Friday, May 04, 2007

Smoke and mirrors


Pundits hail a political consensus. National and Labour have done a back-room deal on an amendment to the "anti-smacking Bill," and parents apparently no longer have anything to fear. But when the smoke and mirrors are rolled away, the effect of the Bill has not changed. The Bill would still mean that good parents who use mild correction are committing a criminal offence, regardless of whether they are prosecuted.

The amended Bill says that the Police will not have to prosecute "where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution." But immediately preceding this is the statement, "Nothing ... justifies the use of force for the purpose of correction." In other words, parents who use mild physical force for correction, such as a light smack, will be acting outside the law and subject to Police scrutiny, investigation and possible prosecution.

The problems with this proposal are legion. To begin with, we should only call something criminal if it is worthy of prosecution and conviction. This proposal attempts to fudge the issue and falls foul of this standard. It also gives the Police wide discretion and raises the spectre of discriminatory enforcement. The requirement that prosecution be in the public interest may sound reassuring, but different prosecutors will take different views of what it means, and the Law Commission has said that Police have been known to continue with some cases which are not in the public interest. Significantly, the limitation would only apply to Police, not to other government agencies, and not to private citizens, who are able to prosecute for breaches of the criminal law.

The amended Bill is highly unsatisfactory, but seems likely to be passed in just a couple of weeks with almost no scrutiny or debate.

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