News Release

Sunday, 31 October 2004

Top lawyer says new smacking law will be a lottery for parents

Parents will be plunged into fear and confusion if a planned change to the smacking law is approved by MPs this week. A leading criminal lawyer says the plan, which removes the ‘reasonable chastisement’ defence in some circumstances, will lead to an inconsistent application of the law.

Roy Amlot Q.C. has produced a legal opinion on the effects of Lord Lester’s amendment to the smacking law passed by the House of Lords in July. The opinion says some parents who smack may be prosecuted for actual bodily harm and other parents who acted in exactly the same way will not. MPs are set to debate the proposed change to the law on Tuesday (2 November). MPs will also debate a complete ban on smacking.

The opinion points out that private prosecutions, which ignore CPS rules, could be brought against parents. The Institute is concerned that organisations that want to ban smacking could exploit this loophole. A summary of the legal opinion is given below. A complete copy of the legal opinion is included with this press release.

Speaking today (Sunday) Colin Hart, Director of The Christian Institute, said:

“This legal opinion shows that parents will be thrust into fear and confusion. If the planned change to the law goes ahead, parents will be at the whim of politically-correct prosecutors and anti-smacking zealots. There have clearly been a number of cases of parents being falsely accused of child abuse simply for using ordinary smacking. That can only get worse if this change to the law is approved by MPs. There is no evidence that the current law is a problem, it is firm enough to protect children and fair enough to protect parents.”

The Lester amendment (Clause 56)

Lord Lester’s amendment to the Children Bill (now Clause 56) throws the law on smacking into confusion.

The ‘reasonable punishment’ defence currently stops parents being prosecuted for ordinary smacking. Lord Lester’s amendment removes this defence in some cases but not in others. The Government says it still permits ordinary smacking. Some aspects of the amendment cause no problem but at its heart is a massive confusion. It attempts to restrict parental action, but purports to protect ordinary smacking. To do this it wrongly assumes a clear dividing line between common assault (where the defence will still be available) and assault occasioning actual bodily harm (where it will not).

The approach taken by the amendment was rejected by the Crown Prosecution Service in 2000 as unworkable. Mr Amlot QC was asked to consider the implications of the amendment. He confirmed that the new law could be inconsistently applied.

Summary of the opinion of Roy Amlot QC

Prosecuting ordinary parents

Under clause 56 “…a parent who commits a minor battery on his or her child – for example, a quick smack in a supermarket while the child is throwing a tantrum – will be guilty of a criminal offence if the smack causes actual bodily harm, such as tenderness.” [para.11]

Assault occasioning actual bodily harm (ABH) is punishable by up to five years in prison [para. 7]. It covers “any hurt or injury calculated to interfere with the health or comfort” of the victim. This includes causing tenderness [para. 9].

In addition to Clause 56, the Director of Public Prosecutions intends to issue revised charging standards which mean that, where a parent smacks a child causing tenderness, it will normally be charged as ABH [paras 15, 16 & 24].

Causing fear and confusion

“Different prosecutors, faithfully considering the standards, may take different views on the same facts; and accordingly, there is a possibility that where in one case a parent is charged with battery [where he may rely on the reasonable punishment defence] in another case, a parent who has in all material respects acted in exactly the same way will be charged with assault occasioning actual bodily harm [where he may not rely on the reasonable punishment defence].” [para. 17].

In many instances, prosecutors may consider applying the public interest test and decide not to prosecute a parent for a quick smack in the supermarket, but “the public interest test is unlikely to prevent the prosecution of such cases altogether” [paras 20-21].

In addition, individuals are free to bring a private prosecutions [para.21] (possibly funded by an anti-smacking group such as the NSPCC).

All this will result in a great increase in the number of prosecutions. Prosecutors and courts will be adjudicating on private family life. The scope for false allegations will be massively increased, and anti-smacking groups will be able to bring private prosecutions which, even if they fail, will create widespread fear amongst parents.