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Sullivan, G R --- "Parents and their truanting children: an English lesson in liability without responsibility" [2010] OtaLawRw 4; (2010) 12 Otago Law Review 285

Last Updated: 25 February 2012

Parents and Their Truanting Children: an English Lesson in Liability Without Responsibility

G R Sullivan*

In England and Wales, as in the rest of the developed world, it is compulsory for children to attend school regularly during a large part of their childhood and adolescence. It will be taken for granted that compulsory education is a good thing and that any liberal, democratic state when making school non-optional for children and their parents is acting legitimately and with due concern for human rights. To be sure, some parents, perhaps influenced by the views of such “deschooling” radicals as Ivan Illich¹ and Paul Goodman,² may contest the right of the state to insist on school attendance. How a state should accommodate to such conscientious objectors is a matter beyond our present concerns. We may note in passing that in the United Kingdom and New Zealand it is legally possible for parents to arrange home schooling for their children.³ Our concern is with parents who have no principled objection to school attendance on the part of their children. These parents will range from persons committed without reservation to the attendance of their children at school and who do everything within their own resources to ensure school attendance to parents who are utterly indifferent or even approving of their children’s non-attending behaviour. What all these parents have in common is that their children are of compulsory school age and they are not attending school regularly for reasons which do not exempt from attendance under the statutory regimes applicable respectively to England/Wales and New Zealand.

As we will examine directly, in England and Wales all the parents along our spectrum can commit a criminal offence simply on the basis of the irregular attendance of their children. Liability is predicated on the failure of the child to attend without any requirement for a related act or omission on the part of the parent. Of course, if a programme of

* Robert Sullivan, Professor of Law, Faculty of Laws, University College

^London.

^{1 I Illich Deschooling Society (Pelican Books, London, 1976).}

^{2 P Goodman Growing Up Absurd: Problems of Youth in the Organised Society}

^{(Random House, New York, 1960).}

^{3 Under s 7 of the Education Act 1996 (chapter 56, England and Wales)}

^{parents are obliged to provide “efficient full-time education” for their}

^{school age children, “by regular attendance at school or otherwise”}

^{(emphasis added). Effectively this has been taken to legitimise home}

^{education provided the local education authority is satisfied that the}

^{national curriculum is being followed. Under s 20 the Education Act}

^{1989 No 80 (New Zealand) persons between the ages of 6-16 must attend}

^{school but the parent of a person of compulsory school age may apply}

^{under s 21 on behalf of that person to the Secretary for Education for a}

^{long term exemption from attendance. An exemption will follow if the}

^{Secretary of State is satisfied that the person, “will be taught at least as}

^{regularly and well as in a registered school”.}

non-optional schooling is to mean what is says, resort to compulsion may be necessary in the event of regular non-attendance. And we will allow that the means of compulsion may include resort to the criminal law. Ill advisedly perhaps, we will further concede that the liability may be imposed on a strict basis. What will not be conceded is what, after Antony Duff, we will call the responsibility condition. In the briefest of terms (we will address the responsibility condition more expansively later) the basic predicate for all forms of criminal liability must be a state of responsibility on the part of D for the actus reus of the offence, an actus reus which may take the form of some act or omission or state of affairs. As Antony Duff cogently argues, responsibility for the actus reus is a necessary condition of criminal liability predicated on the actus reus.⁴

As will be seen, in England and Wales parents may be held liable for the truanting offence even in circumstances where any responsibility for the occurrence of the actus reus of the offence is lacking, even in a most basic sense because the truanting behaviour is beyond their control and would be beyond the control of any parent, however responsible and concerned. Because of similarities in the drafting of the New Zealand truanting offence, the same “liability without responsibility” convictions would be possible under its terms, if read in the same rigidly literal way prevailing for the equivalent offence in England and Wales. However, as will be examined, there is good reason to think that what we may call the responsibility condition will be observed in interpretations of the New Zealand truanting offence.

What may occur in convictions for the English truanting offence is criminal liability which is not merely harsh in being impervious to the absence of any culpability. Additionally, there is criminal liability which is amiss in an even more fundamental sense. It is liability which lacks any predicate. When properly analysed the truanting cases can involve liability that cannot be explained within the conventional terms of the criminal law. We encounter, to use Mark Dubber ’s useful term, deployment of the police power of the state, rather than the criminal law as properly understood and administered.⁵ Alas the truanting offence is just one example from the jurisdiction of England and Wales exemplifying imposition of the police power in the guise of a conviction for a criminal offence.⁶ But the examination of the truanting offence alone is sufficient

⁴ RA Duff Answering for Crime: Responsibility and Liability in the Criminal

^{Law (Hart Publishing, Oxford, 2007) chapters 1-3.}

^{5 M Dubber The Police Power: Patriarchy and the Foundations Of American}

^{Government (Columbia University Press, New York, 2005). The phrase,}

^{“the police power”, is appropriated in this article as a term to cover}

^{exercises of official coercion which employ the language, personnel and}

^{infrastructure of the criminal law including conviction for an offence}

^{and associated punishment in circumstances where one or more of the}

^{minimum, conceptual requirements for criminal liability is not present.}

^{6 Perhaps the most notorious example remains the decision of the Divisional}

^{Court in R v Larsonneur (1933) 24 Cr App R 74 although there is strong}

^{competition. See further n 40 and associated text.}

to give a salutary lesson in how not to do criminal law, a warning lesson with echoes beyond England and Wales.

1. Parental Criminal Responsibility for Truancy in England and

^Wales

Parental criminal responsibility for truancy in England and Wales⁷ is imposed under the terms of s 444(1) of the Education Act 1996 which provides:

If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

It will be useful at this stage to reference the counterpart New Zealand offence. For now we need merely note its terms before turning to the way that the English offence has been interpreted. But referencing alone will be enough to show that New Zealand courts could travel the English route in the interpretation of their own offence, were they so minded, however unlikely that might be. Section 29 of the Education Act 1989 provides:

(1) Every parent of a person who –

(a) While enrolled at a registered school, does not attend as provided in s 25 of this Act; or

(b) While enrolled at a correspondence school, does not do the work of the course in which the student is enrolled, -

commits an offence... .

Focusing for now on the English offence and its interpretation, the most striking feature of s 444(1) is its simplicity. Only one thing seems to matter: was the child failing to attend regularly? To be sure, the child must be registered at the identified school, be of compulsory school age and be a child of the defendant (D). But unless some administrative error has been made, these requirements are pro forma. The force of the word “regularly” might be a matter of dispute in a jump the gun prosecution. But if the child has a truanting record of any consequence that element of the offence will be easily established. This reference to irregular attendance as an element of the offence might strike D as a little hollow. The trigger for liability is, of course, not the conduct of D but the child’s own failure to attend school with sufficient regularity. And that is all that is necessary. It is not to the point that D was utterly blameless in the matter of her child’s irregular attendance.

Before we turn to an exposition and critique of the leading cases, some context is needed. Though blameless parents are convicted, some recurring situations which will eliminate or attenuate the culpability

⁷ The offence is confined to England and Wales which is a single criminal law jurisdiction. Scotland and Northern Ireland each have their own system of criminal law and their own separate educational systems.

of D are catered for. A s 444(1) offence will not be committed if the lack of attendance is due to sickness, any unavoidable cause, religious observance or if the school is beyond walking distance and transport has not been provided by the local authority.⁸ Furthermore, although a significant fine may follow conviction and imprisonment may be imposed in the event of non-payment of the fine, the offence is non custodial.⁹ Prior to any prosecution by the local education authority (only an LEA can prosecute the offence) there is likely to be engagement and negotiation between the LEA and D.¹⁰ So within the class of persons prosecuted under s 444 (1) there will be many parents who are culpably indifferent or worse to the educational needs of their children.¹¹ But such is the volume of prosecutions for this offence – over 9,000 per year from 1997–2009¹²

–blameless parents do find themselves in court. In the leading case, Barnfather v London Borough of Islington and Secretary of State for Education and Skills,¹³ Mr Justice Elias recognised this reality. As he observed, “it must be recognised that liability [on the factual assumptions made for the appeal] is being imposed for failing to achieve a result [attendance at school] which simply cannot be secured.”¹⁴ He further acknowledged that the injustice of a conviction in such circumstances cannot be deflected by a nominal penalty or even an absolute discharge: “...in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one’s children or incompetence at parenting, which in the case of a blameless parent will be unwarranted”.¹⁵

Some English truanting cases

How can it be that courts find themselves in a position where they

^{feel obliged to convict blameless parents even though the conviction}

⁸ Section 444 (3), (4).

^{9 The maximum fine is £1000 sterling.}

^{10 For a detailed account of the enforcement context of the English truanting}

^{offence with comparisons with other jurisdictions see Jeremy Horder}

^{“Whose Values Should Determine When Liability is Strict” in AP Simester}

^{(ed) Appraising Strict Liability (OUP, Oxford, 2005) at 105, 110-120.}

^{11 Such parents may be prosecuted for an aggravated version of the truanting}

^{offence punishable with a maximum fine of £2,500 or three months}

^{imprisonment or both: [s 441 (1A)] inserted by s 72(1) of the Criminal}

^{Justice Act 2000. For this offence in addition to the child’s failure to}

^{attend regularly, D must know of the non-attendance of her child and}

^{must fail without reasonable justification to cause her child to attend. One}

^{unfortunate consequence of this aggravated truanting offence has been}

^{to fortify the interpretation that the basic offence is an offence of absolute}

^liability.

^{12 See Horder, above n 10, at 110, n 27. The rate of prosecution has remained}

^{approximately the same since the publication of Horder ’s article; see}

^{Jessica Shepherd “Truancy at record high with 10m days missed last}

^{year” The Guardian, 26 March 2010.}

^{13 [2003] EWHC 418 (Admin).}

^{14 Ibid, at [50].}

^{15 Ibid, at [57].}

denigrates the parents in their role as parents? An answer that would be given by many judges is that the responsibility lies with the legislature rather than themselves. As is well known, a cornerstone of the unwritten United Kingdom constitution is parliamentary sovereignty.¹⁶ In its most un-nuanced form, the judicial acceptance of the supremacy of parliament implies a willingness to interpret to the letter any clearly expressed legislative provision wherever that may lead, short of absurdity.¹⁷ Any limiting gloss on a clearly expressed provision is taken to be a denial of the will of parliament. Remarkably, this interpretive rigidity has been particularly prevalent in the criminal law. The parental truanting offence is but one example of this literalist approach, an approach which has frequently prevailed despite the harshness of the verdicts reached.¹⁸

The parental truanting offence is highly vulnerable to this interpretive tradition. Section 444(1) of the Education Act 1996 offers a flat description of a state of affairs. There is no reference to a mental element. As mentioned previously, some situations which would eliminate or greatly reduce any culpability of a parent for her child’s truanting are specifically dealt with in sub clauses of s 444. There is nothing in the offence creating clause suggestive of any additional latitude in the imposition of parental liability for their truanting children. Congruent with this rigid approach to statutory interpretation, any justificatory or excusing factor outside those explicitly referred to will not provide a bar to a conviction, however strongly the factor is present. So the fact that the child was the only carer for the chronically invalided D did not count as the relevant provision explicitly dealt only with the illness of

¹⁶ An important inroad was made into parliamentary sovereignty by the European Communities Act 1972 with regard to European Union legislation with direct effect. Of relevance too is the Human Rights Act

1998 which, as from October 2001, made the European Convention for Human Rights a source of law for all nations of the United Kingdom. In formal terms parliamentary sovereignty is unaffected by the 1998 Act but courts are required by s 3 to interpret legislation, “so far as is possible... in a way which is compatible with Convention Rights”. Arguably in some cases courts have used s 3 to override rather than interpret primary legislation, a topic that cannot be entered here.

^{17 R v Allen [1872] LR 1 CCR 367.}

^{18 This literalist or “ordinary meaning” approach to the interpretation of}

^{criminal statutes is but one of a number of approaches judicially employed}

^{in England and Wales. Risking a generalisation, the interpretation of}

^{criminal statutes is more or less integrated into the corpus of statutory}

^{interpretation and what is known as the purposive approach applies}

^{in criminal law as in other branches of law as the default interpretive}

^{approach. The distinctively criminal law principle of strict construction}

^{can still be invoked from time to time but the law reports are full of}

^{examples of interpretive ambiguities in criminal cases which are resolved}

^{against the interests of D in the light of some overarching statutory}

^{purpose: see further AP Simester and GR Sullivan Criminal Law: theory}

^{and doctrine (3rd ed, Hart Publishing, Oxford, 2007) at 45-51.}

the child.¹⁹ Equally irrelevant was the fact that D’s daughter had left home to live with her boy friend without leaving a forwarding address, despite the best efforts of D to keep her daughter at home, as no provision was made for such circumstances.²⁰ In the same vein, the fact that D was judicially acknowledged to be a competent and caring parent who found out about the truanting behaviour after the fact did not avail.²¹ One could go on in this fashion with other harsh examples drawn from this lamentable jurisprudence. But the point has been made, even laboured; all that matters is that the child is not in regular attendance at school and the circumstances explaining the non-attendance do not fall within an explicit statutory exemption.

The legitimacy of convictions of blameless parents was at the heart of Barnfather, the leading case. The appeal proceeded on the basis that D had been blameless in relation to her child’s truanting behaviour; the actual facts of the matter were not contested before the Divisional Court.²² Previous authority imposing absolute liability on blameless parents was unanimously ruled to be sound within the terms of English law. The issue to be determined was whether this implacable approach to parental liability could withstand the incorporation of the European Convention for Human Rights into English law. The appellant chose just one line of attack, namely the guarantee of the presumption of innocence afforded by Article 6(2) of the Convention.²³ The appellant contended that the refusal at the liability determining stage of the trial to consider the culpability of D was substantively to override considerations relating to D’s innocence and hence a breach of Article 6(2). The Divisional Court’s response was that the appellant had misunderstood the nature of the protection afforded by the presumption of innocence. The presumption did not engage with the content of the substantive law. The presumption required the prosecution to prove the definitional elements of the offence. It had no purchase on what it was that the prosecution was required to prove.²⁴

That interpretation of Article 6(2) determined the outcome of the appeal and thereby confirmed the continuing validity of the absolutist interpretation of s 444(1) of the Education Act 1996. The two judges

¹⁹ Jenkins v Howells [1949] 2 KB 218.

^{20 Bath and North East Somerset Council v Warman [1999] ELR 81.}

^{21 Crump v Gilmore (1969) 68 LGR 56.}

^{22 Above n 13. The defendant Alison Barnfather, a mother of four children,}

^{stoutly maintained that she had done everything in her power to ensure}

^{the attendance of her one truanting child: BBC News, 31 January 2003.}

^{23 For the view that additional arguments were open to D see G R Sullivan}

^{“Conduct and Proof of Conduct: two fundamental conditions for the}

^{imposition of criminal liability” in KH Kaikobad and M Bohlander}

^{(eds) International Law and Power: perspectives on legal order and Justice}

^{(Koninklikje Brill NV, Netherlands, 2009) at 235, 242-244.}

^{24 For an extended defence of this formal reading of the presumption of}

^{innocence see Paul Roberts “Strict Liability: an expose of functionalist}

^{assumptions” in AP Simester, above n 10, at 151.}

hearing the case differed in their reactions to this outcome. Mr Justice Elias was concerned by the prospect of perpetuating the conviction of blameless parents. Had he been persuaded that Article 6(2) was engaged, he would have found a breach of its terms because he considered the conviction of blameless parents a disproportionate response to the problem of truancy.²⁵ Mr Justice Kay was considerably more relaxed. He took a favourable view of the Government’s programme to co-ordinate the interventions of Local Education Authorities regarding truancy. He noted approvingly the policy of LEA engagement with the parents of truanting children, a process initiated by informal meetings, then progressing in many cases to voluntary parental “contracts”, further escalating, if required, to the making of educational supervision orders. The bringing of a prosecution by the LEA for the truanting offence was a last resort.²⁶ He accepted the evidence of a senior educational civil servant of the deterrent and efficiency value of an absolute liability offence when all else had failed.²⁷ Parents faced with the certainty of conviction were more likely to engage with the LEA, decreasing the number of prosecutions actually brought. Mr Justice Kay acknowledged that convictions of blameless parents could still occur but were likely to be rare. If Article 6(2) had been engaged, he considered that the truanting offence was a reasonable and proportionate response to a significant social problem and because of that no breach of the presumption of innocence guaranteed by Article 6(2).²⁸

The continuing vulnerability of blameless parents to conviction on the

^{sole basis of the behaviour of their children is vividly exemplified by}

²⁵ [2003] EWHC 418 (Admin) at [57].

^{26 Ibid, at [26-32].}

^{27 The witness statement of a senior civil servant Sheila Scales contained the}

^{following passage: “The offence is simple and relatively easy to prove.}

^{There is no liability if the child has leave to be away from school or is}

^{prevented from attending by illness or any unavoidable cause and there}

^{is a defence if the child does not live within walking distance... .This}

^{straightforward, easily provable offence...is considered to be a useful tool}

^{within the local education authority armoury to assist them in making}

^{parents face up to and discharge their responsibilities...” at [29].}

^{28 [2003] EWHC 418 (Admin) at [32]. Under the English jurisprudence}

^{on Article 6(2) what are plainly derogations from the presumption of}

^{innocence can be justified in the light of the seriousness of the criminal}

^{wrong, the public interest in its suppression and the ease of proof for the}

^{respective parties in the matter to be proved or refuted. If the prosecution}

^{wins out in this balancing exercise there is said to be no breach of Article}

^{6(2) or, in other words, no violation of the presumption of innocence. That}

^{seems plainly at odds with what has been decided in such cases, namely}

^{that the presumption of innocence is derogated from in the interests}

^{of efficiency. The presumption of innocence jurisprudence is complex}

^{and contentious: see I Dennis “Reverse Onuses and the Presumption}

^{of Innocence: In Search of Principle” [2005] Criminal Law Review 901;}

^{R Harmer “The Presumption of Innocence and Reverse Burdens: A}

^{Balancing Act” (2007) 66 Cambridge Law Journal 142.}

the post Barnfather case of New Forest local Education v E.²⁹ The Divisional Court accepted that D had fully cooperated with her LEA and was not at fault for the irregular school attendance of her drug taking and drug dealing, 15 year old son. Her supervision of her son was inhibited by her fear that he would be seriously violent to her and her daughter. The Court ruled that even if she reasonably feared death or serious violence for her daughter and herself at his hands, that would not avail. The Court confirmed that s 444 (1) of the Education Act 1996 looked solely to the truanting of the child. It followed, according to the Divisional Court, that the defence of duress did not apply.³⁰

2. Criminal Guilt: the irreducible requirements

The different responses of Kay and Elias JJ to the conviction of the blameless parents reflect a perennial division about acceptable means to agreed ends. Mr Justice Kay stands clearly in the unmediated, utilitarian tradition. For him, the possibility of the rare conviction of blameless parents should not militate against the adoption of a truanting policy pursued by a combination of administrative and legal interventions which, judged in the round, will involve less prosecutions and less truanting. But Elias J recoils against this trade-off between injustice to individuals and overall benefit to society as a whole. He is sensitive to matters of fairness to individuals, particularly damage to reputation. But essentially his response begins and ends with regret. Within the terms of English law, he takes as read the line of authority that interprets the truanting offence in the most literal of terms. There is no referencing whatever of Anglophone authority which reads down statutory provisions however explicit to comport with the fundamental requirements of criminal liability.³¹ And he finds no way of escape from the English authorities by way of the European Convention for Human Rights. In substance, he is at one with Kay J.

This is unfortunate. The reluctance of Elias J to accept tradeoffs between individual injustice and societal benefits is well founded. The specific injustices occur in reality; the supposed benefits accruing are too often a matter of conjecture.³² The form of intransigent strict liability judicially

²⁹ [2007] EWHC 284 (Admin).

^{30 If the Divisional Court’s conclusion on duress is taken in its own terms}

^{it underscores that the truanting offence is truly a defence of absolute}

^{liability as it is well established that the defence of duress is an available}

^{defence for crimes of strict liability as in Willer (1986) 83 Cr App R 225}

^{and Martin [1988] EWCA Crim 2; (1989) 1 All ER 652.}

^{31 Prominent examples from Anglophone jurisprudence of refusing to hold D}

^{liability for matters beyond his control in the face of provisions which on}

^{their face imposed liability in such circumstances would include Robinson}

^{v California [1962] USSC 130; (1962) 370 US 660; Martin v State of Alabama (1944) 17 So 2d,}

^{427; R v City of Sault Ste Marie (1978) 85 DLR (3d) 161; Civil Aviation Dept}

^{v MacKenzie [1983] NZLR 78 (CA).}

^{32 One thing that is known is that as of December 2009 the prosecution rate}

^{of parents and the truancy rates for children are each at all time high.}

devised for England and Wales – absolute liability would be a better term – is by no means universal, even in Anglophone jurisdictions. Had the judges been so minded, a liability regime for the truanting offence could have been resolved involving a compromise between fairness and efficiency by requiring proof that D’s conduct in respect of the truancy of her child fell below what could reasonably be expected of a responsible parent. Suggestions for an ordinary civil negligence standard to mitigate strict liability offences in England and Wales have often been put, either focused on strict liability in general or in relation to specific, strict offences, but to no effect. Essentially, a binary system prevails in England and Wales: in the absence of clear legislative guidance, offences are interpreted as crimes requiring proof of full mens rea or are taken not to require proof of any form of fault.³³ No amount of hand wringing, or wishing things were different, seems set to change this.

Criminal Liability: identifying the minimum requirements

It will not be argued here that personal culpability is a conceptual requirement of criminal liability. Any insistence that culpability must be a constituent of criminal liability is essentially to stake out a normative position.³⁴ Yet a non-normative line of attack can be made on the kind of absolute liability to be found in the truanting offence (and against other similar offences too). The argument will be made that in the case of a parent who blamelessly cannot influence the voluntary conduct of a third party (the child who of her own volition is failing to attend school) the imposition of criminal liability is not merely unduly harsh, it is incoherent. Or, to put the same point differently, a conceptual explication of the grounds for the conviction cannot be made within the conventions of the criminal law. If this non-normative critique can be sustained, its adoption could preclude the imposition of some criminal convictions. But it is important not to over sell the implications of this critique. In an ideal world, English law might one day absorb and practice the normative proposition that blamelessness with respect to 0 is incompatible with a criminal conviction for 0. If that day should ever come, the conceptual argument to be made here would no longer need to be made as a way for improving the condition of the law. The kind of conceptual mistakes

Since the beginning of ‘New’ Labour government in 1997 there has been a concerted effort by central government to co-ordinate local responses to school truancy including a tough line on parents with a prosecution rate for the truancy offence of over 9,000 per year (9,500 in 2008/9). Figures released by the Department by the Department of Children, Schools and Families on March 25, 2010 show that truancy rates have increased by 44 per cent since 1997. In 2008/9 primary and secondary pupils missed 1.01 per cent of school half-days. For 1996/7 the figure was 0.73 per cent.

^{33 Jeremy Horder “Strict liability, Statutory Construction and the Spirit of}

^{Liberty” (2002) 118 Law Quarterly Review 458.}

^{34 For a sustained attempt to establish that personal culpability is a}

^{definitional requirement of criminal liability see Peter Brett, An Inquiry}

^{into Criminal Guilt (Law Book Company of Australasia, Sydney, 1963).}

^{And see Duff, above n 4, at chapter 4.}

about to be exposed could no longer be made because of that normative barrier. Unfortunately, there remains a logical space for the conceptual argument of the kind to be made. And the argument is of some practical importance. The truanting offence is not an isolated example of an offence where convictions may be imposed for states of affairs which lay beyond the reach of D’s field of responsibility.³⁵

What are the minimum prerequisites for criminal liability on the part of D? The starting point must be some form of wrong, a wrong established by reference to some state of affairs which is sub-optimal from the perspective of the public morality and/or public policy of the jurisdiction in question.³⁶ “Wrong” is used here in a purely institutional sense. The legislature (or rulers) in a particular jurisdiction may make a profound moral mistake in making a certain state of affairs the foundation of a criminal offence. Bad regimes may do very bad things through the medium of valid criminal law. But if they wish to do such things by way of criminal law rather than mere coercion by employing the police power,³⁷ certain conceptual prerequisites constraining the form and nature of criminal liability must be respected.

This claim will be tested against a hypothetical criminal offence with a highly unjust content. Consider a country inhabited by two groups, self identified as separate on account of cultural and linguistic differences. Group X is the dominant group and controls the legislative process. It has divided the capital city into zones, and has made it a criminal offence for members of group Y to be physically present in specified localities unless they have written authorisation allowing their presence. As already conceded, proscriptions of this kind can form the content of valid criminal offences. So if D, a member of group Y, was by way of civil rights protest to enter a prohibited area with other Y group associates, it is accepted that D would commit a criminal offence. And the same would apply if D simply wandered into a prohibited zone unaware that he had done so. Of course, a well disposed legislature would not enact offences of this sort. Even a legislature minded to create such offences might temper its zeal by confining liability to persons who knowingly enter a prohibited zone. There are strong normative arguments for doing

³⁵ Notorious examples aside from the truanting offence drawn from the English jurisprudence of criminal liability imposed on D for matters beyond his or her control include are R v Larsonneur (1933) 24 Cr App R 74 and Winzar v Chief Constable for Kent (1983) The Times, 28 March, Divisional Court.

³⁶ The criminal law is part of governance. This does little to restrain the substantive content of the criminal law but does exclude offences which are enacted for no other reason but to give a pretext for coercion and punishment beyond any public policy purpose.

³⁷ It is not any part of the argument presented here that resort to what has been termed the police power falls outside the legal authority of the state. Rather the argument is that an exercise of the state’s competence to make and enforce its criminal law entails some conceptual strictures which courts should comply with interpreting criminal offences.

so even in the context of racist regimes.³⁸ But, sticking to the conceptual plane, harsh forms of strict liability are compatible with social ordering through the medium of criminal law and may be validly deployed even in the context of very unjust social orders.

Contrast those examples with a situation where D is currently present in a place where it is lawful for him to be. He has a political argument with two policemen. Although the argument becomes heated D is careful to restrain his language and give no pretext for an arrest. Suddenly he is picked up by the policemen and carried to what for him is a prohibited zone. He is then arrested for the offence of being present in a prohibited place and is subsequently convicted for that offence. His appeal is unsuccessful.³⁹ The appellate court notes the plain language of the offence which states in bald terms that it is an offence for a member of group Y to be present in particular localities unless he has express, written authorisation allowing his presence. The court finds particularly helpful the famous/notorious case of Larsonneur, a case where D found herself present in police custody in Wales after being taken into police custody in what is now the Republic of Ireland before being handed on to police officers based in Wales. That was enough to impose and sustain on appeal a conviction for the offence of being an alien, present in the United Kingdom, without leave to land. Was it to the point that her presence in the UK was entirely involuntary, a product of force majeure? No. According to Lord Hewart CJ, presiding, “the circumstances of her entry are perfectly immaterial.”⁴⁰

It is at a point such as exemplified by the verdict in Larsonneur that we leave the realm of the criminal law and encounter plain recourse to the police power. To be sure in a case like Larsonneur, from the police officers up to Lord Chief Justice himself, each individual occupied with preparing and deciding the case would have taken themselves to be about their usual business. But the end result was a criminal conviction without any basis for a conviction. Our starting point for our conceptually based attack on criminal convictions based on circumstances of this kind was the presence of a wrong. We have allowed that criminal wrongs can have as their substance such things as mere presence in a proscribed place.⁴¹

^{But for such things to be criminal wrongs, there must be a particular form}

³⁸ HLA Hart famously defended the retention of mens rea as a constituent of criminal offences on fair warning and due process grounds: Punishment and Responsibility (OUP, Oxford, 1968) at chapters 1 and 7.

^{39 As it did the appeals in the similar English cases of Larsonneur, above n}

^{35, and Winzar, above n 35, but contrast Martin v State of Alabama, above}

^{n 31.}

^{40 (1933) 24 Cr App R 74 at 75.}

^{41 For offences structured in that way courts must be astute to exclude}

^{liability on facts where the responsibility condition is not made out. For}

^{a searching examination of the minimum liability conditions for offences}

^{of this kind see PR Glazebrook, “Situational Liability” in PR Glazebrook}

^{(ed) Reshaping the Criminal Law (Sweet and Maxwell, London, 1978) at}

^108.

of connectedness between D and the wrong in question. An example where such connectivity between D and the wrong would seem to be clearly absent would be where D, a Y group member, is convicted of the proscribed presence offence on the basis of suspicion of presence rather than proof of presence. Suppose he was seen with other Y persons shortly before those persons entered the prohibited zone but there is no evidence of D’s entry. The appellate court quashes his conviction on the obvious ground that the offence was not made out. The legislature responds by amending the offence to provide that proof of the presence of one member of group Y in a prohibited place will incur liability on the part of all members of group Y for the offence. But the degree of minimum connectiveness between defendants and the wrongs alleged against them cannot be created by devices of this sort and for reasons which go well beyond the specifics of this example.⁴²

Responsibility and liability

To be guilty of a criminal wrong, one must be in some fact of the matter sense, responsible for that wrong. Criminal liability is a personal form of liability.⁴³ Any attempt to decouple liability for a criminal wrong from any degree of involvement in the wrong will entail straying from the path of the criminal law. Indeed if such a decoupling were made a general principle, the sky would be the limit. One could be made liable for anything and everything, such as the state of the weather. The necessary involvement, to cash out as a form of personal involvement, can only be of some form of true rather than deemed responsibility for the wrong. The most common form of expressing this responsibility requirement is to say that all crimes require proof against D of some form of voluntary conduct. But that is too ambitious a requirement if we are to remain within the bounds of our conceptual rather than normative critique. There are familiar forms of criminal liability where there is no voluntary conduct requirement in any robust or palpable sense.⁴⁴ For instance,

⁴² This is obviously the case where the offence requires proof of presence and there is no such proof. The device dismissed in the text above of stipulating that proof of one thing is deemed proof of another separate thing seems equally flawed. But what if the legislature had responded to the acquittal by placing a reverse onus on D to prove that he was not present if the prosecution can raise an issue as to his possible presence? Or if the legislature enacted an offence that made it an offence to be reasonably suspected of being present in a prohibited place? See further n 52 and associated text.

⁴³ To be sure corporate liability and the rare instances of true vicarious criminal liability do not involve personal liability but need not distract us from our focus on cases where D is charged on the basis of direct involvement in a criminal offence. Nor are cases of complicity of direct concern although it may be mentioned in passing that though there are many cases of complicity where the heavy lifting is done by the principal offender, all cases of complicity require proof of an actus reus and mens rea on the part of the accomplice.

^{44 DN Husak “Does Criminal Liability Require an Act?” in RA Duff}

crimes based on mere possession of some form of contraband typically impose liability on owners of premises on the basis that the owner should have been aware that prohibited items were on the premises and in some jurisdictions simply on the fact of the presence of the contraband item on the owner ’s premises. So it is that persons such as the trusting parents of drug taking teenage children or the incurious owners of a rented out lock-up garage may find themselves criminally liable when essentially they have done nothing more than get on with their own lives.⁴⁵ Likewise D may be liable on the basis of forgetting to perform some legal duty if a judgement is made that someone less preoccupied of forgetful would have done the required thing.

Of course, the responsibility requirement in this basic sense is most visibly present if D does some voluntary act. Responsibility may be present in these circumstances even if D is quite blameless as when, for instance, he sells food unfit for human consumption even though he has good reason to think that it is fit for human consumption.⁴⁶ But although this may be a harsh form of criminal liability, it takes a coherent form. Particularly for crimes where a core element consists of the causation of a particular result, liability can be based on what Tony Honore terms “outcome responsibility” for the result.⁴⁷ It is when there is no conduct in this palpable sense that we must pin down how it is that the responsibility condition is met. Take the ownership/possession offence discussed above. There have been jurisdictions that have imposed liability simply on the basis that that D owned the premises on which contraband was found. So D a house owner might take a holiday and be burgled. The police may find a cannabis joint in the lavatory pan that the burglar failed to flush away. To punish D for possession of cannabis would not only be ludicrous, it would be incoherent in the sense in point here. Certain forms of absence such as a failure to know that that something is present or that something should be done can be punished coherently if harshly if a finding of responsibility can be made. But in cases of punishment

Philosophy and the Criminal Law (CUP, Cambridge, 1998) at 60; AP Simester “On the So-called Requirement for Voluntary Action” (1998) 1 Buffalo Criminal Law Review 403.

⁴⁵ For a searching examination of the problematic issues raised by the criminalisation of mere possession see MD Dubber “Policing Possession: The War on Crime and the End of the Criminal Law” (2001) 91 Journal of Criminal Law and Criminology 829 and his “The Possession Paradigm: The Special Part and the Police Model of the Criminal Process”, in RA Duff and SP Green (eds) Defining Crimes: Essays in the Special Part of the Criminal Law (OUP, Oxford, 2005) at 91.

^{46 As in Hobbs v Winchester Corporation [1910] UKLawRpKQB 108; [1910] 2 KB 471.}

^{47 Responsibility and Fault (Hart Publishing, Oxford, 1999) at chapter 2. It}

^{might be thought that causing harm even blamelessly places on the causal}

^{agent social obligations of commiseration and concern for the person she}

^{has harmed. Honore, it seems, goes further and considers mere causal}

^{responsibility sufficient to ground civil and even criminal liability. That}

^{may be harsh but it is not incoherent as the responsibility condition is}

^{clearly met.}

for some form of absence, a finding of responsibility can be made only by way of some form of normative input. In such cases the logical requirement for something to which a relationship of responsibility may attach can only be supplied by a finding that at T, D should have done something – found the contraband; reported for duty etc. The minimum input can only be a judgment that a person of normal competence and diligence would have been aware of the presence of contraband or the duty to be done. Were it otherwise we would encounter crass forms of liability, for states of affairs beyond the control and hence responsibility of anyone. And crass forms of liability without responsibility are exactly what we encounter when blameless parents are made criminally liable for the truanting behaviour of their children. To keep the truanting offence within the bounds of the criminal law, there must be proof that D’s acts and omissions with respect to the attendance of her child at school fell below what could be reasonably expected of a responsible parent.⁴⁸

Such attention to the “no liability without responsibility” condition is required beyond the truanting offence, for offences which may have very different content and structures. Some examples can only be very briefly aired here, merely to give some idea of the creeping use in the United Kingdom of what has been termed the police power rather than coherently assigned liability. English law frequently disregards the responsibility condition even in respect of core elements of the actus reus of offences. By way of reverse burdens of proof, satisfaction of a core element of the actus reus of an offence may be presumed unless D can establish the absence of this element. But there cannot be responsibility for an offence unless it can be demonstrated that it was more likely than not that D was responsible for the instantiation of this core element. If the need to demonstrate that is dispensed with then the actus reus requirement and with it the responsibility condition are dispensed with.⁴⁹

Unless the “it is more likely than not that that it was D that did this or omitted to do this” threshold can be reached then there is no basis for assigning the deed to D than to anyone else.⁵⁰ In similar vein there are

⁴⁸ Of course this normative gateway for a finding of responsibility can only work if a sound normative judgment can be made. In the context of the truanting offence D may be incapable of attaining the depersonalised standard of parenting care a court may attribute to the reasonable parent because of personal circumstances interacting with her social and economic environment. If an adverse judgment on her parenting skills is unwarranted there is no basis for a finding of responsibility. For an analysis of negligence as a reliable yardstick for findings of culpability see AP Simester “Can Negligence be Culpable” in J Horder (ed) Oxford Essays in Jurisprudence, Fourth Series (OUP, Oxford, 2000) at 85.

⁴⁹ In the reverse burden of proof jurisprudence there is great uncertainty on what elements of the actus reus are “core” and must be proved by the prosecution in order to comply with the presumption of innocence and what elements are peripheral. There is a consensus among commentators that not infrequently D is put to proof on central matters: see the articles by Dennis and Harmer, above n 28.

^{50 See further Sullivan, above n 23, at 245-253.There are strong normative}

offences which degrade the need to prove that an act, omission or state of affairs has occurred to a mere demonstration that a reasonable suspicion has arisen that D might have acted or omitted to act or be associated with the state of affairs.⁵¹ But of course to establish a reasonable suspicion is to establish nothing in the realm of testable reality. Again, the responsibility condition is effectively dispensed with.⁵² Finally, mention may be made of offences where the actus reus requirement is so broad and non-indicative as to be vacuous. One glaring example: s 5(1) of the Terrorism Act 2005 makes criminal “any conduct” in preparation of acts of terrorism or assisting another to commit such acts. Anything done with the requisite intent, however remote – walking to work instead of taking the bus in order to get fit for jihad – would seem to fit the bill. Essentially this is a thought crime which dispenses with the responsibility condition.⁵³

It has been argued that criminal liability requires a finding of responsibility on the part of D for some act, omission, or association with a state of affairs. That responsibility condition is taken to its very edge when a finding of responsibility is imposed on D on the basis of what a reasonable person would have done rather than what D did or was capable of doing. It has been contended that criminal liability which dispenses with responsibility even in that latter, extended sense strays beyond the bounds of criminal liability as properly understood. The responsibility condition is best understood as a conceptual/logical requirement but not without normative implications. Indeed for crimes

reasons for requiring proof beyond a reasonable doubt but the responsibility condition is satisfied on a balance of probabilities. However, if that threshold is not met, there is no basis for assigning responsibility to D.

⁵¹ For example, s 57 of the Prevention of Terrorism Act 2000 provides that, “a person commits an offence if he possesses an article in circumstances that give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.”

⁵² In R v DPP ex p Kebilene [2000] 2 AC 206 the House of Lords would, if necessary, have read what is now s 57 of the Terrorism Act 2000 as requiring proof that the article was in fact possessed for the purposes of terrorism once the defence had raised the possibility of innocent possession and the same view was taken in Zafar and others v R [2008] EWCA Crim 184. But in R v G [2009] UKHL 13 the House of Lords held that the offence was made out if the prosecution raised a reasonable suspicion.

⁵³ In an aborted criminal trial for this offence the prosecution evidence featured kayaking and paintballing as acts done with the relevant mindset. The case is set down for retrial. As the offence is technically a substantive offence in its own right conduct even more preliminary could be caught by charges of conspiracy and attempt and for assisting and encouraging crime under ss 44-46 of the Serious Crime Act 2007. For a searching critique of liability for conduct so remote from the target harm see L Zedner “Fixing the Future? The Pre-emptive Turn in Criminal Justice” in B McSherry, A Norrie and S Bronitt Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford, 2009) at 35.

^{based on absence – the failure to know something or to do something}

^{– satisfaction of the responsibility condition can only be achieved by}

^{reading a normative, reasonable person liability element into the offence.}

^{One should expect the judiciary to interpret offences in a manner which}

^{comports with the responsibility condition but that is not the case in}

^{England and Wales. The health of the responsibility condition in New}

^{Zealand will now be examined with particular reference to the parental}

^{truanting offence.}

3. Parental Responsibility for Truanting Children in New Zealand

Truancy levels have been a matter of concern and debate in New Zealand.⁵⁴ It seems accepted that the criminal law has a part to play, albeit as a last resort, in addressing this important social and developmental issue. Recent legislation has significantly raised the level of fines that may be imposed on the parents of truanting children.⁵⁵ In terms of the formal requirements for parental liability, the legislative terms are very similar to England and Wales. As noted already s 29 of the Education Act 1989 on the face of it merely requires the irregular attendance or the non-enrolment⁵⁶ of the child of school age. The offence simply describes a state of affairs with no reference at all to any form of culpability on the part of the parent with respect to the truancy. As we have seen the English way would be to read the offence as it is. There would be no deflection from that path however blameless D might be.

There seems very little chance that New Zealand courts would be similarly intransigent. There is no appellate authority on the interpretation of the parental truanting offence. One reason for the dearth of appellate authority may be the low number of prosecutions for the offence.⁵⁷ Even if the size of the respective populations are kept in mind, given the reported truancy levels in New Zealand,⁵⁸ it would appear that prosecuting parents is very much a matter of last resort. It is not implausible to surmise, given this context, that the very few parents who do appear before the court have been less than perfect in supporting their child’s attendance at school. It may be that understandable sense of grievance that has given rise to appeals by parents in England and Wales has not been a factor in New Zealand.

But what would be the response of the New Zealand Court of Appeal

⁵⁴ (12 March 2008) 645 NZPD 14815.

^{55 Section 29(2) of the Education Act 1989, as amended by s 5(2)(a) of the}

^{Education (National Standards) Amendment Act 2008 (No 108), which}

^{raised the maximum fine to $3,000.}

^{56 Education Act 1989, s 24.}

^{57 In the Parliamentary debate on the Education (National Standards)}

^{Amendment Bill, above n 54, Anne Tolley reported that as of December}

^{2008 there had only been 24 prosecutions in the last four years.}

^{58 It has been estimated that approximately 30,000 children truant in each}

^{week of school in New Zealand: L Tan “Truancy parents face fine of $3000”}

^{New Zealand Herald, 12 December 2008.}

should it ever arise that a court of first instance reads s 29 in a purely literal manner even though the consequence is the conviction of a blameless parent? There are very strong reasons to suppose that s 29 would be read in a fashion which would exclude the liability of blameless defendants. First there is the general approach to all offences of strict liability. The Court of Appeal of New Zealand has set its face against what may be called absolute liability, namely the conviction of the completely blameless.⁵⁹ Though the term strict liability is used, an offence construed as an offence of strict liability is but prima facie strict in that D may avoid liability by proving his blamelessness to the court.⁶⁰ Although from a pure retributivist stance this may be far from perfect – a person blameless in fact may not be able to persuade a court that such is the case – it is considerably more just than the absolutist English approach.

Appellate authority in New Zealand has been particularly concerned to ensure what has been called in this article the “responsibility condition” is satisfied in the context of status offences similar in underlying structure to the parental truanting offence. Although it has been argued here that the responsibility condition is a formal, conceptual requirement, as argued for already, when liability requires nothing in the way of positive conduct on the part of D, this formal requirement can only be satisfied by reading in a normative element. The minimum requirement in this regard is a finding that a person of normal diligence and competence could have avoided acquiring the proscribed status. And this is the normative baseline that has been applied in New Zealand. So, in Finau v Department of Labour,⁶¹ where D was charged with staying in New Zealand after the expiry of her permit, her conviction was quashed because no airline was prepared to take her as a passenger because of her pregnant condition. By contrast, in Tifaga v Department of Labour⁶² the conviction for the same offence was sustained on appeal because D’s inability to travel from New Zealand was down to his failure to retain enough money for his fare.

This staying beyond leave offence has much in common in structural terms with the truanting offence. Though ostensibly based on a proscribed presence, it is in substance based on an absence, namely the failure to have taken leave of New Zealand. Because it is an offence of that kind, the responsibility condition cannot be met without some

⁵⁹ Tell v Maritime Safety Authority [2008] NZAR 306 (CA) at [12]-[13], citing Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) and Millar v Ministry of Transport [1986] 1 NZLR 660 (CA). For a discussion on strict liability and the categorisation of offences see generally, Hon J Bruce Robertson (consulting ed) Adams on Criminal Law (Brookers, Wellington

^{1994 – ) at CA20.11 and following.}

^{60 In fact, there is a presumption that an offence is to be construed as one in}

^{which the prosecution must prove blameworthiness. In situations where}

^{there is a “weighty enough” reason to depart from this rule, the accused}

^{is nevertheless almost always permitted to prove absence of fault; Millar,}

^{above n 59, at 668, 697.}

^{61 [1984] 2 NZLR 396 (CA).}

^{62 [1980] 2 NZLR 235 (CA).}

normative input. As argued already, the minimum requirement must be proof of a failure to do what a reasonable person would have done if placed in like circumstances. It is not enough that D be allowed to prove to the court that he did everything to be reasonably expected. He may in fact have acted reasonably but be unable to prove it (D did buy a plane ticket but he cannot persuade the court that it was stolen rather than lost when he got drunk but it was in fact stolen). But unless D is proved to have been negligent with respect to an absence the responsibility condition is not made out. And, mutatis mutandis, the same applies for the truanting offence.

4. Conclusion

An argument can be made that the proper bounds of the criminal law can only be identified by applying soundly based retributivist theory. All crimes would be crimes of full mens rea and their content would be limited to forms of conduct which clearly breach a long standing and stable moral code. The criminal law would not be used in any activist way. It would not be used to deliver any significant part of a newly elected government’s programme of reform. The role of the criminal law would be reactive, responding to serious wrongs as and when occurring. The principal role of the criminal law would be to confirm and validate the moral code by imposing on convicted offenders punishment strictly proportionate to the nature and gravity of the wrongs they have done.

This idealised account (or caricature) of a traditional, lost form of criminal law, lacks conviction for the United Kingdom either as an aspiration or critique. The criminal law has been co-opted into the current and changing policy and reform agendas of governments. In areas such as terrorism, the suppression of fraudulent and corrupt activities, money laundering, illegal immigration and people trafficking, the focus is as much on the disruption and the stripping out of the gains accruing from such activities as with their punishment ex post facto. Even in core, traditional areas of the criminal law such as personal violence and sexual abuse, there have been radical changes in law and procedure to increase the range and effectiveness of the criminal law. And the criminal law may become part of a stick and carrot approach to such important aspects of social policy as regular school attendance as part of a multi-track approach to supporting the stability of families and the social integration of parents and their children.⁶³

There is no realistic way back to more restrained and measured use of the criminal law. But the criminal law has remained fairly constant in its punitive and shaming impact. This is highly problematic when criminal law is used in a pro-active and goal orientated way. In pursuit of admirable aims (who for instance could be against increasing the protection of young children from sexual abuse?) some very harsh

⁶³ See Horder, above n 10.

measures may be passed.⁶⁴ Speaking only of the situation that prevails in the United Kingdom, normative critique emanating from academe is unlikely to have any moderating effects on such developments. Public opinion seems squarely behind such measures. A case has been made here that in some cases the use of the criminal law in pursuit of social objectives has gone beyond the terms of criminal liability in the sense of a coherent understanding of what criminal liability can be for. It may be that conceptual critique will have as little effect on legislators and policy makers as the more familiar normative critiques. In which case, we will have to become accustomed to an increasing use of the police power in the guise of the application of the criminal law.

⁶⁴ Sections 5-8 of the Sexual Offences Act 2003 create a number of child sex offences. They include a rape of a child (s 5) punishable with life imprisonment. The offence is complete if sexual intercourse is had with a person under the age of 13. In R v G [2008] UKHL 37 the House of Lords confirmed the rape conviction of a 15 year old boy who had consensual intercourse with his 12 year old girlfriend. The prosecution accepted that he reasonably believed that his girlfriend was 15. Other child sex offences criminalise such things as consensual kissing and fondling between children under the age of 16. There have been a number of oppressive prosecutions: see further JN Spencer “Sexual offences with children” [2004] Criminal Law Review 37.