Guilty or liable?

There is a plethora of ways in which school and college leaders can break the law and risk prosecution, even though they may have no idea an offence has been committed, warns Richard Bird.

All school and college leaders know that they may be liable for damages in civil law. But how easy is it to become labelled a criminal?

Hitting a parent; hurling an intruder down the entrance steps with excessive force; bombarding the chair of governors with obscene emails; these would indeed get you into a criminal court.

However, don't assume that keeping your temper will keep you safe. These offences involve what the lawyers call 'mens rea' - a guilty intent.

In some circumstances, you can be guilty without intent and the hit can come from the blind side.

The recent criminal conviction of the head of a private school where a child jumped down steps and hurt his head illustrates the point. The head was not actually on duty and the child died from a hospital-acquired infection.

The prosecution was brought by the Health and Safety Executive (HSE) and the conviction was essentially on the grounds of having failed to secure adequate supervision.

Power to prosecute

The HSE is one of a number of agencies with the power to prosecute. It is a 'strict liability' criminal offence (that is, no guilty intention is required to prove guilt) to block a fire exit or to block open a fire door or to place combustible materials in a dangerous place, such as under a staircase.

The duty to initiate a prosecution in this case falls to the fire service and the manager of premises, as well as the proprietor, is specifically singled out in the legislation for potential prosecution.

Whether a bursar or deputy with delegated responsibility is the manager of the premises for the purposes of prosecution is a question no one has addressed so far. It would be useful to have this clarified but understandable if no ASCL member wished to be at the heart of the test case.

But what becomes of strict liability if the school is in a dangerous area and insecure fire exits are an invitation to intruders to invade the premises? What if the danger of armed intruders is far greater than the danger of fire?

It does not appear to matter. A school can be prosecuted for averting the greater risk. Hopefully some technical fix will produce a fire door that keeps intruders out and the fire service happy; in the meantime it illustrates the problem.

A head in New York some years ago found himself with exactly that dilemma. He solved it by locking the doors and defying prosecution. He also solved the intruder problem by patrolling the corridors wielding a baseball bat. We could not advise British heads to follow his example in either respect.

Passive offences

There are now over 500 strict liability offences, although most of them are associated with commercial operations or road traffic. Judges, to their credit, have shown a dislike for them.

However, an individual can also be convicted for omissions as well as actions. In common law there may be criminal guilt if there is a gross failure to perform a duty created by statue or contract or a duty you have 'assumed' by your actions if the consequences are sufficiently serious.

Successive education acts have placed new duties on governing bodies. There is a duty, for example, to secure the welfare of children. We do not at the moment know the point at which failure to fulfil these duties may become criminal.

And then there is vicarious liability. A head or principal may not have authorised the locking of fire doors or the parking of a wheelie bin full of paper under the stairs.

S/he may have no idea that the caretaker is storing asbestos tiles for future use in the boiler room but the law assumes that the employer is responsible if the act is committed in the course of the employee's duties.

Collateral damage

Only if the action has no connection whatever to those duties does vicarious liability not apply. This may mean that the blame slides sideways and lands on the governors but it's likely that the head or principal would suffer collateral damage.

The only way to deal with all this is to have a culture of safety, vigilance and whistleblowing. In particular, whistleblowing must not be seen (since we are dealing with criminality) as 'grassing' on colleagues. It has to be seen a way of keeping everyone safe.

Similarly, a member of staff who regularly locks a fire exit should be reminded that it is a disciplinary offence which may lead to dismissal. Doing one's best is not a defence against strict liability but it will at least mean that you may have the sympathy of the court - and it may be needed.