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Impact of smacking ban on number of court cases ‘remains to be seen’, MSPs told

Lord Advocate james Wolffe QC was questioned about the proposed legislation.

Lord Advocate James Wolffe said it was not know what impact legislation removing the defence of ‘reasonable chastisement’ would have on the number of prosecutions. (Rebecca Naaden/PA)
Lord Advocate James Wolffe said it was not know what impact legislation removing the defence of ‘reasonable chastisement’ would have on the number of prosecutions. (Rebecca Naaden/PA)

Scotland’s top prosecutor has said it “remains to be seen” if bringing in a ban on smacking will result in an increase in parents being prosecuted for assault.

Lord Advocate James Wolffe QC said the impact of the proposed legislation is still “unknown”.

The law in Scotland allows parents to be prosecuted for an assault on their children, but they can mount a defence of “reasonable chastisement”.

Green MSP John Finnie has brought forward a members Bill to remove this defence from the law, but critics have voiced concerns that such a change could result in hundreds of parents being prosecuted for simply disciplining their children.

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Lord Advocate James Wolffe QC. (Andrew Milligan/PA)

Giving evidence to MSPs on Holryood’s Equalities Committee on the impact the Children (Equal Protection from Assault) (Scotland) Bill would have, the Lord Advocate said: “It is unknown in the true sense whether this will result in an increase in cases being reported or not.

“We do see if there is new legislation and attendant publicity around that that may result in an increase in reporting, partly because attitudes change and people are sensitised to behaviour that they might not otherwise have reported.

“At the same time, no doubt it might have an impact in changing behaviours in another direction.

“So the questions of whether there will be more cases reported is something that remains to be seen.”

There is no “statistical information on the incidence to which the defence is relied on by accused persons in these cases”, Mr Wolffe told the committee.

Anne Marie Hicks, the national procurator fiscal for domestic abuse in Scotland, said an estimated 500 cases a year of parents assaulting their children are currently prosecuted.

“The numbers are small on any kind of reading,” she said.

“That’s within a framework where we have the statutory defence, but even taking that into account the numbers are small and whether there is some increase, we have to wait and see.”

However experience from other countries that have implemented a ban “has suggested you won’t see really significant increases in prosecution”, she said.

If the Bill is passed by Holyrood, Mr Wolffe said he would issue guidelines to Police Scotland on how the change in the law should be applied.

“Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases,” he told MSPs.

He said the Bill would “simplify the law by removing from the law on assault the defence of reasonable chastisement”.

The Lord Advocate added: “As the law currently stands, parents do not have an unqualified right to smack or chastise a child. Subject to the defence of reasonable chastisement, an assault by a parent on a child is a criminal offence.

“Allegations that a parent has assaulted their child are investigated by the police and reported to the Crown and maybe are prosecuted.”

Ms Hicks said: “At the moment we have this available defence, it is only an available defence, it is not a barrier to cases being prosecuted.

“In a sense it just provides clarity that it is no longer a defence to use physical violence as a form of punishment on your children, that I suppose is a clearer statement than what is at the moment, which is it might be and it might not be.”

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