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Education - Department for Education Prosecutions

Updated: 30 October 2017

Introduction

The Crown Prosecution Service institutes and conducts prosecutions relating to certain criminal investigations by Ofsted. All prosecutions to which this guidance relates require the consent of the Secretary of State for Education, who is the regulator of independent schools.

It is anticipated that prosecutions will usually involve the offence of conducting an unregistered independent school in England, contrary to section 96 of the Education and Skills Act 2008 (the Act). There is also an ancillary offence under section 97(4) of the Act, of intentionally obstructing a person carrying out an inspection. Both offences are summary only.

It is expected that very often these prosecutions will follow an inspection of a school pursuant to s. 97(1) of the Act. This occurs where the Chief Inspector (or a person to whom the Chief Inspector has delegated the powers under section 97(1)) has reasonable cause to believe that an offence pursuant to s. 96 of the Act is being committed. These inspections are normally carried out by Ofsted inspectors authorised by the Chief Inspector to carry them out. Evidence gathered during these inspections will form the evidential basis for most prosecutions.

If appropriate, the DfE and/or Ofsted will liaise with other agencies, such as the police, local authorities, the Health and Safety Executive, Charity Commission and the Disclosure and Barring Service, if there are child welfare or health and safety concerns. Even if action by other agencies result in the school shutting down, it may in some cases still be appropriate to prosecute the person conducting the school under section 96.

For further information see the DfE Policy Statement: prosecuting unregistered independent schools.

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The Offences

Conducting an unregistered independent school

The offence is described at s. 96(2) of the Act in the following terms:

"A person who conducts an independent educational institution in contravention of subsection (1) (Duty of Registration) is guilty of an offence."

The ingredients of the offence are:

A person who:

  1. conducts
  2. an independent school where education is provided for 5 or more children of compulsory school age; or at least one child who is looked after by the local authority or who has an Education Health an d Care Plan (EHCP) or a statement of special education needs (SEN)
  3. offering education on a full time basis
  4. which is not registered

Conducts

This word is given its ordinary English language meaning. In this context, the word connotes managing, running, controlling or organising the institution. It is likely that a person in a managerial capacity would easily fall within the description (e.g. Headmaster, Director, Governor). However, a person who claims their duties are confined to teaching at the school might not be "conducting" the school. In such circumstances, the extent to which someone "conducts" a school is likely to be a trial issue and fact dependant. A company is a person and is capable of being considered for prosecution.

Independent School

The offence refers to an "independent educational institution". The meaning of "independent educational institution" is set out in s. 92(1) of the ESA 2008. The commencement provisions (SI 2014/3364, articles 2 and 3) in respect of that section have the effect of limiting the meaning to an "independent school". By virtue of s 136, the term "independent school" is to be construed by reference to the relevant provisions of the Education Act 1996 (EA 1996). Section 463 of the EA 1996 defines an "independent school" as: (a) a school at which; (b) full-time education is provided; (c) for five or more pupils of compulsory school age OR at least one who is looked after by the local authority (within the meaning of section 22 of the Children Act 1989) or who has an EHCP/statement of special education needs; and (d) which is not maintained by the local authority (etc.). A child begins to be of compulsory school age on the prescribed day which either falls on or follows a person's fifth birthday. The prescribed days are currently 31st August, 31st December and 31st March, i.e. the term following the child's fifth birthday. A young person ceases to be of compulsory school age on the school leaving date in the academic year in which they turn 16. The school leaving date is currently set as the last Friday in June.

Full time basis

"Full time" is not defined in statute, so whether education is "full time" will be a question of fact. The DfE has issued policy guidance which is the starting point. It states that if an establishment is providing education which is intended to provide all or substantially all of a child's education then it can be considered as offering full time education.

Following the guidance, relevant factors in determining whether education is full-time include:

  1. The number of hours per week that is provided - including breaks and independent study time
  2. The number of weeks in the academic term/year the education is provided
  3. The time of day it is provided
  4. Whether the education provision in practice precludes the possibility that full-time education could be provided elsewhere.

In terms of hours, according to the DfE guidance, it is unlikely that a school operating for less than 18 hours a week would satisfy this test. The DfE guidelines state:

"Generally, we consider any institution that is operating during the day, for more than 18 hours per week, to be providing full-time education. This is because the education being provided is taking up the substantial part of the week in which it can be reasonably expected a child can be educated, and therefore indicates that the education provided is the main source of education for that child."

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Not registered

The question of whether an institution is registered is a straightforward matter. Section 138 of the Act states that "register" means the register of independent educational institutions in England which is kept by the Secretary of State pursuant to s. 95 of the Act. In practice it is kept on an online database - "Edubase" - which lists all the schools in England. Ordinarily as a point of fact the school is registered or it is not.

Sentence

The maximum sentence is 6 months or a level 5 fine or both.

Evidence

It is likely that the evidence available to a prosecutor in the case of a section 96 offence will involve the following material:

  1. Copies of documents obtained by inspections carried out in pursuance of s. 97 of the Act. Important documents are likely to be: registers; timetables; curriculums; communications with parents and other internal documents relating to the operation of the school.
  2. Witness statements made by Ofsted Inspectors as to their observations on site.
  3. Witness statements from Ofsted Inspectors giving evidence that might be considered expert evidence, such as policy guidance on what is full time education and the education requirements of pupils of relevant ages.
  4. Public Source material such as documentation from the relevant school's website and records from Companies House in relation to the organisational structures of entities conducting schools.

Disclosure

Although the offences in question are summary only, streamlined summary disclosure will not apply to these cases. The Disclosure Officer should provide a disclosure certificate and full disclosure schedules to the prosecutor, as per the provisions of the Criminal Procedure and Investigations Act 1996 (CIPA). The schedules should be provided with the full review file, before a charging decision is made, together with any material that may undermine the prosecution case or assist the defence case.

Potentially, three organisations are involved in the supervisory regime. These include Ofsted, DfE and local authorities (LA). There is an argument as to whether Local Authorities are third parties for the purpose of disclosure. However in practice, these are different arms of the state and Prosecutors should ensure that the appointed Disclosure Officer has inspected relevant material belonging to all three agencies and has included all relevant material on the schedules. The contents of departmental files may be relevant. Where, exceptionally, an agency is in possession of highly sensitive material which is considered too sensitive for inclusion in the principle sensitive material schedule, the person holding the material must contact the prosecutor to discuss the material. (Refer to chapter 9 of the Disclosure Manual for further guidance.)

Intentionally obstructing a person carrying out an inspection

Under s. 97(4) of the Act it is an offence to intentionally obstruct any person whilst exercising the powers of the inspection under section 97. The offence is a stand-alone offence. There is a clear analogy with obstruction of a constable contrary to s. 89 of the Police Act 1996 in relation to the components comprising the offence:

  1. The Inspector must have been obstructed. That is to say that his work must have been made more difficult by the action of the defendant.
  2. The obstruction must be "wilful", meaning the defendant must act (or refuse to act) deliberately, knowing and intending his act will obstruct the Inspector.
  3. In parallel with the "in the execution of his duty" requirement it is clear that the s. 97(4) offence requires the Inspector who is being obstructed to have been engaged in functions in relation to the inspection at the moment of his obstruction by the defendant.

The maximum sentence is a fine not exceeding level 4.

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Public Interest

When assessing whether a prosecution is required in the public interest, prosecutors must follow the principles set out at paragraphs 4.7 to 4.12 of the Code for Crown Prosecutors.

Additionally, the following non-exhaustive list of factors should be considered:

  • The level of risk to the welfare of the children, which includes physical and mental well-being.
  • The exposure of children to extremist ideology.
  • The narrowness of the curriculum being taught means that the education provided is not suitable to the requirements of the age range of pupils.
  • Whether the curriculum being taught is one which has or would be likely to disadvantage pupils.
  • The extent to which the standards that are contained in the Independent Schools Standards, which although not applicable to the school, are not being met.
  • Whether there is evidence that the failure to register is motivated by a wish to avoid the Independent School Standards.
  • Knowingly not complying with warnings by Ofsted or the DfE that the school should cease to operate as an independent school.
  • Persistent breaches of section 96 by the school proprietor, such as opening and closing a succession of schools in order to avoid the registration requirements.
  • Opening or continuing to operate a school after a registration application is rejected or before it has been considered.
  • Switching back and forth between full and part-time provision in order to avoid the registration requirement.
  • The suitability of the proprietor to be involved in providing education, in particular:
    • The proprietor teaches at the school in breach of a teaching prohibition direction from the National College of Teaching and Leadership.
    • The proprietor employs someone at the school who has been similarly barred by the NCTL.
    • The proprietor or someone employed in the management of the school is prohibited from taking part in the management of an independent school under section 128 of the Education and Skills Act 2008.
    • The proprietor or a person employed at the school participates in regulated activity despite being barred by the Disclosure Barring Service.
    • The proprietor is suspected of fraud or misappropriation of funds received in connection with the running of the school.
    • The proprietor has been convicted of any offence that would indicate they are unsuitable to be the proprietor of an independent school.
  • Whether the school has now closed and is not likely to re-open.

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Charging decisions

Pending an Attorney General's assignment to prosecute Ofsted investigated cases, cases will be prosecuted under the power in s. 3(2)(b) of the Prosecution of Offences Act 1985. Accordingly, when making a charging decision, prosecutors must apply their mind to the criteria in s. 3(2)(b), and state on the MG3 whether the importance or difficulty of the case makes it appropriate that proceeding should be instituted by the DPP, i.e. the CPS, or whether it is otherwise appropriate for proceedings to be instituted by the DPP. Most cases are likely to meet the "otherwise appropriate" test, as the CPS has agreed to prosecute these cases and the other agencies involved have limited prosecution experience. Some cases may additionally meet the importance or difficulty tests, depending on the facts and circumstances of the case.

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CPS roles and responsibilities

External

The CPS has responsibility for:

  1. Providing advice pre-charge
  2. Making the decision to charge or not to charge
  3. The initiation of court proceedings via charge and requisition (subject to the requirement for the consent of the Secretary of State); and
  4. Conduct of the case until resolution, including any decision to discontinue proceedings, or to vary the charges, or the acceptability of any basis of plea.

Internal

The cases will be conducted by Area Complex Casework Units (CCU) in the following fashion:

  1. Case materials will be sent directly from Ofsted to the appropriate Area CCU Unit Head where early investigative advice is required.
  2. At the point when a charging decision is requested, Ofsted will seek and obtain the approval of the DfE prior to the request being considered by the Unit Head of the CCU.
  3. The Unit Head of CCU should notify CPS Private Office so that the case details can be entered on the CPS Register.
  4. The case will then be allocated to a Prosecutor within the CCU on a cradle to grave basis.
  5. The CCU Prosecutor will review the case in accordance with the Code for Crown Prosecutors.
  6. If a final decision on charge can be made at that point, the relevant Prosecutor must present their decision (either positive or negative) to the Director’s Legal Advisor (DLA) and receive his approval for the proposed course of action.
  7. Once approval has been obtained, the Prosecutor should then communicate the decision directly to Ofsted and the DfE.
  8. If approval is granted under (vi), the SoS for Education will consider whether to grant consent, under section 134 of the Act, to the prosecution.
  9. If this is given, this must be communicated to the CCU Prosecutor before proceedings are instituted.
  10. The CCU Prosecutor will commence proceedings by issuing the written charge and requisition.

If the reviewing Prosecutor is of the view that further evidence should be sought before a charging decision can be made, then they should communicate that directly to Ofsted - with an action plan including dates for further investigatory action so to be completed.

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Consent of the Secretary of State for Education

Pursuant to s. 134 of the Act, the institution of proceedings for either offence is subject to the consent of the Secretary of State for Education. Consent must be obtained before the institution of proceedings once the charging decision has been approved by the Director’s Legal Advisor (DLA). However, it is the expectation that cases will not be referred to the CPS where the DfE anticipates that the consent of the Secretary of State will not be forthcoming.

It is important to note that there is a 6 month time limit for the commencement of proceedings. There is no case law on the point, but it seems likely that the institution of proceedings occurs when the written charge and requisition are issued.

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Discontinuing a prosecution

The decision to discontinue the prosecution is a matter for the CPS alone. However, before making a decision to discontinue a prosecution of a relevant offence, in all but exceptional circumstances where it is not practicable to do so, a prosecutor should:

  1. Consult Ofsted / the DfE with sufficient time to allow a discussion to take place before any such decision is reached; and
  2. Obtain the approval of the DLA for the discontinuance.

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Time Limit for the institution of proceedings

The 6 month Statutory Time Limit (STL) applies. It is a continuing offence but where a school has closed following the inspection, the STL is likely to run form the day of inspection. There is then a need for expedition, as Ofsted must supply the case materials to the CPS in sufficient time for charging, DLA approval and the obtaining of SoS consent before the expiry of the STL. Early engagement is crucial. The following timetable has been agreed with Ofsted and DfE and should be followed wherever possible:

  • Ofsted may obtain early investigative advice by contacting the CPS within 10 weeks of the last date by reference to which it is proposed to charge the offence.
  • No later than at the end of the ten week period, Ofsted will submit case materials, including a paginated index, a case summary and signed statements to the CPS to obtain a charging decision.
  • CPS will provide written advice on charge within eight weeks of the date of submission. Remedial work may need to be carried out during this period.
  • The approval of the Director's Legal Advisor (DLA) will be provided within 2 weeks of receipt of the written advice on charge.
  • The consent of the Secretary of State for Education will be provided within 2 weeks of the DLA approving a decision to charge.
  • The CPS will initiate proceedings by charge and requisition within 2 weeks of receiving the SoS consent.

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Obligation to register the case with DSAPU

Private Office will maintain a register of all cases. The point of contact in the Private Office must be informed on the first occasion on which materials are received by the CPS and should also be notified of:

  • The charging decision
  • Court hearing dates
  • Plea
  • The result of any trial and sentence

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Referrals to the Director's Legal Advisor

When sending a case for approval to the Director's legal Advisor (DLA) the referral should be submitted electronically to the DLA Inbox and the e-mail should contain the following:

  1. The deadline for when a response is required. If it is less than the usual two weeks this needs to be highlighted and it needs to be explained.
  2. The MG3 containing the reviewing lawyer’s charging advice.
  3. A clear indication of whether all the relevant evidence is on CMS or whether a paper file will be submitted separately.
  4. The details of the point of contact/reviewing lawyer and the URN of the case.
  5. Any identified or potential media interest in the case should be clearly highlighted.

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Case Handlers

Ofsted will appoint a single point of contact (SPOC) with the responsibility for the case. They will liaise directly with the CPS Prosecutor assigned to the case for the duration of proceedings. The SPOC will ensure that an identified individual will have responsibility for disclosure and keeping material that may be relevant to an investigation. The SPOC will ensure that the Prosecutor is provided with a disclosure certificate and a schedule of all unused material with the full review file, before a charging decision is made, together with any material that may undermine the prosecution case or assist the defence case.

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Witnesses

Ofsted / the DfE will be responsible for all witness expenses.

Ofsted / the DfE will provide dates to avoid for all witnesses prior to the first hearing of the case.

The CPS will inform Ofsted of the dates of any hearing and Ofsted will then inform the witnesses of the same.

Other useful information

Handbook for conducting inspections under section 97 of the Education and Skills Act 2008

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