Isle of Wight Council v Platt
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Mrs Justice Thirlwall |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2016] EWHC 1283 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 May 2016 |
| Docket Number | Case No. CO/6636/2015 |
[2016] EWHC 1283 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Lloyd Jones
and
Mrs Justice Thirlwall
Case No. CO/6636/2015
Mr Mark Jackson (instructed by Isle of Wight Council) appeared on behalf of the Appellant
Mr Paul Greatorex (instructed by Jerome & Co) appeared on behalf of the Respondent
JUDGMENT (As Approved by the Court)
This is an appeal by way of case stated from a decision of the Isle of Wight magistrates on 12 October 2015. The facts as set out in the case stated are as follows:
"1. On the 20th July 2015, information was laid and a summons issued that the respondent, between the 13th April and 24th April 2015, being the parent of [M], date of birth 24th May 2008, a child of compulsory school age who was registered at Bembridge Primary School, failed to attend the school regularly contrary to S444(1) of the Education Act 1996.
2. The respondent appeared before the Isle of Wight Magistrates' Court sitting at Newport on the 10th August 2015 and entered a Not Guilty Plea. At that hearing, the charge was amended in that the dates now read between 13th April and 21st April 2015.
3. The Preparation for Effective Trial form was completed on the 10th August 2015 and signed by the Prosecutor. This recorded the following:
(a) That the statement of Karen Pothecary, the Education Welfare Officer could be read.
(b) That Mr Platt accepted that [M] was absent from school between the 13th and 21st April and that the issue for the court to decide was whether the child had attended school regularly.
(c) An additional issue noted on the form is that the child's living arrangements were inaccurately recorded in the witness statement.
(d) The trial was listed for the 12th October 2015.
4. Prior to the trial being called on Mr Spoors, solicitor for the respondent, provided the case of London Borough of Bromley v C, [2006] EWHC 1110 (Admin) upon which he intended to rely, to the court and the Isle of Wight Council prosecutor. Both advocates asked for a short period of time to have discussions and invited the justices to read the case whilst that took place.
5. The IWC prosecutor outlined the case setting out the policy applied by the school, the criteria considered when dealing with requests for authorised absence, and that in this case a fixed penalty notice had been issued.
6. We heard no live evidence from the prosecution. The statement of Karen Pothecary was read pursuant to Section 9 of the Criminal Justice Act 1967 and the exhibits referenced in her statement. [Those exhibits included the policy applied by the school in deciding whether to authorise the absence, the fixed penalty notice and subsequent increase notice for non-payment, the letter before action regarding non-payment of the fixed penalty; the attendance record for the child; an e-mail sent by Mr Platt setting out the background in more detail; and the response from the Education Welfare Officer informing Mr Platt that they intended to pursue prosecution.]
(a) The facts set out in the statement were that [M] is a registered pupil at Bembridge Primary School, that her father is Jonathon Platt and that [M] lives with her mother. That Mr Platt was responsible for removing [M] from school and taking her on holiday.
(b) The school sent a referral pack to the Education Welfare Officer on the 29th April which included the holiday request form and accompanying letter from Mr Platt completed on the 30th January 2015, the response from the headmistress refusing to authorise leave on the 9th February and the warning that a fixed penalty would be issued if he took the holiday.
(c) The code of conduct was considered to ensure the correct procedures had been followed. The fixed penalty was authorised for issue, and the notice was sent to Mr Platt on the 14th May 2015 with a deadline for payment of the 3rd June 2015 accompanied by an invoice. This was followed by a further invoice on the 4th June 2015 as the enhanced payment of £120 was now required with a deadline for payment of the 10th June 2015.
(d) On the 10th June, the increased fixed penalty had not been paid. On the 1st July 2015 a letter was sent by Miss Pothecary to Mr Platt advising him that if the fixed penalty remained unpaid the matter would proceed to prosecution.
(e) Mr Platt then phoned the officer and said he would e-mail in an explanation and a reply was sent explaining why the notices had been sent and that the matter was now to be directed to the court.
(f) The document exhibited at KP07 was [M]'s attendance record which showed an analysis of her attendance between the 1st September 2014 and the 7th July 2015.
(g) The email from Mr Platt was read to the court and clarified that the living arrangements for [M] were split 50:50 between her mother and father. It confirmed that at the time the application was made for unauthorised absence [M]'s attendance was 100%. This was confirmed by the form signed off by the head teacher included in the referral pack.
(h) The email also made it clear that at the time the holiday was booked, he had sought permission of his ex-wife to take the girls on holiday. It would appear that on the day he made that booking his ex-wife also booked a holiday for herself and the girls during term time in February for which she had not sought his permission. The reply from Miss Pothecary made it clear that those circumstances were taken into account by the school and as a result the penalty notice for Mr Platt related solely to the absence in April and not for the absence in February.
(i) The attendance record exhibited showed only two periods of unauthorised absence. Those were the week commencing the 9th February 2015 amounting to 10 sessions; and the 7 day absence from the 13th April 2015 to the 21st April 2015, amounting to 14 sessions.
7. At the conclusion of the prosecution case the defence submitted that there was no case to answer on the basis that an essential element of the prosecution case was missing namely that the child had failed to attend school regularly. In this case, the child had attended regularly. The attendance register showed attendance at 92.3%.
8. The case of London Borough of Bromley v C was referred to. The defence submitted that Mr Platt was being prosecuted because he took his child out of school for a holiday. It was contended this case confirms that it is not a crime to remove a child from school for a holiday. The offence under S444 Education Act 1996 is whether the child has failed to attend regularly. The application form completed by Mr Platt says that 90–95% attendance is satisfactory. If the attendance percentage was in the 80s that would be a different issue. The Act does not define 'regularly'.
9. The prosecution argued that there was a case to answer. That it was a question of fact and degree as to whether the child had attended regularly and that effectively for every 4.5 days' attendance there was half a day's absence.
10. The prosecutor reminded the court of the e-mail sent by Mr Platt. It was submitted that Mr Platt was aware that [M] was absent in February and understood that the child needed to attend school. The prosecutor made it clear that Mr Platt would not have authorised that absence and had little choice. The mother had done that and the mother had been penalised.
11. The prosecutor submitted that in April 2015 Mr Platt had then taken his daughter out of school for 14 sessions and thinks that is acceptable. He argued that it is either one thing or the other. It was submitted that if you take the two periods together from February and April, the child was absent for a total of 24 sessions.
12. Although we had sight of the attendance register, we asked whether a breakdown of the attendance percentages were available for the time period up to the 12th April and as at 21st April. The prosecutor advised the court that up to the 12th April 2015, the attendance rate was 95%, at the end of the 21st April it was 90.3%.
13. We were advised by our legal adviser that there are only two situations in which we could find no case to answer, the relevant situation to this case being the submission that an essential element of the prosecution case was missing. Namely, had the prosecution established a prima facie case that [M] had failed to attend school regularly.
14. It was made clear that we were not looking at whether we would acquit or convict on the evidence laid before the court, but whether a reasonable, properly directed tribunal could convict on the evidence.
15. The case law referred to was explained in the following terms and was on par in that the absences in that case did not fall under the exemptions set out in the Education Act 1996. On that basis, the question the court has to ask is, 'has the child attended school regularly?' The judgment makes it clear that the attendance record is a starting point when considering that question and that magistrates are bound to consider the respondent's explanation for the recorded absences and decide whether there was regular school attendance in light of all the evidence. We had not heard evidence from Mr Platt, but the explanation was available from the evidence presented by the Council.
16. We retired to consider the submission of No Case to Answer.
17. We ruled that there was no case to answer. In making this decision we only took into account the period of 13th April 2015 and 21st April as set out in the charge. Although the February absence was highlighted by the prosecutor in his half...
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Isle of Wight Council v Platt
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