Isle of Wight Council v Platt
Background
It seemed at the beginning almost too good to be true, and now, it appears that it was. But Jon Platt’s victorious run through the English legal system has come to an end before Lady Hale, sitting in the Supreme Court, who found he did, in fact, have a case to answer and has remitted his case back to the Magistrates’ Court.
The facts of Platt are well known, his successes being headline news since the day he managed to convince the Isle of Wight Magistrates Court that he had no case to answer and evaded conviction and payment of the Fixed Penalty Notice issued upon him.
Mr Platt and his former wife both applied to their daughter’s school for authorisation to take her out of school for holidays. Coincidentally, they both applied on the same day, both were refused permission to go and both went anyway. As a result, both parents were issued with Fixed Penalty Notices by the Local Authority. The mother paid, but Mr Platt refused and was prosecuted under s.444(1) of the Education Act 1996 for failing to secure the regular attendance of his daughter at school between 13 and 21 April 2015.
Argument
The charge period became the focal point of the case. The charged period was in fact, the entire time that the child was on holiday. Therefore, on a simple construction, she could not have attended school regularly, as she had not attended school at all. Mr Platt argued that the whole of his daughter’s attendance record should be taken into account, not just the relevant period. On that basis, he argued, her attendance – even after the holiday – was 90.3%. The magistrates in fact did take into account the full record of attendance, as well as a document from the Local Authority which stated that satisfactory attendance is 90-95%, and found that Mr Platt has no case to answer.
The Local Authority appealed by way of case stated and the following question was asked of the Divisional Court:
“Did we err in law in taking into account attendance outside of the offence dates (13 April to 21 April 2015) as particularised in the summons when determining the percentage attendance of the child?”
On 13 May 2016, the Divisional Court answered: no, was the answer. The Magistrates, in taking into account the child’s attendance outside the charging period, had not erred in law.
The Divisional Court certified a point of law of general public importance, one which was slightly different to the Magistrates:
“Whether, on an information alleging a failure by a parent over a specified period to secure that his child attends school regularly contrary to section 444(1) of the 1996 Act, the child’s attendance outside the specified period is relevant to the question whether the offence has been committed.”
Decision
The Judgment of the Supreme Court, given by Lady Hale and unanimously supported by the Justices, deals with the question in several parts. First with a helpful summary of school attendance law from 1870 to the present day. Secondly, with the nub of the case and these cases nationwide. Finally, with the meaning of the word ‘regularly’ in this context.
Lady Hale then deals with the cases of Bromley v C [2006] EWHC 1110 (Admin), [2006] ELR 358 and Crump v Gilmore [1969] 68 LGR 56.
Lady Hale looked at the three different meanings of the word ‘regularly’ and decided which was the one intended by Parliament in the Education Act 1996: ‘At regular intervals’, ‘sufficiently frequently’, or ‘in accordance with the rules’.
Lady Hale stated that the first interpretation was wrong as it would enable a child to regularly attend only one day a week. The second was wrong as it did not follow the clear tightening of the law on school attendance which started with the Education Act 1944 and was “too uncertain to found a criminal offence,” as a parent does not know for certain whether on any given day taking a child out of school commits a criminal offence. Therefore, the answer must be the third interpretation: “in accordance with the rules.”
The Divisional Court was worried, Lady Hale stated, that the consequence of even a single missed attendance could found criminal liability. Lady Hale clearly did not share their qualms and gave several examples of where even minor infractions of the law are clear criminal offences, and that even a day of missed school is a breach of the statute.
The answer – she believes – is for local authorities to employ “a sensible prosecution policy”, including the use of fixed penalty notices combined with an “appropriate” approach to sentencing through the use of absolute or conditional discharges.
Conclusion
The definition is now fixed and clear: “regularly” means “in accordance with the rules prescribed by the school”.
It is important to note that Lady Hale does not deal with the other part of the question; namely can the court take into account the child’s attendance outside the charging period? Yet, in light of the now very clear definition of regularly, that question has become academic, as now even a single day of missed school, if not done in accordance with the school’s rules, is capable of incurring criminal liability.
Alec Small
