Guidance to LEAs on the use of PACE
in prosecutions for irregular school attendance
What is PACE?
The Police and Criminal Evidence Act 1984 (PACE) sets out the principles of fairness, openness and workability in the investigation of crime. The PACE Codes of Practice explain how the principles should be interpreted in practice.
The Codes are largely for use by police and police staff. However, under section 67(9) of the Act, other professionals who are charged with the duty of investigating offences or charging offenders must have regard to any relevant provision of a code issued under the Act.
This includes Education Welfare Officers and other LEA officials involved in investigatingand prosecuting parents under s 444 of the Education Act 1996.
In the case of irregular school attendance, the codes which EWOs and LEA staff need to be aware of are Code C in relation to the interviewing of suspects and Code E on the recording of interviews with suspects. Both set out the safeguards and protections which should be in place in order to ensure that information gathered can be used in evidence.
The purpose of Code C is to ensure that interviews are carried out fairly. The parent should:
- understand the basis of the interview
- be made aware of his or her rights (to silence and legal representation)
- have access to legal advice, interpreters and appropriate adults (e.g. where the parent has mental health problems) as appropriate.
The interview should also be recorded either on tape or by written note.
Code E sets out the procedures to be followed in the tape recording of interviews and the handling and security of tapes.
Why do LEAs need to use it?
In carrying out their duties in investigating and prosecuting parents for the non-attendance of their children, LEAs will fall within PACE whenever they interview a parent about the non-attendance of their child with a view to obtaining evidence for a prosecution.
Admissibility of Evidence
If an LEA does not comply with the relevant provisions of the PACE Codes of Practice, evidence which is obtained by the LEA in an interview may be inadmissible at court. This can put the entire prosecution at risk.
Inferences which may be drawn by the court
More positively, following PACE may also assist the LEA in undermining the parent’s case. The effect of the caution is that if the parent raises matters in their defence later in the proceedings of which they made no mention at the interview, the LEA can invite the court to draw an inference on the failure to reveal this earlier in the proceedings i.e. calling the truth of the matter raised into question or according it less weight. In court, a parent may, for example cite bullying as a reason for the non-attendance, without having mentioned this before. While this is not a defence to the offences under section 444, it is a factor which the court may take into account in reaching its decision as to sentence and it may well influence the court in its handling of the case.
Good practice
Following the relevant provisions of PACE is also good practice in ensuring that investigations and prosecutions are carried out fairly.
When should LEAs use PACE?
There are 2 offences for non-attendance under the 1996 Act - s444 (1) and s444 (1A).
Under s 444(1), the LEA need only show that the child failed to attend regularly at the school without authorisation. The only evidence which the LEA needs to produce to the court in this instance is the certificate of attendance. It is not necessary to obtain evidence through interview with the parent or to use such evidence at court. The LEA need not, therefore follow the Codes of Practice when prosecuting under s 444(1). Nor, for the same reason, need LEAs follow the codes in issuing a fixed penalty notice. However, as a matter of good practice, LEAs should act in accordance with the spirit of the codes in carrying out any interviews, in particular in relation to ensuring that the parent’s needs are taken into account.
Under s 444(1A), the LEA must show not only that the child failed to attend regularly at school without authorisation but that the parent knew and failed without reasonable justification to cause the child to do so. If prosecuting under this section, the LEA may well conduct interviews with the parent to ascertain the extent of their knowledge of the non-attendance and whether they have a reasonable justification. Failure to follow the PACE codes in any such interview may seriously jeopardise a prosecution if the interview produces evidence on which the LEA wishes to rely.
What do LEAs have to do to make sure they are complying?
Code C – What you need to know
Basis of Interview
Before asking any questions relating to the potential prosecution, the EWO should explain to the parent the basis on which the interview is being conducted i.e. that the LEA is considering prosecuting the parent under s 444 (1A) Education Act 1996. They should explain what the offence is and check that the parent understands what has been said.
Right to leave and right to legal representation
The parent should also be made aware that they are not being held under arrest and are free to go at any time. They should also be informed of their right to independent legal representation and advice at the interview if they so wish. Legal Aid may be available for such representation in some instances – the solicitor should be able to advise - DN: the position on access to legal aid will need to cleared with the Legal Services Commission (formerly the Legal Aid Board) John Sirodcar, Head of Duty Solicitor Scheme, 0207 759 0548.
Caution
The Education Welfare Officer or LEA official conducting the interview should also caution the parent as follows:
You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
The Education Welfare Officer should satisfy himself or herself that the parent understands the effect of the caution. If there is any break in the interview, the parent must be reminded that they are still under caution. This would also apply if for example the caution is included in a letter inviting the parent to the meeting.
Interpreter
If a parent has difficulty in understanding English and wishes to have an interpreter, LEAs should arrange for a suitable interpreter to be present at the interview.
Appropriate Adult
In some cases, there may be concerns over the parent’s mental health. If the LEA believes that the parent is suffering from a mental disorder or is otherwise mentally vulnerable, the caution should be given and the interview conducted in the presence of an appropriate adult. This may be the adult who is normally responsible for their care, a mental health worker or social worker experienced in dealing with mentally vulnerable people or another responsible adult, but must not be someone employed in the same department as the interviewing officer by the LEA.
An interview should not be carried out if:
- the parent is mentally vulnerable and there is no appropriate adult available
- the parent is under the influence of alcohol or drugs
- the parent is suffering from illness, ailment or other condition which may impair their ability to understand and answer the questions put to them in interview.
Record of the interview
An accurate record must be made of each interview stating the place, time at which it begins and ends and (if different) the time the record is made.
If possible, the interview should be tape recorded (see guidance on code E below). However, this will often not be possible for LEAs. In most attendance cases interviews between the LEA officer and the parent will be recorded through a written note.
If this is the case, as precise a note as possible should be taken (preferably verbatim) during the interview and the parent should be given the opportunity to read the note and to sign it to verify that it is correct or to indicate which areas he or she considers it to be inaccurate. This requires the presence, whenever possible, of a second LEA officer to take the note.
If an interpreter is present, he or she should make a contemporaneous note of the interview in the language of the person being interviewed. Sufficient time should be allowed for the interpreter to make a note of each question and answer after each has been put or given and interpreted.
Code E – What you need to know
LEAs often will not have recording equipment to tape record interviews with parents. If they do not have access to the equipment or a tape recorded interview is impractical, LEAs should simply ensure that an accurate written note is made of the interview as set out above. However, if LEAs are able to tape record the interview, they should follow the guidelines set out below.
If an interview is recorded, it should be recorded openly and preferably on two tapes on a double cassette deck. The interviewer should state that the interview is being recorded. The tapes should be clean and unwrapped and loaded into the machine in the parent’s presence.
Once recording has started, the interviewer should
- state their name and position and the name and position of any other interviewer present
- ask the parent and any other party present to identify themselves for the tape
- state the date, time and place of the interview
- confirm that the parent will be given a notice about what will happen to the tapes
If the parent has impaired hearing, a written note of the interview should also be made.
If the parent objects to the interview being tape recorded, they should be asked to record their objections on the tape before it is switched off. If they will not record their objections, the interviewer should record what they understand these to be on the tape instead. A written note of the interview should then be made as set out above.
The taking of any break and reason for it should be recorded on the tape.
After any break, the parent should be reminded that they are still under caution or the caution should be given again.
At the end of the interview, the parent should be asked if they wish to clarify or add anything. The time should be recorded, the tape recorder switched off and one tape (the master tape) sealed with a label to be signed by the interviewer, parent and any third party (e.g. solicitor or appropriate adult). If there is a second tape, this can be used as a working copy.
The parent should then be handed a notice explaining how the tape recording will be used [e.g. as evidence in court], arrangements for access to the tape [e.g. by attending at LEA offices or requesting copy of the tape by post] and, if it is decided to proceed with the prosecution, a copy of the tape as soon as practicable. Copies should be made from the unsealed tape (the working copy). Where it is only possible to record on one tape, a copy may be taken from the sealed tape, but a record must be made of the time, date, place, persons present and actions taken when the seal was broken [e.g. “tape placed in tape recorder and played so that copy could be made”].
Other Codes and Legislation
Disclosure
Criminal Procedure and Investigations Act 1996
The Criminal Procedure and Investigations Act 1996 (CPIA) sets out certain obligations of disclosure
The Act is supported by a code of practice (The Stationery Office, 1997, ISBN 0-11-341163-4). The code of practice is primarily concerned with the recording and retention of material and evidence. EWOs and LEA staff investigating or prosecuting under s444 Education Act1996 should act in accordance with the CPIA and the relevant provisions of the CPIA code of practice.
What should you disclose?
The LEA must disclose to the parent any material on which it intends to rely in support of its caseand any material which might undermine its case or support the parent’s case. The stages and process of disclosing such material are set out below.
How does disclosure take place?
First of all the LEA should produce a summary of their case setting out the facts on which the LEA is relying.
If the parent puts in a not guilty plea, the LEA should produce a list of all the material which it has which supports or undermines the LEA’s case, setting out whether the material will be served on the parent (i.e. copies made and sent to him or her) or, if not, where it can be inspected. This is known as primary disclosure.
The parent (or his or her solicitors) may then serve a defence statement setting out the nature of the defence and any matters on which they take issue. The LEA should read the defence statement carefully and consider whether theyhave any material which it has not previously disclosed (“unused prosecution material”) and which might reasonably be expected to assist thedefence the parent has put forward in the defence statement . Any such material must be disclosed. This is known as secondary disclosure.
The parent (or his or her solicitors) may also make requests for specific disclosure e.g. of the school records. Such requests should be dealt with promptly. However, the LEA or EWO should be alert to speculative requests. Material should only be disclosed if it is directly relevant to the case i.e. if it will support or undermine either the LEA’s case or the parent’s case.
Where the LEA refuses to disclose material requested (e.g. if it does not consider it is relevant to the case), the defence may apply under section 8 of the CPIA for disclosure to be ordered by the court. Similarly, the defence may apply to the court for material held by a third party to be disclosed. In such cases, , the defence must satisfy the court under the Criminal Procedure (Attendance of Witnesses) Act 1965 that the material is likely to be relevant evidence.
Documents which may be relevant to sentence e.g. information which might mitigate the seriousness of the offence should also be disclosed.
Attorney General’s Guidelines on Disclosure
Education Welfare Officers and LEA Staff involved in prosecutions for school non-attendance should also act in accordance with the Attorney General’s Guidance on Disclosure issued in 2000.
Code for Crown Prosecutors
Education Welfare Officers and LEA staff involved in prosecutions for irregular school attendance should also act in line with the Code for Crown Prosecutors. Copies of the Code are available from the CPS website
Key points to be aware of are:
Duty to be fair, independent and objective, not letting any personal views about ethnic or national origin, sex, religious beliefs, political views or the sexual orientation influence decisions and not being affected by improper or undue pressure from any source.
Obligation to act in the interests of justice and not solely for the purpose of obtaining a conviction.
Duty to review, advise on and prosecute cases, ensuring that the law is properly applied, that all relevant evidence is put before the court and that obligations of disclosure are complied with.
Duty to act in accordance with the Human Rights Act 1998.
Application of the evidential test – is the evidence sufficient?
Application of the public interest test – is it in the public interest to proceed with a prosecution?