against teaching staff. Such assaults fall outside the relevant rules and remain subject to the ordinary criminal law.
4. The threshold of criminality was objectively reached on the facts. The court rejected the submission that the conduct should be excluded from the criminal process because the school had internal disciplinary procedures or because prosecution might be counterproductive for the pupil.
5. A teacher generally retains the right to report an alleged assault to the police. That right cannot be lost through acquiescence to earlier incidents, nor can it be made subject to a condition that internal procedures must first be exhausted. A report is only the first step: the police and the Crown Prosecution Service must later consider the public interest, providing safeguards against needless or inappropriate prosecutions.

1. Chester Youth Court: convicted the appellant of two counts of common assault by beating.
2. High Court (Administrative Court): dismissed the appeal by way of Case Stated and answered the justices’ questions in the negative.