Milton Keynes’ Legal Process and the Decision to Prosecute
1.
Criteria for Prosecution:
The Local Authority regards prosecution as a last resort, when all other measures
to assist a pupil to return to school have failed. The main factor in a decision to
prosecute will be the level of co-operation the parent/carer(s) have shown to
ensure that their child(ren) has attended school regularly. Where parent/carers
have failed, or have refused to cooperate with the LA, staff at schools and any
other agency, including Children and Family Practice Workers to ensure the
regular attendance of their child at school, then the decision to prosecute the
parent/carers will be made by the Senior Attendance Officer (Legal Interventions)
hereby know as the “Authorised Officer”.
2.
Legal Process
At the commencement of legal proceedings the school will send a Formal
Warning Letter to the parent/carers. From this stage on it is good practice to write
to each parent/carer separately, even though they may be a couple living at the
same abode. This counteracts claims, which are sometime made by one
parent/carer, that they have not seen letters sent by the school as their partner
has not shared the information. A copy of this letter should been sent to the
Authorised Officer so the case can be logged.
Prior to a Formal Warning Letter being sent the following will be expected as
minimal intervention:
i.
Evidence of the school having written/communicated with the parent/carers and
the outcome.
ii.
Evidence of at least one home visit/school meeting between the school or
another service such as a Children and Family Practice Team.
iii.
Evidence of what the school has done to support the pupil’s return to school
e.g. first day contact, re-integration plan etc…
iv.
The consideration of a referral to the Children & Family Practice Referral Hub.
Following a Formal Warning Letter being sent with the child’s attendance;
a) The school will review the child’s attendance not later than 4 school weeks.
b) The school should advice the parent/carer that further absences will not be
authorised without notes from a health care professional being provided.
c) In the event that the child’s attendance has not improved (an expectation of at
least 90% attendance during the 4 week period), the school will refer the matter to
the Authorised Officer by sending a copy of the attendance certificate so it is clear
there has not been an improvement following the warning letter. If it is accepted,
the Authorised Officer will write to the parent/carers and invite them to an
Attendance Interview. This will usually be held at the child’s school and a relevant
member of the school staff will also be invited to attend. Other significant
professionals involved with the family (if known), e.g. a child’s or family’s Social
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Worker or CFP worker should be offered the opportunity to attend the Attendance
Interview.
Note:1) If lack of control over the child can be claimed in mitigation by the
parent/carers – this requires an assessment by Children’s Services or by
CAMHS (if other agencies such as Children Services are involved with the case
no prosecution will take place without prior consultation).
2) An ESO and a PO (Parenting Order) needs to be considered as part of any
non-attendance prosecution.
3.
The Attendance Interview
The Authorised Officer will chair the Attendance Interview and complete the
Attendance Interview form. It is important to ascertain accurate details about the
parent/carers and other siblings in the family. If there are other school age siblings
it is useful to have a copy of their attendance for this meeting – even if they have
not been referred and the attendance is acceptable. These details e.g. names and
D.O.B. of the parent/carers are usually checked in court, by the clerk of the court, to
ensure that the right person has been issued with the summons.
Attendance Interview Outcomes:
1) If the parent attends and there is a commitment to improve attendance a review will
take place and the parent will be given a warning that if there is no improvement
there will be a review under PACE conditions. An information leaflet will be sent out
with the minutes.
2) If the attendance fails to improve after the first meeting, the Local Authority may
consider the necessity for a PACE interview as advised in DfE guidance. The
interview will be based on a series of written questions to which the parent/carer will
be expected to give their responses. The defendant will be formally cautioned. The
defendant should be notified of his/her rights prior to the PACE interview and asked
if they wish to have legal representation present, if they do wish for legal
representation then the PACE interview will be arranged at a convenient date/time.
Should the parent/carer attend the meeting and then decide they wish to have a
legal representative or say they do not understand the Formal Caution, the
interview should be terminated and reconvened at another time. At the end of the
meeting the parent/carer will be given the questions/answers to read and the
parent/carer will be given an opportunity to make any amendments. When all
parties are satisfied the notes should be signed and a copy given to the
parent/carer.
3) If the parent/carer(s) fail to attend the initial Attendance Interview the matter we
proceed directly to court unless there is a good reason not to do so, e.g. improved
attendance. The same will happen is there is no commitment to improving
attendance although in those circumstances the parent/carer will be invited back for
a PACE interview which they may or may not wish to attend.
4) After the initial Attendance Interview the school will update the Authorised Officer
on the pupil’s attendance level after 4 weeks so he can prepare for the PACE
interview.
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5) Consideration will also be given to offering the parent support through the Children
and Families Practice.
6) A copy of the Attendance Interview notes will be sent to the parent/carers along
with the PACE information leaflet.
7) A copy of the Attendance Interview notes should also be given to school and any
other professional involved with the child or family.
4. Prior to Prosecution:
Before requesting a prosecution the school must be sure that:
a. The school has marked the pupils absences as "unauthorised" and that the signed
"Certificate of Pupil Attendance" clearly indicates this;
b. The parent/carers will not be able to claim that the child was unavoidably prevented
from attending school. If the parent/carer has at any time claimed that the child is ill,
sufficient enquiries (e.g. a letter to the GP) must have been made by both the
school and the so that we are able to refute the parent/carers' claim;
c. The parent/carers are not claiming that all the child’s absences were for religious
observance or festivals. Most religions do not have that many days set apart
exclusively for religious observance. However, if in any doubt about minority ethnic
religious festivals, diaries must be checked, because the calendars by which the
relevant dates are calculated differ and/or rely on the first sighting of celestial
bodies, so certain festival days can only be approximate and are therefore rarely
fixed. Normally only one day is recognised as authorised absence for religious
observance e.g.: Eid.
d. The child does not live more than 3 miles (if over 8 years of age) or 2 miles (if under
8 years of age) from school. If they do live more than 3 or 2 miles from the school
and it is parental choice to select a school which is not catchment then they can still
be prosecuted. If however, the Local Authority has selected the school which the
parent/carer must send their child either because of SEN requirements or a
shortage of places at the catchment school the LA is obligated to provide
transportation – if this not happening then Admissions may need to be contacted
prior to the case being prosecuted. However if transportation is provided there is no
impediment to a prosecution.
8. After the PACE interview the Authorised Officer will make a decision about
prosecution, having given consideration to the following:
a. Whether the evidence provided is substantial enough to prove a case in court.
b. Whether all options to assist the child to return to school have been explored – both
by the school and other services such as the Children & Families Practice Teams.
The Authorised Officer will also give consideration to:
a. Whether a Parenting Order or an Education Supervision Order should be sort.
b. When it has been decided to prosecute a case, the Authorised Officer will inform
the Authoriser of the details of the case and present him with the Section 9 and
evidence. On receipt of this information Authoriser will make a decision whether or
not the prosecution should be processed.
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c. On receiving authority to prosecute the Authorised Officer will complete the
summons and send to the court for authorisation. He will also notify parent/carers of
his decision and the court date.
5.
Preparation for Court
The Authorised Officer will prepare the Section 9 statement, partly based on the
work already complied by the school. This paper work will consist of:
1.
A Summons indicating under which Section of the Education Act, 1996, the
parent/carer is to be prosecuted e.g. section 444 (1) or 444 (1A).
2. A Section 9 statement written by the Authorised Officer.
3. A certificate of the child’s attendance record (showing any authorised and
unauthorised absences) signed by the Head Teacher. The meaning of any
symbols that might appear on the certificate are explained in the Section 9
statement.
4. All other evidence referred to in the Section 9.
5. At the end of the Sec 9 Statement, the Authorised Officer will always record
whether or not consideration was given to applying for an Education
Supervision Order and a Parent/Parenting Order as the magistrates have a
duty to consider these in every case.
6.
Authorised and Unauthorised Absence
The DFE now require LA’s to consider Persistent Absence (PA) and do not
differentiate between authorised and unauthorised absences. However, for the
purposes of prosecution all absence must be unauthorised.
The following is an extract from the DFE document; Advice on Whole School
Behaviour & Attendance policy – September 2003.
“If a pupil of compulsory school age is absent, the register must show whether the
absence was authorised or unauthorised.
Authorised absence is where the school has either given approval in advance for
a pupil of compulsory school age to be out of school, or has accepted an
explanation offered afterwards as satisfactory justification for absence.
All other absences must be treated as unauthorised.
Parent/carers may not authorise any absence, only schools can do this. Schools
may authorise any absence but inappropriate use of authorised absence can be
as damaging to a child’s education as unauthorised absence. As all absences
should be treated as unauthorised until schools agree on a satisfactory
explanation, it is clearly important that schools have consistently applied
procedures for getting explanations and amending registers. The information at
the end of this document shows types of absences which schools may treat as
authorised”.
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7.
Preparing and Serving a Summons
The Process:
1.
The Authorised Officer will cross check the details for errors or omissions.
2.
Evidence provided for the court should not exceed six months prior to the
date when the Summons has been “laid before the court” – this is the
“laying of information” and will include an outline of the case. The period of
prosecution must be six months prior to the summons being stamped by
the court.
3.
The Summons will then be taken by the Authorised Officer to the Court
where it will be signed and endorsed.
4.
The signed Summons will be served on the defendant with the following
documentation:
a)
The Section 9 Statement.
b)
Additional evidence referred to in the section 9.
c)
The signed Certificate of Attendance as the first exhibit.
e)
Notice to defendant: proof by written statement. This is information
by letter advising that legal advice should be sought from a solicitor
and that the defendant has a seven day period in which to raise
any objections to any matter contained in the Section 9 Statement.
f)
Notice of guilty plea
g)
Notice of the Authority’s intention to cite previous convictions
(where appropriate).
h)
A copy of the Financial Means Form.
Note: The summons, section 9, evidence and other paperwork should be served
no later than two weeks prior to the date of the hearing.
8.
Serving the Summons and Supporting Information
The summons may be served by First class post which is deemed acceptable
Service by the Court. A Proof of Service form listing details of the delivery of the
court pack will then be signed and stamped by the admin officer who has
responsibility for the post. This can be produced in Court as Proof of Service. If
accepted as ‘good service’ by the court, a case may be permitted to proceed in
the absence of a defendant who has failed to attend court for the Hearing.
9.
Prosecution Outcomes
There are four possible outcomes from a court case:
1.
2.
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The parent/carer attends and pleads guilty and the case is dealt with.
The parent/carer pleads guilty by post and the case is dealt with.
5
3.
The parent/carer does not attend court and has not indicated how they
might plead. In these circumstances the Authorised Officer will ask for
the case to be heard in absence and presents the magistrates with the
“Proof of Service form” if the service is considered good then the case
will, be heard in absence of the parent/carers.
The parent/carer can plead not guilty either by letter or in person. In
this case a trial date will be set. Prior to the trial will be a Pre Trial
Review. There may then be a situation where the school and/or the
Children & Families Practice Worker involved in case will have to
prepare a Section 9 statement and attend court to give evidence in
person.
4.
At the conclusion of the case Authorised Officer will write to the school to inform
them of the outcome in court. The school will continue to closely monitor the
pupil’s school attendance over the next six months, to inform future strategy and,
where necessary, any further Court action, e.g. an application for a Parenting
Order under section 8 of the Crime & Disorder Act 1998 or a further prosecution
under Section 444(1A).
10.
Proving an ‘aggravated offence’ [444 (1A)]
The higher "aggravated offence" penalty applies to parent/carers who know that
their child is failing to attend regularly at school and there is no reasonable
justification for this e.g. the parent/carer fails to take reasonable action or there is
another underlying reason for the child's poor attendance. If a defence of
“reasonable justification” is offered by the defendant when they plead “not guilty”
to the charge the burden of proof falls on the defendant not the LA.
11.
Primary Disclosure
The Local Authority has an obligation, when a parent/carer pleads not guilty to an
offence of failing to ensure regular school attendance of her/his child, under sec
444 (1) or 444(1A), to disclose to the parent/carers legal representative, if
requested by that representative, all material contained in the school or Children
and Families Practice Worker’s file that has not hitherto been disclosed as part of
the Section 9 Statement. The reason for this is the defence solicitor may wish to
undermine the prosecution by referring to materials in the case file.
12.
Costs
A schedule of work should be drawn up to indicate to the court the costs involved
in bringing a case to court, when that case has been found to be proven. The
costs will be from the “start of the investigation” which is deemed to be from the
Attendance Interview stage.
13.
The Law
In law, parent/carers have the primary responsibility for ensuring that children of
compulsory school age (5 - 16) receive a suitable education, either by regular
attendance at school or otherwise (section 7 of the Education Act 1996). If a pupil
of compulsory school age fails to attend school regularly, the LA can prosecute a
parent/carer.
Section 576 of the Education Act 1996 defines "parent/carer" to include:
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


All natural parent/carers, whether they are married or not;
Any person who, although not a natural parent/carer, has "parental
responsibility" for a child or young person.
Any person who, although not a natural parent/carer, "has care" of a child or
young person. Therefore, if the child lives with an aunt, grandparent/carer
or friend then they have a legal duty to ensure that the child attends school.
Section 3 of the Children Act 1989 defines "parental responsibility" (PR) as all the
rights, duties, powers, responsibilities and authority which by law a parent/carer
has in relation to a child and his/her property. Anyone who has Parental
Responsibility (PR) can be prosecuted under Section 444 (1) of the Education
Act, 1996, even if they are an absent parent/carer, as long as they have been
kept informed of the process, invited to meetings and given the opportunity to
rectify their child’s poor attendance.
What follows is detailed guidance relating to LA prosecutions of parent/carers
under section 444 of the Education Act 1996.
14.
Offences
A.
444(1)
Failing to ensure regular school attendance Section 444 Education Act 1996
Being a parent/carer (a) of a child of compulsory school age (b) who is registered to
a school failed to ensure that they attended regularly.
Points to Prove:




B.
Child is of compulsory school age,
Is registered to the roll of a school,
Child failed to attend school regularly.
Reason was not with leave, sickness or any unavoidable cause.
444 (1A)
Failing to ensure regular school attendance (Aggravated offence) Section 444(1A)
Education Act 1996 (as amended by S72 Criminal Justice & Court Services Act
2000).
Being a parent/carer (a) of a child of compulsory school age (b) who is registered to
a school and knowing that the child was failing to attend regularly did without
justification cause them to do so.
Points to Prove:




That the child is of compulsory school age
Is registered to the roll of a school
That the child has failed to attend school regularly
That the parent/carer knew the child was not attending
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Points to prove for the defendant:

That the parent/carer had reasonable justification in not sending their child to
school.
The difference between offences (1) and (2) is that the former is an offence of strict
liability and it is not a defence to say that you did not know your child was not
attending school. Offences under Sec 444(1A) are not absolute offences and for
this aggravated offence (2) the prosecution must prove that the accused knew that
the child was not attending school.
In respect of (1) the maximum penalty is £1000 (level 3 on the magistrates’ scale of
fines) and in relation to (2) it is £2500 and/or up to 3 months imprisonment or both
(level 4 on the magistrates’ scale of fines); the magistrates also have the option of
considering a community penalty. The major effect of the latter offence is that the
Magistrates’ can require the defendants to attend and issue an arrest warrant for
the purpose.
C.
Lateness
When a child is persistently late and arriving in school after the close of
registration, the parent/carer is again guilty of an offence. In the case of Hinchley
v Rankin (1961), it was deemed that absence at the prescribed time when the
class register is closed is a failure in regular attendance.
If a prosecution is to be brought wholly or partly on late attendance, then
evidence will need to be given of when the school registration process ends.
D.
Education Supervision Orders (ESO)
An Education Supervision Order (ESO) makes the Local Authority (LA) responsible
for educating a child of compulsory school age. LAs may apply for an ESO instead
of, or as well as, prosecuting parent/carers for poor attendance or failure to obey a
School Attendance Order.
Section 447 of the Education Act, 1996 requires the LA to consider whether it would
be appropriate to apply for an Education Supervision Order (Section 36 of the
Children Act, 1989). In addition upon conviction a Court may require the LA to
consider an ESO unless the LA can demonstrate that it has given due
consideration to such an Order and it has been decided that the child’s well being
can be safeguarded without it. Where a Court has required the LA to consider an
ESO and the decision is made not to seek such an Order then the Court must be
advised of the decision within 8 weeks in writing.
It is essential, in every prosecution brought under ss 443 and 444, that the LA
demonstrates to the court that it has given due consideration to s447 and must
explain the rationale behind any decision not to seek an ESO. A checklist is
available for this purpose.
ESOs should ensure that a child receives full-time education suited to their age;
ability, aptitude and any special educational needs, and that both parent/carer and
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child are given sufficient support and guidance. A supervising officer is appointed to
work with the child and family. ESO proceedings are "family proceedings" as
defined by the Children Act 1989. This means the child's welfare is the main
consideration.
An ESO normally lasts one year or until the young person reaches 16. ESOs may
be extended for up to three years if a LA applies within three months of the expiry
date, and may be extended more than once.
15. Fixed Penalty Notices (FPNs)
Refer to the Code of Conduct and Protocol for the issue of FPNs.
The issuing of an FPN will be considered along side other legal sanctions
available to the service. This decision will be based on the age of the child(ren)
concerned, other school age siblings and the total amount of absence. In general
the FPN is used as a deterrent to future unauthorised absence, lateness or termtime holidays and not where the non-attendance is entrenched.
If the parent/carer does not pay the fine they will be prosecuted under Section
444 (1) Education Act, 1996 for the non-attendance of their child not for their
failure to pay the fine. If they do pay the fine the “slate is wiped clean” in regard to
the previous non-attendance and cannot be used against the parent/carer in a
future non-attendance prosecution.
16.
Parenting Orders (PO)
In all non - attendance prosecutions the LA must consider whether it is in the best
interests of the child to ask the court to impose a Parenting Order. The Order
consists of directions from the court in regard to the parent/carer ensuring the
child’s regular attendance and will also include a period of parenting support
sessions. If, after discussion with the Authorised Officer, a PO is deemed to be
appropriate the Authorised Officer will prepare a draft document in readiness for
the court. If, however, it is not deemed appropriate to request a PO the Section 9
statement must provide reasons for not imposing one; these might be due to the
fact the child is in their last years at school with no younger siblings; the
parent/carer has failed to engage with other interventions on a voluntary basis
and there is no indication that an Order will affect any change; the parent/carer
has generally failed tot co-operate with agencies. The Order can only be made if
the parent/carer attends court in person.
17.
School Attendance Order (SAO)
Section 443 Education Act 1996
Offence:
Being a parent/carer of a child who is of compulsory school age and is not
registered at a school, you were served with a School Attendance Order;
however, you have failed to comply with the requirements of that Order
Points to Prove:
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I. The child was of compulsory school age,
II. The parent/carer had failed to comply with the Order.
III. That the Notices served under ss 437(1) & 438, give recognition to the
time limits set out in the Act i.e. the parent/carer is given 15 days to
respond to each Notice.
IV. That the Notices and Order were served upon the parent/carer.
Statutory Defences: That Notices and Order have not been served.
Procedure  The parent/carers are first served with a Notice under s437 (1) of the Act and
are given 15 days in which to advise the LA of the arrangements being made
for their child’s education either through schooling or by Elective Home
Education (EHE).
 If after 15 days they give no indication that the child is on the roll of a school or
they have not elected to provide ‘Education by Parental Provision’ then a Notice
is served under s438 advising them that the LA intends to name a particular
school in a School Attendance Order.
 At the expiration of 15 days a School Attendance Order is served requiring
them to register the child at the school named in the Order.
 Once the Notice under s438 has been served the process must continue
through to the service of the Order itself even though the parent/carers may
have registered the child at a school in the interim. It is a matter of discretion
as to how long the parent/carers are given to comply with the Order but undue
delay must not occur before commencing legal proceedings.
 If a child is the subject of a Statement of Special Educational Needs naming a
particular school, then it will not be necessary to serve the s438 Notice.
NB. This offence relates to a child who is not registered on a school roll and
where there is no evidence that they are receiving a suitable education. This
offence commonly occurs where a parent/carer does not get the school of their
preference and then refuses to send the child to the allocated school or where a
family moves into the area and the family make no arrangements for their child’s
education. Similarly where a parent/carer opts for Elective Home Education
(EHE) and subsequently fails to satisfy the LA that their child is receiving a
suitable education then this offence is likely to be disclosed. If a parent/carer is
prosecuted under s443 and still fails to secure a place for their child at the school
named in the Order, should the LA wish to initiate further legal proceedings then
the process must start afresh. Original notices and orders cannot be used to
support subsequent action.
It is usual practice to send a covering letter with the Notices explaining why they
have been served.
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ADDENDUM:
Investigation - Content of Notes
Our assessment of the problems that preclude regular school attendance,
together with subsequent action plans need to be focused and the notes need to
reflect the detail of interview with all parties or the result of enquiries made. The
circumstances of the interview or the result of an enquiry may be inadmissible
because it was not in the presence and hearing of the person prosecuted but
such recorded information remains valuable to the prosecutor and may assist in
the cross examination of a defendant - evidence of rebuttal. It is therefore crucial
that arising from all meetings there is: 
A record of the reasons for specific periods of absence and any difficulties that
preclude regular attendance. The inquiry should not be addressed in general terms.
We need to establish the alleged reason for each separate period of absence. To
subsequently say that the parent/carer always says when their child is off school
the child is ill has little assessment or evidential value.

A record of the action the parent/carers have taken to ameliorate the problem. If
they have taken little or no action enquire as to why this is so. Remember s7
Education Act 1996 places upon them a clear responsibility in regard to their child’s
education. Do not blandly advise parent/carers of their legal responsibility if they
are endeavoring to overcome a legitimate difficulty. To do so suggests incoherent
and illogical action on our part. If, however, it is necessary to do so please ensure
you record what you said. Also, a formal warning letter should be sent to
parent/carers at the earliest opportunity reminding them of their legal
responsibilities.

A record of the action plan or Parenting Contract stipulating specific action to be
taken by the child, the parent/carers, the school, the Children & Families Practice
worker and any other agency or any other service. Be specific in your notes as to
what these are. There have been occasions when sometime after an event,
through a lack of detail in notes, the LA has had profound difficulties when
preparing a statement in detailing the previously agreed strategies. Strategies put
into place to support attendance must be meaningful, and measurable. For
example, if you request that a parent/carer accompanies their child to school then
you must have some measure in place to establish to what extent they complied
with the request - it is not sufficient to say that it was infrequent unless you have the
information to show that this was so.

A record of any allegation, or grievance disclosed. It is important that you report
the matter to the competent authority and in due course note their response. Again
such information is critical in proceedings when parent/carers complain that their
concerns have not been addressed.

The record of the PACE Interview. By conducting a PACE interview and asking the
parent to sign and/or amend it at the meeting means that a parent/carer cannot
later claim in court things that were not addressed at the PACE meeting. This
ensures all issues are dealt with; also, the court will be skeptical of the
parent/carers mitigation if it has not previously been notified to the LA.
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Note: On each occasion that you meet with parent/carers and a child it is
important that you establish or re-affirm any difficulties precluding attendance - do
not assume that any previously disclosed problem remains current.
Evidence
*Evidence is anything that establishes a fact or gives reason for believing
something. In court this can be documentary or oral and the accuracy of such
evidence should be beyond question. Section 9 statements can only refer to
events prior to the ‘period of complaint’ - which is technically inadmissible as
evidence – if you have already raised these events directly with the
parent/carers(s)/carer(s) during the evidential period, e.g. "On the 18th June I
reminded Mr Patel that Imran had now failed to attend school for a single
complete week since last September."
In the Magistrates’ Court the LA proves its case by citing admissible evidence.
Such evidence takes two forms and these are: Factual Evidence - arises from matters of fact known directly to yourself and can
be derived from intervolve, (but also see Hearsay Evidence), examination of
records and your own observations. For example, you might see a child working
in a supermarket on a day and at a time when they would otherwise have been
expected to have been at school.
Documentary Evidence - would include Certificates of Attendance, letters that
have been sent to the defendant and notes extracted from school registers.
The practice in this Service is to conduct our prosecution on the basis of written
evidence (statements) served on the defence and court under s9 Criminal Justice
Act. The advantage of this practice is that it does not necessitate the routine
attendance of witnesses in court. Their attendance to give oral evidence will only
be required when a “not guilty” plea has been entered and the defence is
disputing all or some of the evidence. Even where a defendant is pleading “not
guilty” the prosecution evidence can be presented in the form of a written
statement if the worker’s evidence is not in question. The defendant is likely to be
arguing their defence on a point of law. Such statements can only contain
admissible evidence.
Rather than endeavour to define Admissible Evidence it is easier to give
examples of Inadmissible Evidence. You will note that in the first two examples it
is possible to transform such evidence into an admissible form:-
1.
Evidence outside the period of the summons. (Offences under the
Education Act are summary offences and we can only give evidence
obtained in the six months prior to laying the information before the court).
In the circumstances if we wish to give evidence on an issue that is likely to
proceed this period it is important that when you interview a parent/carer
you make reference to the matter. In any event making reference to past
strategies is good practice whether commenting on their success or failure.
For example, if you have previously requested medical certificates and this
request were not complied with then you perhaps would say “Mrs Jones you
will recall that when we met on 23rd June I requested that all future
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absences through illness or injury be supported by medical certificates. I
made this request so that the LA and school could be satisfied that on such
occasions that George was absent he was medically unfit to attend school,
can you tell me why you did not meet this request.” By so doing evidence
outside of the period of the summonses has now become admissible.
2.
Hearsay evidence - this is evidence of something that you do not know for
yourself but have had from a third party. For example a Head of Year may
have had a conversation with a parent/carer outside of your hearing that
contradicts what the parent/carer may have told you. By getting the matter
repeated in the presence and hearing of the parent/carer at a meeting you
have an opportunity not only to confront the issue but also to give
corroborative evidence of what has been told by the third party. This could
be done at the Attendance Interview. Another way that hearsay evidence
can be transformed into admissible evidence is simply by you putting the
facts as told to you to the parent/carer but in such circumstances it has no
corroborative value.
3.
Evidence relating to parent/carers, siblings or other parties not subject of
proceedings.
4.
Opinions. Whilst you may be invited to give an opinion in ESO
proceedings in the Family Proceedings Court such practice is taboo
in the Magistrates’ Court. Occasionally the defence will invite you to give
an opinion. Resist the temptation. Only expert witnesses are permitted to
give opinions.
5.
Conjecture.
6.
Evidence of previous convictions. These can only be shown to the
magistrates when the current case has been proved. In the event of a “not
guilty” plea at the aggravated level, the prosecution can make an
application to the court, prior to a trial, to prove “bad character” – if
accepted by the magistrates this allows the prosecution to use previous
convictions as part of their evidence during the trial.
Witness Statements
The majority of our prosecutions are proved on the basis of written evidence
submitted in the form of a statement. In essence your statement is a factual story
based solely on admissible evidence. It is important that no reference is made to
LA/Service jargon because it is likely to be meaningless to the defendant and the
magistrates, and the need to provide explanations is a distraction to the
proceedings. For example, if in your evidence you make reference to an
Attendance Interview then describe in your statement that the purpose of the
meeting is to discuss the nature and frequency of absences together with any
concerns that the family might have on the matter.
When documents form part of the evidence in criminal cases they need to be
produced in your statement of evidence in chronological order in the following
form: “I produce the Certificate of Attendance as Exhibit BP/1”
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“I produce the invitation to the Attendance Interview as Exhibit BP/2”
Letters used in evidence must be written by or sent or copied to the school or
Children and Families Practice worker responsible for the section 9 statement –
they therefore have an “ownership” of those letters. In some cases, however,
when letters are sent to or copied to the school from outside the LA (e.g. GP
letters) it may be good practice to seek permission prior to using the letters as
evidence. If permission is granted this should be recorded in the section 9
statement.
Section 566 of the Education Act 1996 allows for the Certificate of Attendance,
signed by the Head Teacher or his/her deputy, to be presented in court without
them being required to attend to give oral evidence. Thus there would be no
need for him/her to prepare a written statement producing the document as an
exhibit.
In setting out your statement you;
1.
Identify your role.
2.
Prove the offence.
Proving the Offence
1
The Statement needs to be written on a Sec 9 “Statement of Witness” form.
2
Full name of the student, age and date of birth and the school at which s/he is a
registered pupil.
3
Full names of parent/carers.
4
Full addresses of student and parent/carers. If a parent/carer is not resident with
the child we need to provide evidence that they are exercising “day to day” care
and control although this is a matter of good practice rather than legal
requirement.
5
Distance from home to school. If home is over the distance specified in the
legislation you will need to indicate what the LA’s transport provision is for the
child e.g. bus pass. If there is no provision because the placement arises from
parental choice and a nearer school is available, then this needs to be stated in
the section 9 as the LA is responsible for transport. Conversely, where the LA is
responsible for transport due to an SEN statement or a lack of local provision of
school places this also needs to be clear in the statement for, as long as the LA is
fulfilling its statutory responsibilities, the parent/carer can be prosecuted if their
child is not attending school.
6
Each entry should be:
a. Dated in the left hand column (facilitating an ease of following a chronology)
b. Evidence relating to that date to follow. Elaborate on your evidence saying
why a particular action was taken.
c. Letters relevant to that date, which are to be attached to the Statement,
should be marked ‘Exhibit BC 1’ etc… as mentioned above.
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d. The letter in question should also be marked ‘exhibit BC 1’ etc.
When parent/carers plead guilty the prosecutor only needs to give a summary
of the evidence.
7
Section 444 offences must conclude by stating that consideration has been given
to an application for an Education Supervision Order and a Parenting Order: if
one is not sought, then reasons need to be given for the decision. Also, it is
important to record in the Section 9, why an FPN has not been deemed
appropriate – normally the reason will be due to the entrenched nature of the nonattendance or the age of the child.
8
Produce the record of the Certificate of Attendance (s444 offences), signed by the
Headteacher - Notices and Order (s443 offence)
9
School Analysis of the non-attendance especially when parent/carers did not
attend the Attendance Interview:
Criminal Procedures & Investigations Act, 1996
Code of Practice under Part 2
It has long been established in Common and Statute Law that an individual
person has the right to a fair trial, and as indicated earlier in this document, Article
6 of the European Convention on Human Rights now underwrites this. An
integral element of the fair trial process is fair disclosure. There are three forms of
disclosure – there are examples of these forms below.
1.
2.
3.
Schedule of Sensitive Material
Schedule of Non-Sensitive Unused Material
Disclosure Officers Report
The Codes of Practice set out in the legislation is designed to ensure disclosure
of material which does not form part of the prosecution case. The disclosure will
assist the accused in the preparation and presentation of their case and enable
the court to focus on all the relevant issues in the trial. Disclosure, which does not
meet this objective, jeopardises a fair trial.
We are required to have regard to the Codes of Practice under the Criminal
Procedures & Investigations Act and the principle issues arising for us are our
individual roles and the retention and disclosure of material relevant to the
investigation.
Individual Roles
The Criminal procedure and Investigations Act, 1996 (Code of Practice 2)
legislation creates four distinct roles i.e. the Investigating Officer, the Officer-inCharge of the Investigation, the Disclosures Officer, and the Prosecutor. The
Code suggests that one person can fulfill the first three roles but the role of
Prosecutor remains separate unless it can be argued that resources are the
determining factor in deciding otherwise. Within our current structure the roles
unfold as follows:-
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 Investigating Officer: This is the role undertaken by the school or Children
and Families Practice Worker who has the responsibility for carrying out the
duties imposed under the Code, including in particular, recording information and
retaining records of material and other information.
 Officer in Charge of the Investigation: Currently undertaken by the Authorised
Officer who is responsible for ensuring that proper procedures are in place for
recording information and retaining records of information and other material in
the investigation.
 Disclosure Officer: This task falls upon the LA designated person, currently
the Authorised Officer, who is responsible for examining the records created
during the investigation, revealing material to the prosecutor during the
investigation and any criminal proceedings resulting from it, disclosing it to the
accused and certifying where necessary that action has been taken in
accordance with the requirements of the Code.
 Prosecutor: Authorised Officer and Legal Services. The Prosecutor has
responsibility for reviewing the information regularly and ensuring the disclosure
rules are followed.
Retention and Disclosure of Material Relevant to the Investigation
What material must be retained?
All material, including information, which is obtained in the course of the
investigation and which may be relevant to the investigation.
What do we mean by relevant to the investigation?
Material may be relevant to an investigation if it appears to the investigator, or the
officer in charge of the investigation or the disclosure officer, that it has some
bearing on any offence under investigation or any person being investigated, or to
the surrounding circumstances of the case unless it is incapable of having an
impact upon the case. The latter clause is clearly a subjective test and it is better
to disclose than not to do so. Material that should be disclosed not only embraces
that which would support a defence to the offence but also that that mitigates on
behalf of the defendant.
The most obvious disclosures will be the attendance register, computerised or
otherwise, and letters of complaint or concern e.g. addressing issues of bullying
or unfair treatment. In relation to notes etc., that provide an explanation for an
absence it is the practice of this Service to exhibit them in our statements and
therefore they are not the subject of disclosure within the terms of this piece of
legislation.
When do we make a disclosure?
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Schedules of disclosed material are only submitted to the defence and court after
a plea of “not guilty” is entered and when requested by the prosecution, but it is
important that the material is available in the Prosecution Case History File. It is
the practice of our courts when such a plea is entered to hold a Pre-trial Review
to determine the witnesses to be called, the length of the trial and to fix a date of
hearing. We undertake to make our disclosure within 14 days of that hearing.
Expressions Used in the Context of Legal Proceedings
(i)
“The laying of the evidence” – this refers to preparing the summons for court
with a brief description of the offence; the prosecution period can only relate
to a 6 month period prior to the summons being sent to court for authorisation.
(ii)
“Evidence in Chief” - this refers to your initial evidence in court i.e. the
evidence that proves the prosecutions case.
(iii)
“Cross Examination” - is simply what it means. This can be by the Bench
and/or defence. You may be asked about matters outside the period of the
summons so be fully appraised of case history. It is the prosecutor’s
responsibility to challenge irrelevancies. Courts are generally tolerant towards
the defence and the prosecutor needs to be mindful of this fact and may
consider it prudent not to challenge every irrelevancy. Challenging only on
such issues that would undermine the prosecution case.
(iv)
“Effective date” - is the date on which the case will be heard.
(v)
“Pre-trial Review” - when a defendant has indicated that they intend to plead
‘not guilty’ the case is adjourned for a Pre-Trial Review when a Clerk will
meet with the prosecutor and defence and agree the witnesses to be called
and determine the approximate length of time required to hear the case. Even
if the defendant changes their plea to one of guilty then the case still cannot
be heard because there is no Bench to adjudicate on the matter.
(vi)
Level 3 Offence - offence is non-imprisonable with a maximum fine of £1000.
This is a 444 (1) offence.
(vii)
Level 4 Offence - offence is punishable with a maximum fine of £2500 and up
to 3 months imprisonment. This is a 444 (1A) offence.
(viii)
Summary Offence - can only be heard in the Magistrates Court. All nonschool attendance cases are summary only.
(ix)
Reporting restrictions - under s37 Children Act 1989 it is open to the Bench to
impose “reporting restrictions in order that the identity of a child named in
proceedings is not identified. Such restrictions are not imposed per se and in
only one court in the county does the Clerk invite the Bench to make an
Order. Such Orders are open to challenge and the press will frequently mount
an opposition to an Order.
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(x)
Case Stated - A decision of a particular Magistrates Court is for good reason
not binding upon other courts although the decision may remain of interest.
Where, however, a point of law has been argued in an Appeal Court then the
outcome is binding and is known as “Case Stated” and we are bound by the
decision.
(xi)
Good service - relates to the service of summonses, notices, statements and
exhibits (i.e. the prosecution case) upon the defendant and has nothing to do
with our delivery of evidence in court! Such evidence needs to be served at
least 7 days before the hearing. (We would expect it to be no less than 14
days so that we can persuade the court that the defendant has had ample
opportunity to respond to the notice under Section 9 Criminal Justice Act and
therefore it is reasonable to proceed in their absence). It can be by hand,
registered, recorded or first class post. We use first class post.
(xii)
Proof of Service - the admin staff will sign a “Proof of Postage” form to certify
the court paperwork has been sent to a defendant on a particular day.
(xiii)
“Adjourned sine die” - relates to when a case is adjourned without a date of
hearing being fixed. This may occur when it is established that a summons
has not been served and the whereabouts of the defendant are not
immediately known but is likely to be traced.
(xiv)
Absolute Discharge - this is a conviction for which there is no further penalty.
(xv)
Conditional Discharge - is a conviction where no further penalty is given at the
time of sentencing. If, however, the offender commits a further like offence
then upon conviction for the second offence the Bench may re-sentence the
original offence. Often they will impose a fine and then give a further higher
fine for the subsequent offence. A conditional discharge is normally for 12
months but can be for 6 months.
(xvi)
Spent Conviction - Under the Rehabilitation of Offenders Act dependent upon
the nature of the sentence a time tariff is affixed and after a specific period of
time the conviction cannot be cited in proceedings.
(xvii)
Previous Convictions – any offence that has been committed by the defendant
can be listed as a previous conviction – a list is obtainable from the police.
Things to Note about the Court Process


The first date of hearing is only “effective” if the defendant pleads guilty or fails
to appear and the court agrees to the prosecution application for the case to be
heard in their absence. We must in the latter circumstances satisfy the court that
the statements have been properly served together with the statutory notice
under s 9 Criminal Justice Act 1967 i.e. at least 7 days before the date of
hearing. (Since there is no requirement for the parent/carer to appear in person
to answer the summons then little would be gained in seeking an adjournment.
It would merely afford them the opportunity to waste the court and prosecutor’s
time.
Courts have a dress code and whilst you may not agree to the need to wear
sober clothing this service expects the dress code to be adhered to.
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
Magistrates’ are addressed as “Your Worships.” Responses are made to the
Chairman/woman of the bench.

When giving evidence follow the “pen” of the Clerk since they will be making a
note of what you say. Go too fast and you will be constantly interrupted and
asked to “slow down”.

After you have given “evidence in chief” remain in the witness box to await “cross
examination”. Following this process the prosecutor is entitled to re-examine you
on any issues raised in cross-examination but is not entitled to introduce fresh
evidence. You may be asked to refer to your evidence to clear up an ambiguity
that has risen or to give evidence of rebuttal

It is acknowledged that giving evidence is a daunting experience for most but
remember to speak in a clear and distinct voice that can be heard by all. The
court will see you as a professional witness, and is not tolerant of hushed tones
from the witness box.

After you have given evidence sit beside or behind the prosecutor and be
prepared to answer any questions raised by them.

If for any circumstances you leave court e.g. if the court adjourns for lunch, then
you must not discuss the case with any witnesses who have yet to give evidence.
Good practice is to have no contact with them and then no inference can be
drawn by the Bench or defence.

In English criminal law there is not a presumption of guilt and it is the
responsibility of the prosecution to prove their case “beyond all reasonable
doubt.”

It follows that a defendant does not have to give evidence. Should they decide to
do so it can be given from the witness box or from where they stand. If they do
not go into the witness box the prosecutor cannot question them and the Bench is
entitled, therefore, to give less weight to any evidence given.
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