Head teacher's are not investigators under PACE
Director of Public Prosecutions v G (Duty to investigate)
(1997) The Times, November 24QBD
The Facts
G was doing supply teaching at a school. He was teaching a class of 10 and 11-year-olds. A male pupil rocked his chair and was told by G on a number of occasions to stop that activity. Fearing the chair would over-balance G put his hand on the boy's neck and pulled him off his chair and on to the floor.
That incident was partially witnessed by a parent waiting outside the classroom who contacted the head teacher immediately. The head teacher went straight to the classroom where she found the pupil on the floor weeping.
The head teacher "interviewed" G and asked him to give an account of what had happened. The head teacher made jottings of what G had said and wrote those "jottings" up into a statement five hours later. An information was laid against G for assault.
The question before the court was whether a head teacher was a person "charged with the duty of investigating offences or charging offenders" under section 67(9) and therefore bound to apply the provisions of Police and Criminal Evidence Act 1984 (s.66) Codes of Practice.
The prosecution submitted that a head teacher had a duty to investigate incidents which occurred at a school but there was no evidence of any contractual or legal duty to investigate offences. They cited R v Smith (W. D.) [1996] 2 Cr App. R 1; Joy v Federation against Copywrite Theft Ltd [1993] Crim LR 588 and R v Twaites (1990) 92 Cr App. R 106; [1990] Crim.L.R.863; (1990) The Times, April 16. (Twaites was a case of a commercial investigator employed by a company to investigate possible crimes committed by its staff)
Counsel for "G" submitted that sections 22 and 41 of the Education (No 2) Act 1986 imposed statutory duties upon head teachers to investigate incidents and offences happening at a school.
The court held that the statutory provisions of the 1986 Act did not persuade them that a head teacher had any duty imposed upon him sufficient to make section 67(9) of the 1984 Act apply.
The answer in reality to any question of unfairness in any interview could be dealt with by section 78 of the 1984 Act. A head teacher was not a person charged with investigating offences or incidents which might arise in a school. The magistrates proceeded on the wrong basis.
LORD JUSTICE BROOKE said that on the particular facts the head teacher was not "charged with investigating offences" under section 67(9) of the 1984 Act but that each case would depend on its particular facts.
The Decision
A head teacher was not a person "charged with the duty of investigating offences or charging offenders" under section 67(9) of the PACE Act 1984.
The Court so stated in the course of dismissing an appeal by the prosecution by way of case stated against the acquittal by Justices of G, a teacher, of common assault. The justices had found that a head teacher of a junior school was within the ambit of section 67(9) of the 1984 Act and should therefore have cautioned G prior to questioning him about a classroom incident.
Comment
This suggestion that some head teachers may under some circumstances be charged with such a duty is nebulous, head teachers are not "investigators", what was needed was a clear statement from the full court - this decision still leaves an element of doubt that needs to be clarified by the Court of Appeal at the first opportunity. If it is to be the case what are the circumstances, at what stage does a Head Teacher don another hat and place himself under a duty?
Questions arise; when may he resume the mantle of Head again and revert to his real duty - a duty to show loyalty to his staff who will probably be doing their best under difficult circumstances.
It would appear that Lord Justice Brooke by stating as he did, "that each case would depend upon its particular facts", would wish to leave an opening whereby under some circumstances a head teacher could "be charged with a duty of investigating offences".
The Royal Commission took the view that the codes should also apply to persons who are not constables who do a similar job, Report, Para, 4.135. Zander, The Police and Criminal Evidence Act 1984, 2nd Edition quotes from a letter from the Home Office, Alan Harding, Police Review, 22nd Jan. 1988, p185 where the Home Office view was that of using the words of the judges rules, Section 67(9) of the act does not change the position hitherto, that charged with the duty means charged by law with the duty. This refers, for example, to L.O.A., or Central Government Officers such as DTI Inspectors.
In R v Director of Serious Fraud, ex parte Saunders [1988] Crim. L.R. 837 it was held that the codes apply to officers of the Serious Fraud Office.