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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> JOHN O'HAGAN, Director of Administration,North Lanarkshire Council v. LORRAINE REA  ScotSC 1 (12th January, 2001)
Cite as:  ScotSC 1
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SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT AIRDRIE
DECISION ON PRELIMINARY OBJECTION
IAN CHRISTOPHER SIMPSON, Esquire, Advocate, Sheriff of South Strathclyde, Dumfries and Galloway at Airdrie
JOHN O'HAGAN, Director of Administration North Lanarkshire Council, for the Education Authority
Act; Blair, Advocate, instructed by the education authority
Alt: Graham, Solicitor, Messes McAfee, Coatbridge, for the accused
Airdrie: 12 January 2001
The legal background
b. The issue raised was a human rights issue, not a devolution issue; it would not be competent to refer the issue to a higher court; and it was not competent under section 4 of the Human Rights Act 1998 for the Sheriff Court to make a declaration of incompatibility. Further, it was not necessary to intimate the diet to the Advocate General.
"Duty of education authorities to secure provision of education
1(1) Subject to sub-section (2) below, it shall be the duty of every education authority to secure that there is made for their area adequate and sufficient provision of school education and further education.
Duty of parents to provide education for their children
30 It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.
Exemption from school attendance
34(1) Where ... an education authority are satisfied that by reason of any circumstances existing at his home it would cause exceptional hardship to require a child over fourteen years of age to attend school, they may grant exemption from the obligation to attend school to enable the said child to give assistance at home ...
Failure by parent to secure regular attendance by his child at a public school
35(1) Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school ... , his parent shall be guilty of an offence against this section.
(2) For the purposes of this section, a child who has been required to discontinue for any period his attendance at a school on account of his parents' refusal or failure to comply with the rules, regulations or disciplinary requirements of the school, shall, unless the court otherwise determines, be deemed to have failed without reasonable excuse to attend regularly at the school.
Power of education authority in relation to irregular attendance of child at a public school
36(1) It shall be the duty of the education authority if they consider that a parent has committed an offence against section 35 of this Act in respect of a child ... , to serve a notice on the parent requiring him ... to appear ... before the authority and explain the reason for the absence of the child from school. If the parent fails to satisfy the authority that he had a reasonable excuse, the authority may instruct that he be prosecuted forthwith under section 43 of this Act or may warn the parent and postpone ... a decision as to whether to prosecute.
[sub-section 3 empowers the education authority to give information to the principal reporter of the children's panel in relation to a child not attending regularly whether a prosecution takes place or not]
Power of education authority where not satisfied that parent is providing efficient education for his child
37(1) Where a child of school age has not attended a public school in the area in which his parent is residing ..., then, if the authority are not satisfied that the parent is providing efficient education ... , it shall be the duty of the authority to serve a notice on the parent requiring him ... either (a) to appear before the authority ... , or (b) ... to give such information to the authority in writing.
(2) If a parent on whom a notice has been served in pursuance of sub-section (1) above fails to satisfy the authority that he is providing efficient education for the child suitable to his age, ability and aptitude or that there is reasonable excuse for his failure to do so, the authority shall make an attendance order in respect of the child ... .
Failure to comply with attendance order
41. Where an attendance order has been made and is in force in respect of any child, ... the parent shall, if the order is not complied with, be guilty of an offence against this section unless he satisfies the court that he has a reasonable excuse.
42(1) For the purposes of sections 35, 36, 37, 41 and 44 of this Act, there shall be deemed to be a reasonable excuse if (a) [the child requires to walk too far to the school] or (b) the child has been prevented by sickness from attending school or receiving education as the case may be; or (c) there are other circumstances which in the opinion of the education authority or the court afford a reasonable excuse.
Prosecutions and penalties
43(1) [For repeated offences a parent can be fined up to level 3 or imprisoned for one month or both].
Powers of courts in relation to child
44(2) ... the court before which a prosecution is brought for an offence against section 35 ... may ... make an attendance order ..."
The underlining is mine: for its significance, vide paragraph 33, infra.
In terms of section 54 of the Children (Scotland) Act 1995, the court has the power to refer a truanting child to the principal reporter of the children's panel and such a reference is to be treated as if the grounds for referral had been established in the normal way.
Submissions for the accused
Submissions for the education authority
"No person shall be denied the right to education".
It is to be noted that the drafters of the protocol decided that a negative formulation was the best way to secure a positive right to education. States were accorded a wide margin of appreciation as to how they should go about the provision of education (Belgian Linguistic Case (No 2) 1968 EHRR 252 at 281-282). In Family H v The United Kingdom 1984 37 DR 105 at 108 the Commission held:
"It is clear that Art 2 of Protocol No 1 implies a right for the state to establish compulsory schooling, be it in state schools of private tuition of a satisfactory standard and that verification and enforcement of educational standards is an integral part of that right".
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
"In particular, and again in principle, the contracting states may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the contracting states."
In Salabiaku's case there was an obligation on the French court to acquit him if he succeeded in establishing a case of force majeure. Further, it was apparent to the court that the lower court had paid attention to the accused's state of knowledge. In the circumstances they decided that Article 6(2) had not been violated.
"But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."
At page 175 they said:
"Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended."
"But such an inference [of strict liability] is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation."
"Hence, legislation applicable to such offences, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such consideration, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving."
"A measure will satisfy the proportionality test only if three criteria are satisfied:
Counsel pointed out that although the legislative objective was important, section 35(1) as presently interpreted could be described as arbitrary and unfair and the objective - the attendance of children at school - might be effectively addressed by a court referring the child to the principal reporter in terms of section 54 of the Children (Scotland) Act 1995. This power can be exercised whether the parent is convicted or not. Examples of cases in which proportionality had been assessed were Salabiaku v France and PF (Dunfermline) v Brown, Privy Council 5 December 2000.
"3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not effect the validity, continuing operation or enforcement of any incompatible primary legislation ..."
In light of the terms of sub-section 1, counsel argued that it was necessary for me to attempt to re-interpret the relevant sections of the 1980 Act so the legislation might be given effect in a way which is compatible with Convention rights.
"In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the Court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a "Living tree capable of growth and expansion within its natural limits" ... , but those limits will often call for very careful consideration."
"In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States."
In paragraph 28 the judgment went on:
"Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider, paragraph 2 of Article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words "according to law" were construed exclusively with reference of domestic law. Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law.
Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
"The cases show that, although Article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of facts) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits."
In my view the imposition of strict liability on a parent in respect of a truanting child exceeds reasonable limits and sections 35(1) and 42(1) as presently interpreted are incompatible with the right to be presumed innocent enshrined in Article 6(2) of the Convention.