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Justice 2 Committee, 27 Nov 2002

27 Nov 2002 · S1 · Justice 2 Committee

Item of business

Criminal Justice (Scotland) Bill: Stage 2

Aitken, Bill Con Glasgow Watch on SPTV

We are going over old ground to some extent, as the committee has debated this matter at considerable length and in great depth. Scott Barrie has been entirely consistent throughout our considerations and I fully understand the strength of his feeling. However, the bill and the proposals that the minister has outlined today do not treat Scotland's parents as responsible.There are interesting aspects of the law of assault. Scott Barrie was correct to highlight the fact that much of the legislation that deals with reasonable chastisement is of some antiquity, but we should examine the Scots common law of assault, the basis of which is not dissimilar to the civil law in respect of what is reasonable. As individuals or collectively, we may have different interpretations as to what is reasonable. However, we should examine the case law. I remind members of the cases that Professor Gane drew to our attention. Few could dispute the inherent common sense of those judgments on what constitutes assault. In almost every case, the courts had found that there was mens rea and that the parent was guilty. That demonstrates that the law is in reasonably safe hands in that respect.Child abuse—whether it be sexual or violent and physical—concerns us all. The minister is correct to point out that the protection of children must be a priority in our thinking, but I suggest that the cases of violent assault that we sometimes hear about are unlikely to be deterred by legislation. They involve people who many of us think should not be in charge or control of young children in any event. It is clear that child abuse is of great concern, but it is equally clear that such people would not be deterred by the bill.If amendment 45 is not agreed to, the bill could criminalise responsible parents. Being a parent is an awesome responsibility. The vast majority of Scotland's parents carry out that responsibility in a manner that is praiseworthy in the extreme. There is a danger that we are legislating for the tiny minority of people who are irresponsible and would not be deterred by the bill or any other piece of legislation.The minister dealt with the circumstances that the court would take into consideration. When determining whether an assault had taken place, the court would also consider the age of the child in question. What would be a minor admonition to a 12-year-old child would severely hurt a two-year-old child. When assessing whether the damage that had been caused was likely to be long-lasting rather than temporary, the court would need to take into consideration the age and maturity of the child.This is a difficult issue. I recognise the feelings that members of the committee have about it—everyone is taking an entirely honourable view. However, the law should not involve itself in situations unnecessarily. In this case, the law is sufficiently robust and firm to ensure that the rights of Scotland's children will be upheld and that the appropriate protection will be in place. The Minister for Justice and others should have confidence in our judicial system. It has worked for an awful long time and there is no reason why it should not continue to work in the future.

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Justice 2 Committee, 27 Nov 2002

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