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The age of criminal responsibility
Before considering the various legal penalties and sanctions, it is important to clarify the situation in terms of the offender's age. Children under 10 years of age are below the age of criminal responsibility. This means that children under 10 cannot be arrested for or convicted of a criminal offence and, indeed, must be released as soon as it becomes apparent that they are under the age of 10.
Legislation was introduced in 1998 to confirm that children aged 10 and above are on an equal footing with adults so far as responsibility for criminal acts are concerned. Where a child over the age of 10 or a young person or parent has assaulted a member of staff, that individual may be charged with a criminal offence and can be subject to a fine or imprisonment or both (further details of penalties are given below).
Common assault, ABH and GBH
An offence of assault is tried in the magistrates' court, with a maximum fine of up to £5,000 and/or six months' imprisonment.
If there is a racial element to the assault, the individual may be charged with racially aggravated assault under Section 29 of the Crime and Disorder Act 1998. In the magistrates' court the penalty is the same as for common assault a fine of up to £5,000, six months' imprisonment or both. In the Crown Court the penalty is two years' imprisonment, an unlimited fine or both.
If an individual causes serious injury to a member of staff, they may be charged with assault occasioning actual bodily harm (ABH). This is an assault where significant injury has been caused to another, eg extensive bruising, cuts requiring medical treatment, broken teeth or psychiatric harm. The maximum sentence in the magistrates' court is six months' imprisonment, a fine of up to £5,000 or both. In the Crown Court the maximum sanction is five years' imprisonment, an unlimited fine or both. As above, if the offence is racially aggravated, the sanction is the same in the magistrates' court but goes up to seven years imprisonment, an unlimited fine or both in the Crown Court.
Assaults which have more serious physical and mental consequences may be judged to be assaults occasioning grievous bodily harm (GBH), eg broken limbs or injuries resulting in lengthy treatment or incapacity. The penalties for GBH are severe, with the possibility of life imprisonment if the offence is committed with intent. For GBH without intent, the maximum sentence is five years' imprisonment.
Carrying an offensive weapon
The Criminal Justice Act 1988 was amended in 1996 by the Offensive Weapons Act, introduced following the murder of Philip Lawrence, the headteacher of a London school. It is an offence under these Acts to carry an offensive weapon or knife on school premises. This includes all schools providing primary and secondary education but does not include sixth form colleges or colleges of further education (see Dealing with offensive weapons and knives on page 19 for more procedural information about offensive weapons). However, it is also an offence to carry an offensive weapon or knife in a public place without good reason or lawful authority. The definition of "public place" does include a sixth form college and college of further education.
If one of your pupils has or is suspected of having an offensive weapon or knife on the school premises, he or she may be found guilty of an offence under the Act unless he or she has a statutory defence that proves he or she has good reason or authority (eg being an officer cadet). In addition, there are some special exceptions which allow the carrying of knives:
The maximum penalty for a person convicted of carrying a knife on school premises is two years' imprisonment and/or an unlimited fine. The maximum penalty for the more serious offence of possessing an offensive weapon is four years' imprisonment, an unlimited fine or both. Under the Act, the police can enter and search the premises and any person for an offensive weapon without permission from the school, provided they have reasonable grounds to suspect that there may be an offensive weapon on the premises. The police may seize and retain any prohibited item if found during the course of such a search.
Should an assailant be prosecuted and found guilty, the courts have the discretion when sentencing to order a defendant to pay compensation to a victim. Such compensation orders are discretionary and are made by the magistrate or judge. However, the making of such an order is determined by the defendant's ability to pay.
Magistrates can make a compensation order in a youth court and can order a youth to pay up to a total of £5,000 in compensation for any personal injury, loss or damage resulting from the offence.
In the case of a minor, ie a person under the age of 10, the court has the discretion to order the parents to pay. In the case of an offender between the ages of 10 and 16, the order for payment must be made against the parent or guardian. In the case of a youth between the ages of 16 and 18, it is usually payable by the parent or guardian unless the parent or guardian cannot be found, or it would be unreasonable to make such an order having regard to the circumstances of the case.
A compensation order can be made in addition to a fine but, where the parent/guardian or youth has insufficient means, priority is given to making a compensation order. In determining whether to make a compensation order, the court will consider whether the victim has suffered a loss that merits compensation.
Schools and Local Authorities (LAs) can enter into parenting contracts when a child or young person has been excluded on a fixed-term or permanent basis. Although the use of the word "contract" implies that such agreements have a legal status, they are not contractually binding documents.
A parenting contract is a document which contains a statement by the parent or guardian that for a specified period he or she agrees to comply with certain specified requirements, eg an obligation to attend counselling or guidance sessions contains a statement by an LA or governing body that it agrees to provide support to the parent for the purpose of complying with those specified requirements.
ATL believes that parenting contracts may prove useful in attempting to prevent repeat misbehaviour. Whilst the school itself can take steps to address pupils' difficult behaviour, ultimately family influence is vital. Focusing parents' attention on management of the pupils' behaviour may serve to encourage greater parental responsibility. ATL considers that the parenting contract must be coupled with guidance and support from third parties, eg an appropriate representative from social services or a counsellor. This balanced approach is important. Should the parenting contract be perceived as in any way punitive, this is almost certain to have a negative impact on both family and pupil.
Prosecuting abusive parents
Under the Local Government Act 1972, the LA can prosecute (or defend proceedings where necessary) in order to promote or protect the interests of the inhabitants in its area. Potentially, this means the LA can commence criminal or civil proceedings against an abusive parent.
A parenting order is an order made by the civil courts against the parent or carer. It compels the parent(s) to address their child's poor behaviour and to prevent the child from committing any further criminal offence. Parenting orders are used to gain compliance from parents and will often contain specific requirements to help curb the anti-social behaviour of the children in their care and to help them become better parents. Firstly, the order will require that the parent or carer attends counselling or guidance seminars. Secondly, a discretionary element is included which requires the parent or carer to exercise control over their child's behaviour.
The LA is responsible for parenting order applications and also bears the costs of making the application and of the parenting programme. An LA may seek a parenting order if a pupil is excluded for serious misbehaviour. The exclusion may be permanent or the pupil may have received more than one fixed-term exclusion within a 12-month period.
Serious misbehaviour will include continual disruptive behaviour in the classroom, threatening behaviour, verbal abuse, assault (including sexual assault), damage to school property, theft, supplying an illegal drug or carrying an offensive weapon or replica.
For information on criniminal prosecutions, civil law (damages and injunctions), reparation orders, tresspassing offences, anti-stalking legislation, and ASBOs please refer to ATL's publication Violence, threatening behaviour and abuse.
Help and support
For further advice on this issue, ATL members can speak to their school rep, their branch secretary or their regional official. They can also call the London (020 7930 6441), Cardiff (029 2046 5000), Belfast (028 9078 2020) or Edinburgh (0131 272 2748) offices or email email@example.com
For out of hours enquiries, call the out of office hours helpline on 020 7782 1612 (Monday-Friday, 5-8pm during term time).
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