Smacking rules will breach human rights, warns QC

Scottish courts will be thrust into a legal minefield if the Executive’s smacking rules become law, according to a new legal opinion by a leading advocate. Herbert Kerrigan QC says the planned new law is open to a European human rights challenge.

He says the plans are disproportionate and arbitrary and infringe the right to family life, which is protected under European law. His comments are contained in a joint legal opinion produced for The Christian Institute which is published today (download the full legal opinion at:
http://www.christianscotland.org/smacking/legalopinion.pdf).

The Scottish Parliament is expected to debate and vote on the Executive’s plans in two weeks time. Unless amended, the complex new law will ban all blows to the head and all shaking. Whilst this sounds good in theory, there are serious concerns that it could catch ordinary parents for trivial incidents. The danger comes because for these offences the Executive has removed the discretion from the courts and procurators fiscal (PFs).

A mother reported for shaking the arm of her 14-year-old son who towers above her in size has no right to argue a parental chastisement defence. Under the Bill she has automatically committed the crime of “shaking”. In the same way a mother who throws a pillow at her 16 year old son has, under the Bill, used an “implement” and therefore committed a crime.

When it comes to the new “shaking” or “implements” offences PFs and the courts are legally barred from considering whether there was actually any harm or threat of harm to the child. A committee of MSPs raised similar concerns when it considered the Executive’s smacking proposals last year.

The Christian Institute wants to see the outright bans changed to factors which a court must consider. This would allow the courts to exercise common-sense judgements and sort the serious cases from the trivial. Unless the law is amended in this way, it is feared many innocent parents will be prosecuted over petty incidents.

Colin Hart, Director of The Christian Institute, said today: “The legal opinion confirms that the Executive’s plans are arbitrary and unjustifiable. Parents will be plunged into fear and confusion. Innocent parents will get caught in a politically-correct legal nightmare. There is now a real human rights question mark over the proposals. The current law works well to protect children. Unless the Executive modifies its plans innocent parents will be prosecuted and convicted over trivial incidents.”

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For more information contact Colin Hart 0131 226 3555

The Christian Institute, Registered Charity No 100 4774 seeks to promote the Christian faith in the UK
Registered Office: 26 Jesmond Road, Newcastle upon Tyne, NE2 4PQ

Summary of the joint opinion of Herbert A. Kerrigan Q.C. and Paul Diamond on section 43 of the Criminal Justice Bill

The Executive’s proposals are arbitrary

• Under the Bill a parent who commits violent acts can still argue a ‘reasonable chastisement’ defence, but a well intentioned parent who commits trivial acts cannot. The Bill appears to be arbitrary in the way it operates in this respect. “A parent who violently punishes, kicks or 'stubs cigarettes out on' a child, is subject to the general law of assault and the court can consider the defence of 'reasonable chastisement'. However, a loving parent who gives a child 'a clip around the ear', or uses a wooden spoon, or old slipper has no defence.” (Paras. 35 - 38)
  
• Where section 43 is satisfied, “it becomes irrelevant whether i) the child was actually harmed, ii) whether the parent intended harm, or iii) whether the measure taken was necessary in the circumstances of the case.” (Para. 42)
  
• An offence that does not require an intention to harm and that could result in a substantial prison sentence “is likely to be contrary to the convention”. (Para. 46)
  

The Executive’s interference with parental rights is unjustified and intrusive

• There must be an “indisputable imperative” to justify an interference with a Convention right by national law. This is an extremely high threshold. The state must also be able to show that the measure is proportionate and “necessary in democratic society”. Section 43 satisfies neither of these tests. (Paras. 21 – 23 & 25 - 26)
  
• “It is noted that the Scottish Executive has been unable to state a single Scottish case where the law of assault has failed to protect children... It is the belief of those with responsibility that the present law is adequate: the Scottish Police Federation and of the Law Society of Scotland.” (Paras. 27 & 28)
  
• Paragraph 121 of Justice 2 Committee's Report states:-
  “The Executive did not convince the Committee that there was any great uncertainty about the existing law and was only able to point the Committee towards one or two specific cases where there appeared to be inconsistency or inappropriate application of the existing law. No information could be supplied about prosecutions, which might have failed because the existing law is insufficiently clear.” (Para. 29)
  

Corporal punishment is lawful under the European Convention

• The corporal punishment of children is recognised as lawful under the European Convention on Human Rights (ECHR). The ECHR does not impose an obligation on States to criminalise any form of physical rebuke, however mild, by a parent of a child. (Paras. 8 & 9)
  
• Section 43 of the Criminal Justice Bill introduces three categories of methods of disciplining a child that create an “automatic criminal offence”. This “goes beyond Convention requirement and transgresses the Convention rights of parents”. (Paras. 17 & 19)
  Section 43: ‘ambiguous’ ‘anomalous’ ‘arbitrary’ and ‘disproportionate’
  
• “Section 43 in conjunction with the Policy Memorandum appears to create ambiguity as to the exact meaning of the statutory provisions” (Para. 77)
  
• “There appears to be no evidence of that the types of disciplining identified in section 43(3)(b) manifest particular areas of difficult societal problem; to that end, they are anomalous.” (Para. 36)
  
• “…restrictions of methods for ‘disciplining’ children appear arbitrary…” (Para. 35)
  
• The European Court of Human Rights has accepted that “the general criminal law of assault provides sufficient protection for children… any further measures prohibiting corporal punishment are 'disproportionate' … in pursuit of the State's legitimate aim to protect children.” (Para. 82)