The Queen v Nacerdine Talbi, Maryam Bernhardt and Al-Istiqamah Learning Centre Limited [24 October 2018] in the Westminster Magistrates’ Court before the Chief Magistrate
Tuckers Solicitors were instructed in the first ever prosecution in relation to conducting an unregistered independent educational institution, contrary to section 96(2) of the Education and Skills Act 2008. The Crown Prosecution Service were represented by Mr. Louis Mably QC and the defendants were represented by Miss Jessica Jones of Matrix Chambers and Stephen Davies of Tuckers Solicitors.
A person who conducts an unregistered educational institution commits an offence under section 96(2) of the ESA 2008. The offence is committed by a person if:
(1) he conducts an independent educational institution,
(2) which is not registered on the register of independent educational institutions in England.
The applicable definition of “independent school” is therefore set out in section 463 of the EA 1996. An “independent school” is:
(1) a school
(2) at which full-time education is provided
(3) for five or more pupils of compulsory school age
(4) which is not maintained by the local authority
In order to qualify as an independent school under section 463 the institution must be providing “full-time education”.
“Full-time education” is not defined in the legislation.
The circumstances in which an institution provides “part-time education” is, however, specified in section 92(2) of the ESA 2008. Part-time education is education:
(1) for at least 12.5 hours per week in the case of (in effect) a primary pupil, for at least 28 weeks during an academic year, or
(2) for at least 15 hours per week in the case of (in effect) a secondary pupil, for at least 28 weeks during an academic year.
Miss Jones argued in relation to the uncertainty of the legislation and the Department of Education guidance. She contended that an Act which did not provide precision was unfair when there was a criminal liability and any construal of the statute should be drawn as narrowly as possible, applying Lady Hale’s ‘general rule’ in Platt vs Isle of Wight  1 WLR 695 at paragraph 45. The guidance provided by the Department of Education was unclear. She argued the defendants had tried to comply with the 18 hour guidance and if they had fallen short, it was due to a misunderstanding and a guidance which had changed over the years.
The court convicted both of the defendant’s for the offence, stating they had become a “victim of their own success”.