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O’Hagan v Rea
May 3, 2009 | One Comment
An objection was made to the Article 6 compatibility of the provisions of Section 35 of the Education Scotland Act 1980 which made it an offence for a parent to fail to ensure that their child attended school regularly.
The sheriff held that if section 35(1) of the 1980 Act were interpreted as imposing an offence of strict liability on the parent it would be incompatible with Article 6 in that it could be used to criminalise parents who could do nothing to prevent their child playing truant. The sheriff however found that it was open to him to re-interpret section 42(1)(c) of the 1980 Act in a Convention compatible way to allow any reasonable excuse afforded by a parent to be considered as a defence against criminal liability under Section 35(1).
Art. 06 Right to a Fair Trial, Child & Family Law, Education Law
This decision should be contrasted with the Divisional Court’s view in Barnfather v London Borough of Islington [2003] EWHC 418 (Admin) DC, where they held Article 6 (2) was not engaged. The question, the court said, was whether Art.6(2) provided a criterion against which the substance of a domestic offence could be scrutinised or whether it was confined to procedural and evidential matters; in the ECHR decision of Salabiaku v France 13 EHRR 379 it was of the latter kind. Neither the decision in Salabiaku nor anything else relied upon by the appellant provided a basis for holding that s.444(1) of the 1996 Act was incompatible with Art.6(2) of the Convention.