Crown rejects presumption against prosecution of parents in smacking ban laws

Proposed laws to ban the smacking of children should not include a presumption against prosecution for parents, MSPs have been told.

The Children (Equal Protection from Assault) Bill will, if passed, remove the defence of “justifiable assault” in Scots law, which allows parents to use physical punishment on children.

Holyrood’s Equalities and Human Rights Committee wrote to the Crown Office after taking evidence from witnesses on the Bill.

The committee highlighted that some witnesses had suggested the Bill should not mean parents are fined and are instead educated, and MSPs asked if there would be any merit in writing a presumption against prosecution into the legislation.

In a written reply, the Crown Office said: “The Crown would oppose the enactment of a presumption which would necessarily impinge on the exercise of the independent prosecutorial function.”

It said such a presumption would be a “constitutional novelty” and could create a situation which “would be at odds with the structure of our criminal justice system”.

The submission continued: “Such a provision would fetter the prosecutor’s ability to respond appropriately to the particular facts and circumstances of each case, and would be inconsistent with the basic purpose of the Bill, which is to afford children the same protection against assault as adults.

“The application of a presumption would imply that a case which would, on an objective and independent assessment of the relevant public interest considerations, merit prosecution might, in fact, not be prosecuted.

“Indeed, if there were to be a general presumption against the prosecution of parents for assaulting their children that would, presumably, apply equally to cases which would, under the current law, be the subject of prosecution.”

The submission also revealed an estimated 760 alleged assaults by parents or guardians on children were reported in a year, with 468 marked for prosecution.

Of these, an estimated 24 were alleged assaults resulting in severe injury or permanent disfigurement, 20 of which were marked for prosecution.

The figures were based on a review of cases over three months in 2015/16.

The Crown Office said if the Bill is enacted, reports from the police on assaults on children as a form of punishment could increase, and it said it would not be unusual for awareness raising and changes in societal attitudes to result in increased reporting.

However, it pointed out evidence from places where smacking is banned which it said suggests “such a change did not result in a significant increase in prosecutions”, and stressed each case would be considered on its own facts and circumstances.

It said prosecutions would only take place if they were considered to be in the public interest.

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