Crown opposes fetter on prosecution under anti-smacking law

Suggestions of a presumption against prosecuting parents under the proposed anti-smacking law now before the Scottish Parliament have been opposed by prosecutors.

In a submission to the committee examining the Children (Equal Protection from Assault) (Scotland) Bill, the Crown Office & Procurator Fiscal Service states that any such move would "necessarily impinge on the exercise of the independent prosecutorial function", and would "be a "constitutional novelty" that would raise the possibility of the court requiring to adjudicate on the prosecutor’s decision making – "something which would be at odds with the structure of our criminal justice system".

The bill, a member's bill which is supported by the Scottish Government, would remove the defence of "reasonable chastisement" in Scots law from a charge of assaulting a child. Supporters maintain that children should have at least as much protection from assault as adults; opponents argue that it would criminalise and could lead to the prosecution of ordinary loving parents.

The suggested presumption was raised with those submitting evidence on the bill, including COPFS, by Holyrood's Equalities & Human Rights Committee after being raised in some submissions. Parents, it was proposed, should be educated rather than prosecuted and fined.

In its response, COPFS goes on to state: "In any event, 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." It adds that prosecutors are used to assessing carefully the factors relevant in each individual case, "and they can be expected to apply the same careful professional judgment to cases of the sort which the committee has under consideration".

Further, "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."

Asked whether the current law is ambiguous and the bill would provide greater clarity, COPFS replies that the current law is well understood, but it "would not be appropriate" for it to offer an opinion on the approach set out in the bill. The Scottish Prosecution Code would be applied in deciding whether cases were serious enough for prosecution, and diversionary measures would be considered as possible alternatives.

Click here to view the full response.