Meeting of the Parliament 28 May 2019
That comment is, quite frankly, insulting. It makes a fundamental error on a point of law, which is that, in this country, where a defence exists, it is considered by the procurator fiscal in deciding whether to prosecute, so the likelihood of that defence succeeding makes a difference with regard to whether prosecutors decide to prosecute.
We have heard from legal experts, including Pamela Ferguson at the University of Dundee, and Michael Sheridan, who is one of the leading criminal law agents in Scotland, that the change, although it will not create a new criminal offence, will criminalise behaviour that is currently lawful. That means that parents—perhaps not great droves of them—will be prosecuted and subjected to police investigation in circumstances in which they currently would not be.
As I have already said, even the Crown Office and Procurator Fiscal Service which, it can charitably be said, has been reluctant to engage with the bill to date, recognises that challenges will arise when the physical contact is of an extremely minor or trivial nature. Indeed, it is almost impossible to know when the Crown Office or Lord Advocate would consider that the public interest test was met. It will be even more difficult to establish when matters are considered to be sufficiently serious for the police to investigate, and it is not at all clear who will make that decision.
As a parliamentarian, I have deep misgivings about passing legislation in an area as sensitive and controversial as this, and which will give such wide discretion to individual police officers and prosecutors.
When it comes to legislating in statute to remove centuries-old common-law provisions, there is a duty on Parliament to provide absolute clarity and to set out our intentions, and not simply to make big, bold claims and pass on to others the responsibility for taking difficult and legally complex decisions. The failure, in the bill, to set out that clarity is an abdication of responsibility. The bill as drafted is so imprecise that it will fail to improve on the current state of affairs.
What is more, there was confusion among witnesses who appeared before the committee. For clarity, the law of assault does not require a forceful act and there need not be substantial violence or injury; indeed, it can include a slap, tapping someone on the back—