Truancy Sweeps
I don't think that the position on a truancy sweep is as clear as you put it. It is not a speculative “stop and search” exercise, it is a targeted sweep authorised under s16 Crime and Disorder Act 1998 and aimed first at detaining or returning to school children who should be there and detaining children who have been excluded during the first 5 days of their exclusion.
The sweep has to be authorised by the LA and a police superintendent (or higher rank) and is carried out within an area limited both geographically and in time. A police officer (which is in this case specifically extended to include a police community support officer) is authorised to “remove” any child the officer “has reasonable cause to believe” is of compulsory school age and absent from school without authority, or (in England but not in Wales) who is excluded from school and who the officer believes “has no reasonable justification for being in the public place”. They can be removed to a place designated by the LA (which Guidance says should not be a police station) or returned to their school, (unless it is the one from which they are excluded).
You can find the guidance at
_http://www.teachernet.gov.uk/_doc/13915/School%20attendance%20and%20exclusions%20sweeps%20-%20Effecti
ve%20practice%20and%20advice.pdf_
(http://www.teachernet.gov.uk/_doc/13915/School%20attendance%20and%20exclusions%20sweeps%20-%20Effective%20practice%20
and%20advice.pdf)
Importantly, s16(4) provides that “A child's or young person's absence from a school shall be taken to be without lawful authority unless the child or young person is prevented from attending by sickness or other unavoidable cause or the absence falls within subsection (3) (leave or day set apart for religious observance) of section 444 of the Education Act 1996.”
This section has the effect of placing some burden on the child (or her parents) to explain the apparent absence failing which she is deemed to be absent without lawful authority and liable to “removal”. Thus a police officer approaching what the officer reasonably believes to be a school age child in public in school hours (as part of a truancy sweep) has, on the face of it, reasonable grounds to suspect that the child is awol and can be removed, unless there is something that unseats that view. This might be something obvious such as a broken leg or something that the child or parent says. Effectively this puts the child and parent on the backfoot and the officer in a stronger position than might be on a stop and search.
The nub of what we are considering is what powers police officers have if they are told “We are home educating.” and nothing more. Whilst that might work for Alec Guinness, it might not be guaranteed to work in this universe.
The current (non-statutory) guidance on s16 sweeps confirms that HE children are not the target of the sweeps but goes on to say “It is not always necessary to confirm a child’s status as home educated but there will be occasions when officers will need to do so.” and “Local authorities have a duty to identify children missing from education and to safeguard all children in their area. If those carrying out the sweep are satisfied that a child is being educated otherwise than at school and have no other concerns, there is no need for further discussions.”
If the officer forms the view that the parent is lying, or even that s/he wishes to make further enquiries to confirm the position, additional questions are bound to follow. Who can know what the officer and accompanying EWOs have discussed during the pre-sweep briefing and who can know what instructions have been handed down by the EWOs managerial team. I would be concerned that they might have specifically been made aware of the duty to locate children missing education in s436A Ed Act 1996 which requires LAs to make arrangements to establish the identities of children not registered at a school and not receiving a suitable education. “Making arrangements” could easily be ascertaining the names and addresses of all children who said they were home educated.
That of course does not mean that the children or a parent with them has to say who they are or where they live. However, not doing so may result in her being “removed” and the parent being arrested. Equally it may not, but it seems to me that what happens depends on matters that fall outside the law. A straightline approach to the law is likely to result in removal/arrest, but that depends on the individual police officer, the circumstances and the behaviour/demeanour of the child and parent. Before I approach that variable, let me explain why I think it could result at worst in removal/arrest.
In view of the terms of s16(4) unless the officer is satisfied that a child is not registered at school (or, in England, excluded), removal is likely to result. Arrest will take a bit longer to explain.
Without question, if the police have no reasonable grounds to suspect you of committing or having committed an offence, you do not have to answer any question they put to you. However the position is different if they form the view that they do have reasonable grounds for an arrest. A child cannot be arrested in a sweep as they commit no offence, hence the power to remove.
The question then is, does the presence in public of an adult with an apparently school-aged child in term time, who will not supply a name and address so that a check can be carried out as to whether they are committing an offence, give rise to the reasonable suspicion that an offence is being committed sufficient to permit the police officer to arrest the parent? I don’t see why not.
Failing to ensure the regular attendance of a registered pupil (aged 5 to 16) is an offence contrary to s444 Ed Act 1996, and regular attendance means every day, all day. So, a child out on the street when it might be supposed that 99% (or whatever) should be in school, might well give a police officer reasonable grounds to think that the child's parents are committing an offence. The officer would not need more than that to investigate if anoffence was actually being committed (as it looks like it might be). If s/he reaches the conclusion no offence is being committed, no action can be taken and s/he cannot ask for name and address. If s/he is uncertain, s/he may want that information to make further enquiries. If s/he believes that an
offence is being committed, s/he will need that information to take matters further. It seems to me that in the last 2 cases, an arrest could follow a refusal to give name and address.
An offence contrary to s444 used to be described as a non-arrestable offence, however, the Police and Criminal Evidence Act 1984 (PACE) has (with some argument which I will mention below) always allowed a police officer to arrest someone the officer believed was committing such an offence if the officer did not have their true name and address at which they might receive a summons. This power was formerly found in section 25 PACE.
I say formerly because in 2006, the last government, under the guise of having decided that police officers could not remember the lists of arrestable and non-arrestable offences, widened powers of arrest to allow them to arrest anyone they reasonable suspected of committing ANY offence. To effect this change, PACE was amended by the Serious Organised Crime and Police Act 2005 (SOCPA). So if you look at a version of PACE to see what the law is you have to make sure that it is the amended one. The govt site which is supposed to update statutes so you can see what is in force, and what is not, is regrettably not always up to date but it seems to have this amendment. You can see it at the newly name-changed _www.legislation.gov.uk_(http://www.legislation.gov.uk) . You'll know if it is the amended PACE as there is now no s25.
The SOCPA amended s24 contains the current police power of arrest. It enables police officers to arrest anyone who is committing an offence, or whom the officer reasonably believes is committing an offence IF, for one or more of a list of reasons set out in s24(5), it is necessary to do so. So the poor forgetful police officer still has to learn a list. The list of reasons includes the following (I have missed out ones that would not apply to HE'rs)
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) “correspondingly” as regards the person's address;
which replicate the old powers under the unamended s25, - but, of course, the opportunity to add new powers could not be resisted, and the list goes on
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
I have included (d) as people need to be aware of it so they can be ready to rubbish it.
However, it seems to me that (e) and (f) can be grounds of arrest even if the officer knows the name and address of the parent. (f) can be defeated if the officer does not have reasonable grounds for doubting name and address but (e) might still be employed if the police officer thought that it would enable checks to be carried out with the local authority, for example, to see if the child was known to their home LA or on the CME database now that there is the s436A duty.
Thus IMO the power exists for the police to arrest, if the individual officer decides to use it. S/he will be concerned to do so correctly and so that it avoids any legal action for wrongful arrest and, again, IMO, s/he will probably be unlikely to want to arrest someone for this (unless given a positive reason to do so, such as a parent being less than tactful).
This is where I said that there was some argument to be had by which to baffle and bemuse. There is the argument that, perhaps contrary to what I have set out above, whether just seeing a person with a child during school hours means that it is reasonable to believe the child should be in school. There are numerous reasons why the child should not, even if they were to be a pupil. Whilst I suspect that a court would support an arrest where all the officer knew was the unsupported assertion that the child was home educated that does not mean that it is not a good argument to put to the officer.
It seems to me that, in order to be able to arrest, In essence the officer has to have reasonable grounds to believe that
1 the child is of compulsory school age
2 she is a registered pupil at a school somewhere, be it state run or public
3 she has no legitimate reason for not being in school, and
4 the person with her is a parent (the Ed Act definition is much wider than biological parents and includes people who "have care" of the child, whatever that might mean)
5 that therefore the parent is committing an offence, or, reasonably might be and an arrest is necessary to confirm the position.
So the discussion to hold would be along the lines of "we home educate, I am not committing an offence, you have no reason to doubt what I say and therefore cannot have reasonable grounds to believe that I am." You could add, "I do not have to prove that I home educate as the burden of proof that I am committing an offence is on you and you really need to be so sure you are right as otherwise it would be wrongful arrest". You can see that this needs increasing levels of braveness. If you were really brave you could say that the officer has no grounds for detaining you to ask questions and you are taking your child and going. This might mean they decide that
it's not worth a fight but equally it might mean that it precipitates one.
Usually asking LEA staff if they are saying that you are lying works as they start to backtrack, people seem reluctant to say yes to your face and if they say no, you can then argue that that's the end of any conversation. It might work with the police.
There is a technical argument which might bamboozle the police enough for them not to be sure enough to do anything and that is that the police cannot prosecute for the s444 offence. Only the LA can do so and it is likely that the EWO with the police will not have the authorisation from the LA to commence any prosecution. If the police can't prosecute then how can they arrest? - IMHO, they can but they might not be confident to work that out with sufficient firmness (curiously the police can still issue a fixed penalty notice for s444 offences even though they cannot prosecute - this could be another reason they would be justified in asking your name and address).
A PCSO cannot arrest but has powers to detain for/until a proper police officer arrives. If that happened, the police officer would still want to go through everything again before s/he decided to arrest, so you would have a second bite.
EWOs cannot arrest, they have no specific power to do so, and they cannot rely on a "citizen's arrest" as this is only lawful if the offence is an indictable one, s444 is not indictable.
So, it’s up to you how far you go, but you need to know exactly what the officer can do in order to know how far you want to push it and when the cards are getting stacked against you. The limiting factor, I guess, is the effect any argument is having on your children.
The sweep has to be authorised by the LA and a police superintendent (or higher rank) and is carried out within an area limited both geographically and in time. A police officer (which is in this case specifically extended to include a police community support officer) is authorised to “remove” any child the officer “has reasonable cause to believe” is of compulsory school age and absent from school without authority, or (in England but not in Wales) who is excluded from school and who the officer believes “has no reasonable justification for being in the public place”. They can be removed to a place designated by the LA (which Guidance says should not be a police station) or returned to their school, (unless it is the one from which they are excluded).
You can find the guidance at
_http://www.teachernet.gov.uk/_doc/13915/School%20attendance%20and%20exclusions%20sweeps%20-%20Effecti
ve%20practice%20and%20advice.pdf_
(http://www.teachernet.gov.uk/_doc/13915/School%20attendance%20and%20exclusions%20sweeps%20-%20Effective%20practice%20
and%20advice.pdf)
Importantly, s16(4) provides that “A child's or young person's absence from a school shall be taken to be without lawful authority unless the child or young person is prevented from attending by sickness or other unavoidable cause or the absence falls within subsection (3) (leave or day set apart for religious observance) of section 444 of the Education Act 1996.”
This section has the effect of placing some burden on the child (or her parents) to explain the apparent absence failing which she is deemed to be absent without lawful authority and liable to “removal”. Thus a police officer approaching what the officer reasonably believes to be a school age child in public in school hours (as part of a truancy sweep) has, on the face of it, reasonable grounds to suspect that the child is awol and can be removed, unless there is something that unseats that view. This might be something obvious such as a broken leg or something that the child or parent says. Effectively this puts the child and parent on the backfoot and the officer in a stronger position than might be on a stop and search.
The nub of what we are considering is what powers police officers have if they are told “We are home educating.” and nothing more. Whilst that might work for Alec Guinness, it might not be guaranteed to work in this universe.
The current (non-statutory) guidance on s16 sweeps confirms that HE children are not the target of the sweeps but goes on to say “It is not always necessary to confirm a child’s status as home educated but there will be occasions when officers will need to do so.” and “Local authorities have a duty to identify children missing from education and to safeguard all children in their area. If those carrying out the sweep are satisfied that a child is being educated otherwise than at school and have no other concerns, there is no need for further discussions.”
If the officer forms the view that the parent is lying, or even that s/he wishes to make further enquiries to confirm the position, additional questions are bound to follow. Who can know what the officer and accompanying EWOs have discussed during the pre-sweep briefing and who can know what instructions have been handed down by the EWOs managerial team. I would be concerned that they might have specifically been made aware of the duty to locate children missing education in s436A Ed Act 1996 which requires LAs to make arrangements to establish the identities of children not registered at a school and not receiving a suitable education. “Making arrangements” could easily be ascertaining the names and addresses of all children who said they were home educated.
That of course does not mean that the children or a parent with them has to say who they are or where they live. However, not doing so may result in her being “removed” and the parent being arrested. Equally it may not, but it seems to me that what happens depends on matters that fall outside the law. A straightline approach to the law is likely to result in removal/arrest, but that depends on the individual police officer, the circumstances and the behaviour/demeanour of the child and parent. Before I approach that variable, let me explain why I think it could result at worst in removal/arrest.
In view of the terms of s16(4) unless the officer is satisfied that a child is not registered at school (or, in England, excluded), removal is likely to result. Arrest will take a bit longer to explain.
Without question, if the police have no reasonable grounds to suspect you of committing or having committed an offence, you do not have to answer any question they put to you. However the position is different if they form the view that they do have reasonable grounds for an arrest. A child cannot be arrested in a sweep as they commit no offence, hence the power to remove.
The question then is, does the presence in public of an adult with an apparently school-aged child in term time, who will not supply a name and address so that a check can be carried out as to whether they are committing an offence, give rise to the reasonable suspicion that an offence is being committed sufficient to permit the police officer to arrest the parent? I don’t see why not.
Failing to ensure the regular attendance of a registered pupil (aged 5 to 16) is an offence contrary to s444 Ed Act 1996, and regular attendance means every day, all day. So, a child out on the street when it might be supposed that 99% (or whatever) should be in school, might well give a police officer reasonable grounds to think that the child's parents are committing an offence. The officer would not need more than that to investigate if anoffence was actually being committed (as it looks like it might be). If s/he reaches the conclusion no offence is being committed, no action can be taken and s/he cannot ask for name and address. If s/he is uncertain, s/he may want that information to make further enquiries. If s/he believes that an
offence is being committed, s/he will need that information to take matters further. It seems to me that in the last 2 cases, an arrest could follow a refusal to give name and address.
An offence contrary to s444 used to be described as a non-arrestable offence, however, the Police and Criminal Evidence Act 1984 (PACE) has (with some argument which I will mention below) always allowed a police officer to arrest someone the officer believed was committing such an offence if the officer did not have their true name and address at which they might receive a summons. This power was formerly found in section 25 PACE.
I say formerly because in 2006, the last government, under the guise of having decided that police officers could not remember the lists of arrestable and non-arrestable offences, widened powers of arrest to allow them to arrest anyone they reasonable suspected of committing ANY offence. To effect this change, PACE was amended by the Serious Organised Crime and Police Act 2005 (SOCPA). So if you look at a version of PACE to see what the law is you have to make sure that it is the amended one. The govt site which is supposed to update statutes so you can see what is in force, and what is not, is regrettably not always up to date but it seems to have this amendment. You can see it at the newly name-changed _www.legislation.gov.uk_(http://www.legislation.gov.uk) . You'll know if it is the amended PACE as there is now no s25.
The SOCPA amended s24 contains the current police power of arrest. It enables police officers to arrest anyone who is committing an offence, or whom the officer reasonably believes is committing an offence IF, for one or more of a list of reasons set out in s24(5), it is necessary to do so. So the poor forgetful police officer still has to learn a list. The list of reasons includes the following (I have missed out ones that would not apply to HE'rs)
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) “correspondingly” as regards the person's address;
which replicate the old powers under the unamended s25, - but, of course, the opportunity to add new powers could not be resisted, and the list goes on
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
I have included (d) as people need to be aware of it so they can be ready to rubbish it.
However, it seems to me that (e) and (f) can be grounds of arrest even if the officer knows the name and address of the parent. (f) can be defeated if the officer does not have reasonable grounds for doubting name and address but (e) might still be employed if the police officer thought that it would enable checks to be carried out with the local authority, for example, to see if the child was known to their home LA or on the CME database now that there is the s436A duty.
Thus IMO the power exists for the police to arrest, if the individual officer decides to use it. S/he will be concerned to do so correctly and so that it avoids any legal action for wrongful arrest and, again, IMO, s/he will probably be unlikely to want to arrest someone for this (unless given a positive reason to do so, such as a parent being less than tactful).
This is where I said that there was some argument to be had by which to baffle and bemuse. There is the argument that, perhaps contrary to what I have set out above, whether just seeing a person with a child during school hours means that it is reasonable to believe the child should be in school. There are numerous reasons why the child should not, even if they were to be a pupil. Whilst I suspect that a court would support an arrest where all the officer knew was the unsupported assertion that the child was home educated that does not mean that it is not a good argument to put to the officer.
It seems to me that, in order to be able to arrest, In essence the officer has to have reasonable grounds to believe that
1 the child is of compulsory school age
2 she is a registered pupil at a school somewhere, be it state run or public
3 she has no legitimate reason for not being in school, and
4 the person with her is a parent (the Ed Act definition is much wider than biological parents and includes people who "have care" of the child, whatever that might mean)
5 that therefore the parent is committing an offence, or, reasonably might be and an arrest is necessary to confirm the position.
So the discussion to hold would be along the lines of "we home educate, I am not committing an offence, you have no reason to doubt what I say and therefore cannot have reasonable grounds to believe that I am." You could add, "I do not have to prove that I home educate as the burden of proof that I am committing an offence is on you and you really need to be so sure you are right as otherwise it would be wrongful arrest". You can see that this needs increasing levels of braveness. If you were really brave you could say that the officer has no grounds for detaining you to ask questions and you are taking your child and going. This might mean they decide that
it's not worth a fight but equally it might mean that it precipitates one.
Usually asking LEA staff if they are saying that you are lying works as they start to backtrack, people seem reluctant to say yes to your face and if they say no, you can then argue that that's the end of any conversation. It might work with the police.
There is a technical argument which might bamboozle the police enough for them not to be sure enough to do anything and that is that the police cannot prosecute for the s444 offence. Only the LA can do so and it is likely that the EWO with the police will not have the authorisation from the LA to commence any prosecution. If the police can't prosecute then how can they arrest? - IMHO, they can but they might not be confident to work that out with sufficient firmness (curiously the police can still issue a fixed penalty notice for s444 offences even though they cannot prosecute - this could be another reason they would be justified in asking your name and address).
A PCSO cannot arrest but has powers to detain for/until a proper police officer arrives. If that happened, the police officer would still want to go through everything again before s/he decided to arrest, so you would have a second bite.
EWOs cannot arrest, they have no specific power to do so, and they cannot rely on a "citizen's arrest" as this is only lawful if the offence is an indictable one, s444 is not indictable.
So, it’s up to you how far you go, but you need to know exactly what the officer can do in order to know how far you want to push it and when the cards are getting stacked against you. The limiting factor, I guess, is the effect any argument is having on your children.
posted by Carlotta @ 10:21 PM
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