Supreme Court decides on the correct interpretation of ‘regularly’ and rules the case would be returned to the magistrates with a direction to proceed as if the father’s submission of no case to answer had been rejected.

 * Isle of Wight Council v Platt

Education - School attendance - Enforcement - Meaning of ‘regular’ when describing attendance of child at school - Father taking child on holiday during school term despite being refused permission by school head - Local authority educational welfare officer imposing penalty notice upon father - Father being prosecuted for refusing to pay penalty notice - Magistrates’ court ruling no case to answer - Authority challenging magistrates’ court ruling of no case to answer - Whether father having case to answer considering correct interpretation of ‘regular’ in context of attendance of child at school - Whether child’s attendance being regular in context of statutory interpretation - Education Act 1996, s 444(1).

The proceedings concerned a primary school-registered girl, M, who had been aged seven at the relevant time. M’s school was within the boundary of the appellant local authority. In January 2015, M’s father, the respondent, had sent a letter to her school’s head teacher requesting removal of M from school during term time for a holiday. In February, the head teacher had replied, refusing the request and warning that a fixed penalty notice would be issued if M were to be taken on holiday. Despite the refusal, the respondent took M out of school for seven school days in April, amounting to 14 attendances. In June, the respondent was issued a £60 fixed penalty notice. The respondent did not pay the penalty notice in time and it was increased to £120.

In July, the respondent was sent a letter before action advising that the authority’s educational welfare officer was preparing to prosecute him. Proceedings were duly brought in the magistrates’ court with the authority alleging that M had failed to attend school regularly and that the respondent had been guilty of an offence under section 444(1) of the Education Act 1996. The respondent pleaded not guilty. In October, the trial took place and at the close of the prosecution’s case the magistrates ruled that there was no case to answer. The magistrates held that they had had to ask whether M had been a regular attender. Prior to the holiday, M’s attendance had been 95% and afterwards it had been 90.3%. The document supplied on refusal of leave stated that satisfactory was 90-95%. The authority appealed by way of case stated. The Divisional Court ruled that the magistrates had not erred in taking into account M’s attendance outside the absent dates in determining her percentage attendance. The authority appealed.

It fell to be determined when a pupil failed to attend school regularly for the purposes of section 444(1) of the act. In that context, what was being asked was what was the meaning intended by parliament when enacting section 444(1) of the act.

The court ruled: There were three possible interpretations of the word ‘regularly’: (a) ‘at regular intervals’; (b) ‘sufficiently frequently’; and (c) ‘in accordance with the rules’. ‘At regular intervals’ could not have been the intended meaning in the case of school attendance as it would enable attendance every Monday to count as regular even though attendance every day of the week was required. There were many reasons to think that ‘sufficiently frequently’ had not been what parliament had intended (see [32]-[41] of the judgment for those reasons). All the reasons why ‘sufficiently frequently’ could not be right also pointed towards ‘in accordance with the rules’ being the correct interpretation.

The Divisional Court had clearly been worried about the consequence that a single missed attendance without leave or unavoidable cause could lead to criminal liability. However, there were several answers to that concern. First, there were many examples where a very minor or trivial breach of the law could lead to criminal liability. The answer in such cases was a sensible prosecution policy. In some cases, that could involve the use of a fixed penalty notice, which recognised that a person ought not to have behaved in a certain way but spared him a criminal conviction. Second, the offence in section 444(1) of the act was a strict liability offence. Third, while the general rule was that statutes imposing criminal liability ought to be construed strictly, it was an even more important rule that statutes imposing criminal liability ought to do so in a way which enabled everyone to know where they stood and to know what was and was not an offence. That could only be achieved where section 444(1) of the act, ‘regularly’ meant ‘in accordance with the rules prescribed by the school’. The alternative interpretations in (a) and (b) did not do that. Accordingly, the father had a case to answer. The penalty noticed had been properly issued and, having failed to pay it, he ought to have been convicted of the offence with which he had been charged unless he could establish one of the statutory exceptions (see [30], [31], [42]-[45], [48], [49] of the judgment).

The case would be returned to the magistrates’ court with a direction to proceed as if the father’s submission of no case to answer had been rejected (see [49] of the judgment).

Crump v Gilmore 68 LGR 56 disapproved; Bromley London Borough Council v C [2006] All ER (D) 80 (Mar) disapproved.

The Queen’s Bench Division [2016] EWHC 1283 (Admin) Reversed.

Martin Chamberlain QC and Emily MacKenzie (instructed by Sharpe Pritchard LLP, as agent for Isle of Wight Council Legal Services) for the authority; Clive Sheldon QC and Paul Greatorex (instructed by Roach Pittis) for the respondent; James Eadie QC and Louis Mably (instructed by the Government Legal Service) for the interested secretary of state for education; Rasheed Sarpong Solicitor.

The Supreme Court ruled that the correct interpretation of the word ‘regularly’ in section 444(1) of the Education Act 1996 meant ‘in accordance with the rules prescribed by the school’. The case had concerned a father who had been prosecuted for taking  his daughter out of school for seven school days, without the school’s permission and the subsequent ruling by the magistrates’ court of no case to answer. Having decided on the correct interpretation of ‘regularly’ the case would be returned to the magistrates with a direction to proceed as if the father’s submission of no case to answer had been rejected.