DPP v Best

JurisdictionIreland
CourtSupreme Court
JudgeMrs. Justice Denham,Keane, J.,MR JUSTICE FRANCIS D MURPHY,Lynch, J.,BARRON J.
Judgment Date27 July 1999
Neutral Citation[1999] JILL-SC 072701
Date27 July 1999
Docket Number[1998 No. 519 SS; S.C. No. 261 of 1998]

[1999] JILL-SC 072701

THE SUPREME COURT

Denham, J.

Keane, J.

Murphy, J.

Lynch, J.

Barron, J.

No.261/98
D.P.P. v Christine Best & Anor.
IN THE MATTER OF A CONSULTATIVE CASE STATED FROM THE DISTRICT COURT PURSUANT TO SECTION 52 COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR/APPELLANT

AND

CHRISTINE BEST
RESPONDENT/RESPONDENT

AND

ATTORNEY GENERAL
NOTICE PARTY
Abstract:

Education - Children - Constitution - Duty of parents to educate their children - Rights of children to be educated - Role of State in educating children - Standard of education to be provided - Whether Oireachtas obliged to define "a suitable elementary standard" of education - Statutory Interpretation - School Attendance Act, 1926 s 4 (No 17) - District Court prosecution - Courts (Supplemental Provisions) Act 1961 s 52 (No 39) - Bunreacht na hÉireann

The respondent had been prosecuted in the District Court on a charge that she had failed to secure the attendance of her children at the local primary school and in lieu was not providing a suitable elementary education. The respondent had opted to educate her children at home. In the District Court evidence had been tendered that the children were not receiving an adequate standard of education at home and that the respondent was therefore in breach of the Schools Attendance Act 1926. On behalf of the respondent it was argued, inter alia, that parents had a constitutional right to educate their children at home and in addition that as the Oireachtas had not adequately defined the standard to be applied a successful prosecution could not be maintained. In answering the case stated from the District Court, Geoghegan J in the High Court held that in the absence of a formal definition of the suitable standard of education the respondent should not be prosecuted. On appeal the Supreme Court reversed this decision holding that it was for the District Judge to decide, on the balance of probabilities, whether or not a suitable standard of education was being provided and thereafter to acquit or convict as the case may be.

1

Judgment of The Hon. Mrs. Justice Denham delivered the 27th day of July, 1999.

2

5 Judgments given

3

This is an appeal by the Director of Public Prosecutions from a judgment of the High Court delivered on 31st July, 1998 on a Consultative Case Stated, from Judge Mary O'Halloran, a Judge of the District Court sitting at the District Court at Listowel, pursuant to s.52 of the Courts (Supplemental Provisions) Act, 1961. The terms of the Case Stated were:

4

2 "1. At a sitting of the District Court held at Listowel on the 23rd day of July, 1997, the said Accused Christine Best was prosecuted as follows:- 'that between 7th December, 1995 and 27th June, 1997, at Stacksmountain, Kilflynn, Co. Kerry, in the court area and district aforesaid, she the said defendant, being the parent of William Best and Niall Best, children, not less than six nor more than fourteen years of age, had failed to comply with a warning notice served on her on the 21st day of February, 1997, in accordance with the provisions of the School Attendance Act, 1926, as amended by the School Attendance (Amendment) Act, 1967, requiring her within one week after the service of such warning notice to cause said children to attend school or to give to the enforcing authority for the said area a reasonable excuse for not so doing, contrary to the provisions of the statute in that case made and provided'.

5

2. At the hearing of the said complaint it was proved that the said children, William and Niall Best, did not attend at school on the pertinent dates as grounded in the prosecution.

6

3. It was contended for the accused on aforesaid date that the children, William and Niall Best, were being educated at home by her and she outlined the content of the said education to the Court. She indicated that she would welcome an assessment of the childrens' educational position. The case was adjourned to enable said assessment to be undertaken which assessment was before the Court on 27th January, 1998.

7

4. On the 27th January, 1998, Dr. Padraigh O Donnabhain, District Inspector, Dept. of Education and Science, the author of the Assessment Report, gave evidence in line with said report [a copy of which was attached to the case stated].

8

5. On the evidence as tendered I found as a matter of fact that the children, William and Niall Best, were not in receipt of suitable elementary education of general application viz a viz (sic) the Primary School Curriculum of this State.

9

6. I reserved my decision on the said complaint pending the determination of this Case Stated.

10

The opinion of the High Court is respectfully sought on the following question:-

11

'Whether in view of my findings of fact I am prevented in Law from pronouncing a formal Order of Conviction in view of the fact that

12

(a) The Oireachtas has not to date defined in Legislation what constitutes a suitable elementary education as per Section 4 (2)(b) School Attendance Act, 1926.

13

(b) In view of the relevant provisions of Article 42 of Bunreacht na hEireann ...'."

High Court
14

The High Court delivered judgment on 31st July, 1998. Geoghegan J. pointed out that in this case an excuse was offered by the Respondent, which purported to be a reasonable excuse, which was that the children were being educated at home. The Learned Trial Judge referred to the constitutional right of parents to educate children in the home and the qualification which the Constitution poses in relation to the parents' right. He determined that an education which comes within the description of "a certain minimum education, moral, intellectual and social" must necessarily be regarded as being "a suitable elementary education" within the meaning of the Act. He pointed out that the legislature has not defined in legislation the terms of the Constitution "a certain minimum education". He held:

"In the absence of such legislative or other formal definition, however, I am of opinion that a District Court Judge trying a charge under the 1926 Act and hearing evidence to the effect that a parent is in fact doing his or her best to educate a child at home in the basic essential subjects and taking into account the moral and social aspects of the education as well as the intellectual, should be very slow to find the parent guilty of an offence under the 1926 Act. In the absence of statutory or other formal definition by the State it would be wrong in my view for the District Judge to go into fine details of teaching methods etc. with the result that different District Judges throughout the country might form different views and no parent trying to educate his or her child at home would ever have any security as to whether he or she would have a reasonable excuse or not in the event of a warning notice being served. Such a regime can hardly be viewed as properly to vindicate the prima facie constitutional right of the parent to educate his or her children at home. There is no vindication of that right if there is gross uncertainty.

On the particular facts of this case I am of opinion that the learned District Judge would not be entitled to form a view beyond reasonable doubt that a suitable elementary education was not being provided, having regard to the provisions of Article 42 of the Constitution. I would therefore answer the question posed in that form."

15

The Learned High Court Judge addressed the issue as to whether the inclusion of the Irish language in the curriculum, at least in the case of children not living in the Gaeltacht, is essential or not to comply with the constitutional minimum. He was of the opinion it was not essential to include Irish. Mr. Justice Geoghegan concluded that on the particular facts of this case the Learned District Judge would not be entitled to form a view beyond reasonable doubt that a suitable elementary education was not being provided having regard to the provisions of Article 42 of the Constitution. Pursuant to s.52(2) of the Courts (Supplemental Provisions) Act, 1961 liberty was given to the Director of Public Prosecutions to appeal to this Court.

Appeal
16

The Notice of Appeal set out four grounds of appeal:

17

(i) The Learned Trial Judge erred in law and in fact in holding that if no evidence had been available from an Inspector from the Department of Education the Learned Judge of the District Court would have been bound to acquit the Respondent.

18

(ii) The Learned Trial Judge erred in law and in fact in holding that Article 42 of the Constitution to the extent that it ensured that parents should be free to provide education in their homes or in private schools or in schools recognised or established by the State, meant that the Respondent would have a complete defence to the charge were it not for the provisions of Article 42(3)(2) of the Constitution.

19

(iii) The Learned Trial Judge erred in law and in fact in drawing the inference from the report of the Inspector of the Department of Education annexed to the Case Stated and/or finding as a fact that the education actually being provided for the children of the Respondent was of such a nature or of such a standard as would prevent any Judge of the District Court from finding as a fact that a suitable elementary education was not being provided.

20

(iv) The Learned Trial Judge erred in law and in fact in drawing the inference and/or in finding as a fact that there was no necessity to include the Irish language in the curriculum being offered to the children of the Respondent in order for them to be in receipt of a suitable elementary education."

Submissions
21

Mr. Maurice Gaffney, S.C., Counsel for the Director of Public Prosecutions, submitted that from the statute it was clear: (i) the Respondent was obliged, unless there...

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