Category Archives: justice

What is reasonable?

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Until we see the full judgement in the recent case we won’t know what the judges in the High Court were thinking when they seemed to deemed it ‘reasonable’ for a parent to be able to take a child on holiday for a week during school term-time.

It is worth recalling that the overarching responsibility of parents is to see that their children receive an education when they are of compulsory school-age (there is a grey area for young people between the ages of 16-18 that will need clarification at some point.)

For young people between 5-16 the law says:

Duty of parents to secure education of children of compulsory school age.

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a)to his age, ability and aptitude, and

(b)to any special educational needs he may have,

either by regular attendance at school or otherwise

The issue turns on the definition of ‘regular attendance.’ If the parent, as most do, hands over the responsibility to the State, what is the nature of the contract between the parent and the State?  The State agrees to provide the child with 190 days of schooling per year. It is accepted that children may be off sick and there may be other reasons for a child not to be present, but these will require ‘leave’ to be absent.

In the 1990s two things happened, Ofsted started reporting regularly on attendance levels at schools and the State wanted to drive up standards of education that were thought to be falling. As a result, the law was tightened to ensure regular attendance, with two defences; ‘sickness or unavoidable cause’ or ’with leave’. Historically, schools could grant up to 10 days leave, but that right was removed over time.

The government explained the basis for this change in relation to family holidays in the background to the secondary legislation making the change.

 The 2006 Regulations refer to parents applying for family holiday in “special circumstances” and to schools having discretion to grant up to ten school days of holiday per year. Many parents and some schools have interpreted this law as an automatic entitlement to an annual two-week term time holiday. The Education (Pupil Registration) (England) (Amendment) Regulations 2013 amend the 2006 Regulations to clarify that leave of absence during term time shall not be granted unless there are “exceptional circumstances”.

They further explained that;

For pupils to benefit from education and achieve their full potential they must attend school regularly. School attendance data from 2010/11 showed that 90 per cent of pupils with an absence rate of less than 4 per cent achieved 5 or more A*- C grades at GCSE or equivalent. In primary schools, 4 out of 5 pupils with an absence rate of less than 4 per cent achieved level 4 or above in both English and mathematics.

As Oxfordshire County Council’s document on the subject for parents notes;

90% attendance means that your child is absent from lessons for the equivalent of one half day per week.

So how draconian should the State be? Personally, I think in the first year of schooling  when routines are being set and key topics may be being learnt for the first time every effort should be made to attend and taking time out may not be helpful either for the child or their classmates if it disrupts the teaching. As a rule of thumb after that I think where pupils are rarely or never off sick, the guidelines in the old 10-day rule probably provided a sensible rule of thumb for head teachers. After all, some parents cannot take holidays during school holiday period because of the nature of their jobs. However, if a child has missed a lot of time through sickness, taking time off turning term-time that year for a holiday isn’t a good idea and I would expect a head teacher to refuse ‘leave’.

Essentially, the legislation should encourage parents to make the most of the education on offer for their children without seriously affecting either their education or that of their classmates.

My parents only ever took me out of school for one week at the start of my third year in junior school and I never really understood the work on fractions that was introduced during that week. Had it been the last week of the summer term it might have been a different matter.

However, what is clear is that major changes to legislation really ought to be part of primary legislation and not created by secondary legislation and Ministerial fiat. Had that been the case here, Parliament could have discussed in committee what it meant by the phrase ‘attend school regularly’ and the acceptable reasons not to do so.

Perhaps, as a result of this parent’s action it will now have a chance to do so. They might also ask whether if the State isn’t able to fulfil its part of the contract it should make up the missing days? Lord Denning did discuss this in Meade v Haringey in 1979 at the end of the Winter of Discontent, but it never came to trial and a decision.

 

 

 

 

Home Schooling

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I apologise for not posting much recently, but, like last year, I am busy with elections. This year I am the Lib Dem candidate for Police & Crime Commissioner in the Thames Valley.  This post covers the three areas of Buckinghamshire, Berkshire and Oxfordshire. The present PCC is a Tory.

If you live in the area or want to know more about my campaign, visit jh4pccblog.wordpress.com where there are my thoughts on the role.

As part of my campaign I am investigating whether there is a growing trend on the part of a few schools to suggest the perfectly legitimate policy of home schooling to parents of a small number of Year 11 students.

Home schooling, where there are the resources and desire to do, so can work effectively. However, I am worried that some schools might see it as an option rather than to exclude a pupil and I want to know whether this is the case?

Could you please let me know if you have come across this happening by leaving a comment? There is no need to name the school, but an indication of the geographical region and whether it is an academy would be helpful.

Thank you for your help.

 

Stupidity and criminality: a fine line?

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The news that a teenage boy has been placed on the police national database for sharing a photograph of himself unclothed via an app he expected to destroy the photograph within seconds of its receipt raises interesting questions. Firstly, there is the issue of what is indecent? Had he taken a photo using the app on a nudist beach and shared it with someone else on the same beach would it have been indecent. Secondly, was the school suffering from large numbers of pupils sharing such photographs of others in a manner that was disrupting the life of the school, even if the photographs were taken outside of the school? If this was the case, were pupils told that taking and sending such photos, even on a self-destruct basis, was a breach of school rules?

Even if all the above were true, the boy seems to have been stupid. The person who stopped his photo self-destructing and then passed it on to others gratuitously seems to be much more culpable, as was anyone then passing it on to another person. However, what if the boy had painted an image of himself in a life class and then photographed it? Would that constitute a representation of art or an indecent image, even if forwarded to a third party?

The fact that the police officer appears to have said that she had been told by her superior to take action suggests this might not have been an isolated incident. Even so, did it merit what appears to be a deterrent sentence of inclusion as intelligence on the police computer with all that entails for enhanced DBS checks? Without knowing the full facts, it is difficult to answer that question other than in the abstract.

There was a suggestion during the coalition government that all of these teenage transgressions be wiped from the record at eighteen if there had been no further mis-behaviour. After all, most teenagers do silly things, some of which are not legal.  I would support at least right the of an individual to have the ability to ask a court to take such action as a way forward. Presumably, the school will have to decide whether it includes reference to this event in any support it provides on an application form for a job, apprenticeship or university place?

The law does seem to be bearing down hard on teenagers at present even though I suspect that deterrent sentences have less effect on teenagers that on adults, as young people often act before thinking. In this case it raises the question of where does the criminal law operate in relation to institutions? I suspect the answer is that the rule of law is paramount and must always take precedence over the rules of an institution. However, there seems to be an issue of what happens with cases that fail to meet the charging threshold and are left to junior police officers to decide the outcome and consequences for the individual in such circumstances where they cannot have either a jury or a bench of magistrates decide on guilt or innocence. That seems to me to pose big risks as we have seen with the use of unfettered police bail in the past. It is why I have never favoured district judges sitting alone to decide on the issue of guilt or innocence except in the most clear cut motoring cases.

A holiday tax

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The news from the Ministry of Justice, obtained be the Press Association under a FoI request, that there has been a steep rise in prosecutions for non-attendance at school is concerning. The increase has been linked variously to the increase in pupil numbers and to the stricter rules introduced last year about taking pupils away from school during term time to go on a family holiday. Commentators have noted that the current level of the fixed penalty fine is less than the savings a family can obtain by going on holiday in term time. To that extent it amounts to a tax on those earners who can afford to pay yet still make the savings.

However, there is a deeper issue here that relates to many of the rules established in order to run our school system; some still dating from the nineteenth century. For instance, the rules about pupils eligible for free transport and the nature of ‘safe routes’ pupils can walk date back into the mists of time. They are also not applied uniformly across the country, with parents in London receiving a much more generous deal that their rural counterparts. Maybe, the DfE should set up a Commission to review all these rules and how they help create an effective school system for the twenty-first century.

On the vexed question of holidays in term time, I have two suggestions to make. Firstly, no holiday should be allowed during the first year a pupil is at school. Based upon attendance during that year, pupils will good attendance records can be allowed up to two weeks in the following year. This provides an incentive for attendance and recognises that a child going on holiday one year would not be eligible the following year and would need to earn the opportunity in the subsequent year through continued good attendance.

Secondly, I would suggest to Mr Gove that trials for non-attendance are just the sort of cases that could be used to try out a scheme for magistrates’ court hearings in local buildings. The closure of so many courts, and the proposed closure of many more, mean both parents and officers prosecuting cases often now have to travel considerable distances and then wait around for the case to be heard. I am sure that this encourages ‘no shows’ on the part of parents that hope to drag out the proceedings for as long as possible.

As an incentive, trails for non-attendance held locally, in say town council offices, could be exempt from the bizarre Criminal Court Charge that apparently imposes a fee of £520 on a parent that turns up and pleads ‘not guilty’ but only imposes a fee of £150 if they don’t bother to attend and the prosecutions still has to prove the case in absence. This Charge is on top of court fines and costs.

There is no more risk in dealing with these cases in local public buildings that in hearing transport to school appeals. The alternative would be to removal the criminal sanction from a failure to send children to school, but since the courts apparently sent 18 parents to prison for the offence such a move might spark a wider debate about the use of custody.

Operation Bullfinch

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The publication earlier this week of of the serious case review (SRC) into the grooming of six girls for sex in Oxfordshire raised serious questions for all professionals working with young people, including those working in schools. As an Oxfordshire county councillor since 2013, I have followed the developments after the outcome of the trial in 2013 with growing concern. The SCR has much to say about all agencies and their responses and makes uncomfortable reading.
One the one hand, schools have clearly responded with the creation of education programmes such as Chelsea’s Choice and through better working with other services. On the other hand, I am not sure that all the weaknesses identified in the SCR have been fully addressed. Are records of students changing schools forwarded promptly and in proper order? Do schools have good policies for the integration of pupils arriving outside of the September start date or can such young people easily become alienated, especially if their transfer is due to a failure to educate by the previous school.
Schools collect masses of data but, on unauthorised absences and truancy, are patterns fully scrutinised and is there a procedure for escalating concerns both upwards within the school and out to multi-agency groups? These may be early warning signs.
I am concerned if creating different administrative system for schools, whether free, academy, UTC, studio, community or voluntary has in any way hindered cooperation on the issue of dealing with troubled young people.
The recent Carter Review of teacher preparation discussed the need for teachers to know about psychology and child development whether during a child’s early years or during adolescence. This is an issue of concern to teachers even when the delivery of their subject is uppermost in their minds. I doubt the present teacher preparation programme is long enough to cover some of these issues we might expect professional to at least be sensitive to and many teachers will need to develop their knowledge during their early years in the profession.
As a county councillor, I also wonder whether the Cabinet system of government places too much authority in the hands of one councillor. Without effective scrutiny or questioning does it make it harder for others to engage with service delivery? Many elected members are tapped into a wide range of intelligence sources and their surgeries allow for ordinary members of the public to short-circuit official channels and cut through red tape. Now, I am not claiming that the families of these girls might have used that route or that officials frustrated by a lack of escalation might have sought to discuss such issues but there seems little discussion of possible whistleblowers in the SCR. However, would more involvement of elected members in effective oversight of services, although expensive compared with cabinet government, help issues to be discussed by bringing together more than one opinion? Every school has a governing body; Oxfordshire education has a single cabinet member and a scrutiny committee that meets about six times a year and hasn’t looked at truancy and exclusion rates in the past two years although it has done good work on investigating attainment levels.
Ineffective Committees in local government had a bad reputation but the risks from an ineffective single member are much greater, especially when oversight is sketchy. Now that the government is consulting on the possibly of elected members being criminally liable where there is neglect, including CSE, the attraction of more rather than less members being involved in oversight might seem persuasive.
Members of the public might also wonder why councillors in Oxfordshire haven’t agreed to meet as a Council to discuss the report on officers they employ and whose services they are ultimately responsible for to central government. A voluntary and rigidly timetabled one hour briefing wasn’t enough in my judgement and leaves at least this councillor frustrated. An agreed look across the Council by elected members to verify the steps taken and lessons learnt ought, in my view, to be the responsibility of all Councillors and not just a scrutiny committee. We all need to ensure that lessons have been learnt and see what else needs to be considered. Such actions should be a prerequisite for showing all elected members care.

Can we halve the number of women in prison?

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This blog doesn’t often stray away from education but when it does it generally comments on issues relating to the justice system. This morning Simon Hughes, a Lib Dem government minister in the Ministry of Justice suggested he would like to see the number of women in prison halved from around 4,000 to presumably around 2,000. Is this achievable? Well, it has been achieved with young offenders.

Under the last Labour government the number of under-eighteens in custody hit 3,000 in August 2008. By September 2014 the figure was down to just over 1,000 and the number of males in youth custody actually dipped below the 1,000 mark in October 2014. Now even 1,000 may be too many, but there has been a real achievement on the part of the Youth Justice Board and the courts that has produced this dramatic reduction during the life of this parliament. Admittedly, this has been a period when crime has been falling both nationally and internationally, but that shouldn’t diminish the achievement of the criminal justice system.

Reducing the female prison population may be harder to achieve. Of the 4,000 or so women in custody in the autumn of 2014, about 10% were on remand. Only another 10% were on short sentences of six months or less, so even wiping out the sending to prison of this group wouldn’t achieve the 50% drop the Minister is seeking. And, there are those in this group where the sentence would have been greater but for an early guilty plea and perhaps a reduction in the offence charged between arrest and appearance in court.

So, to reduce the female prison population the Crown Court judges are going to have to cooperate since more than 3,000 of the women in custody are there because a Crown Court judge has sent them to prison. Indeed, more than 25% are serving sentences of four years or more or of an indeterminate length. Add in those with a sentence of 1-4 years and that accounts for more than half the total of women in prison.

Why are they there? 900 are there for crimes of violence, the largest single offence group to generate custodial sentences among women these days. Add in robbery – a violent crime and burglary and you probably account for a third of the women in custody. Interestingly, only 10% of women are there for drug offences and a similar percentage are in prison for theft and handling. Perhaps the group that might be looked at for non-custodial sentences are the 12% or so of the prison population incarcerated for a range of other offences. And, just like men, women between 25 and 49 make up the bulk of the prison population.

Stopping re-offending and preventing offending in the first place are likely to be the key factors in reducing the female prison population, just as they are for men and have been with young offenders. As the Minister points out, many in prison have mental health problems and tacking those through the NHS might well bring reductions in the numbers in custody. Whether Crown Court judges should be ordered to treat women found guilty of offences differently to men guilty of the same offence when it comes to sentencing is a debate worth having. It falls into the same category of whether someone that needs to drive for a living should be able to argue exceptional hardship when faced with a driving ban, as they can and do every day in our courts.

 

Supreme Court one; Parliament a half

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This has been a busy week, so I am catching up on various issues. The Supreme Court decision announced last week that cautions are no longer to be required to be disclosed for life makes real sense in a world where a volunteer pensioner reading to under-fives can currently be required to disclose all criminal convictions, even those acquired half a century ago.

Now I think is the time to bring the Rehabilitation of Offenders Act and the disclosure rules into harmony so that everyone can easily understand what is required and why. This would include the police and the issue of ‘soft intelligence’. It would be silly if cautions, having been removed as part of the criminal record, reappeared in enhanced disclosures as part of ‘soft intelligence’ held by police and disclosed as part of the process of ensuring unsuitable people don’t work with children or vulnerable adults.

I have awarded a half to parliament because of the work of the group of parliamentarians that appeared at almost the same time as the Supreme Court judgement saying much the same thing. Less, helpful, as those who followed my blog after the stabbing of the Leeds teacher will know, was the actions of Labour and Conservative back bench MPs ganging up together to insert a new clause in the Bill currently going through parliament requiring mandatory prison sentences for anyone convicted of two offences of carrying a bladed instrument: a knife to you, me and the MPs.

To their credit most Liberal Democrats MPs voted against this proposal, and would presumably be happy to leave judgement on sentencing to the courts within the framework of a maximum tariff set down by parliament and the guidelines from the Sentencing Council.

How little there is to distinguish Labour and Tory policies also became apparent this morning in the interview the Labour Secretary of State gave to the Sunday Times. He is reported as saying that all two-year olds should be sent to school because basic skills such as counting and holding a pen are easier to grasp at school rather than at home or with under-qualified child minders. This sends a shudder through me. I suspect most two year olds aren’t ready for fine motor skills required in holding a pen, and as a colleague emailed me:

 Knowledge is now available through a keyboard and touchscreen and increasingly important works are available online. I was delighted to find Fuster’s “Prefrontal Cortex” and Hubel’s  “Eye, Brain, and Vision” available for free download. The basis skill for writing is therefore keyboarding, not pencil printing. And mathematical comprehension is derived from language not perception, so the best way to learn number is by playing with the symbol system on a calculator first. Remember: language is a set of arbitrary symbols with which children come to school equipped. When will politicians and academics understand that all improvement is technology-based? At present all appear to be in denial.

There is certainly a debate to be had about the importance of early writing skills in a technological age where two –year olds won’t retire from the labour market until the 2080s if present trends continue. By then, pens might be restricted to use in calligraphy as an art form.  I might have been more impressed if Mr Hunt had suggested the use of turtles and coding to make them run around the floor. But, he is a historian, so perhaps he is better at looking backwards than forwards.

Fine the feckless?

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There are reports in the media that Michael Gove wants to deduct fines imposed on parents of those pupils not attending school from child benefits. This policy was suggested earlier in the coalition by a Conservative adviser, but blocked by the Liberal Democrats. Presumably, this revival of the idea could be designed to prevent UKIP announcing it as a policy ahead of the Conservatives.

As a headline it no doubt resonates with groups that feel you shouldn’t get something for nothing, and part of the contract in receiving state benefits is that you play your part; in this case ensuring your offspring go to school regularly. From the opposite perspective it looks like punishing the child by reducing family income, often already low in real terms, because of the actions of the parents. The sins of the fathers or in this case possibly even the mothers, being transferred to the next generation.

None of this is to underestimate the problem of children missing education, and the part parents play in conniving in their absence from school, but to seek to discover how best to deal with the issue.

I have never liked the idea of schools being able to fine parents. Recent governments have taken the idea that fines can be administered by public bodies without recourse to the judicial system to absurd lengths. This means that, unlike in court, those imposing the fines have neither the whole picture nor the means to compel someone to attend to discuss their means. As a result, fines are a very blunt instrument, and this often resorts in them eventually being written off unpaid. If fines are the solution they need to be imposed by a court with oversight of all State imposed penalties: as a form of punishment a community sentence to some form of parenting programme might well be a better alternative, especially if imposed early in a child’s record of unapproved absence. Personally, I think returning Magistrates’ Courts to local areas so that they can act quickly and decisively with the ability to understand the whole picture might be better than allowing head teachers to cut child benefit.

On the other hand, schools do need to consider how, especially in the early years, they can tackle those children that fall behind in their learning through absence. I am sure that the best schools do this as a matter of course, but some research into outcomes at the 20 or some primary schools with the worst attendance records might pay some interesting dividends. It would be an easy win to ask these schools that the DfE has already identified whether they are using their Pupil Premium to help these children?

Where the welfare of the child is in danger a local authority has the extreme option of directly intervening in the parenting of a child. Perhaps the Secretary of State should start by asking his colleagues in the Children’s Services part of his Department what they would recommend before targeting benefit cuts as the headline solution. Liberal Democrats were correct to block this policy last time it was mooted, and although they cannot stop Mr Gove campaigning to put it in the Tory manifesto for 2015, I hope that they will make clear their opposition to it by a definitive statement to that effect from their education minister, David Laws.

Knife crime: do we need mandatory sentences?

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There was a debate on the Today programme this morning about mandatory prison sentences for possession of a bladed instrument – to use the formal legal terminology – carrying a knife to you and me. A mother whose son had been killed while attending a party as a teenager was advocating not just prison for using a knife, but even for just carrying one; presumably as a means of deterring young people from so doing. Simon Hughes as the Minister had a difficult job talking about a policy on mandatory sentences advocated by one of his ministerial colleagues that his party leader has publically disagreed with.

As regular readers of this blog will know, I have a personal interest in knife crime for reasons I don’t need to discuss again in this post. However, as I have written in a piece for the Church Times, by coincidence published today, I am opposed to mandatory  prison sentences for carrying a knife or other bladed instrument. Unlike the mother interviewed on the Today programme, who dismissed the courts out of hand, I have more faith in the judiciary and the guidelines set down by the Sentencing Body and the higher courts, including the Supreme Court.

As well as being a victim of a knife crime, I also served for 20 years within the justice system, so I have considered this issue in my mind several times over the past few years. Draconian laws will have some effect. However, fishing is the most popular participation activity for men in this country, and it usually involves carrying a knife. Going on a summer picnic may involve carrying a knife to cut the cheese with or even the bread. Automatic prison sentences for carrying knives in these situations? There would presumably need to be the exception for those carrying on their trade, carpet fitters, chefs, and no doubt those that work in many other occupations and carry knives from place to place. So, perhaps we should just consider banning the carrying of knives by those under the age of eighteen, as we do with the sale of alcohol or cigarettes; and punish both the seller and the purchaser with prison? It would have an effect, but since even some in custody seem adept at creating bladed instruments from what is on hand in prison, it seems that where there is a will there is a way.

Perhaps not surprisingly, I prefer a different approach based upon education and earlier intervention. The Museum of Childhood ran an interesting exhibition on the subject of knife crime some time ago and their very readable booklet can be found at:  http://www.museumofchildhood.org.uk/__documents/teen_knife_crime_booklet.pdf (link no longer active – September 2018) What is clear is that social media and the internet have allowed those opposed to knife crime the opportunity to spread their messages as much as those that want punitive action.

I don’t condone violence whether with a knife, gun or a fist, but dealing with those with anti-social attitudes just by locking them up doesn’t completely solve the problem.  Compared with a decade ago, knife crime, and many other crimes, seems on a downward trend. I remain to be convinced that harsher sentences will assist in reducing knife crime still further in society.

Condolences

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The news of the stabbing to death of a teacher in Leeds is both truly shocking and saddening at the same time. Fortunately, such deaths in schools are rare in the United Kingdom, and it is no small irony that this fatality happened in a Roman Catholic school in a challenging area just as the death nearly 20 years ago of head teacher Philip Lawrence did in north Westminster. We may live in a post-Christian society, but the Churches still offer education in many of the more disadvantaged areas of our country.

My thoughts and condolences are with the family and friends of the teacher, as well as the pupils and those that work at the school, and the wider local community. Nearly 40 years ago, I was the victim of a classroom stabbing by an intruder that could in different circumstances have ended in a fatality. As a result, I can understand something of the grief such an unexpected event give rise to. Fortunately, unlike in my day, there will no doubt be extensive counselling offered to all concerned. I don’t know the circumstances of this stabbing, except that the news bulletin says that it was a female teacher in her 60s who presumably had been at the school for some time. More will no doubt come out over the next few days and then at the subsequent trial.

The Court of Appeal has recently taken a tough stand on the carrying of knives, and rightly so if we are to reduce the incidence of violence still further in society. But, despite all the draconian laws it is impossible to entirely prevent attacks where there is a will to do violence to another.

Finally, perhaps the Secretary of State might consider a memorial in the new offices for the DfE after they move to Whitehall in 2017 that recognises the sacrifice of the small band of teachers that have given their lives to their profession. There may not be many of them, but they deserve not to be forgotten.