Barry Hughes: Perfectly happy.
Sian Gwenllian AM: Thank you very much. I would like to start just by looking in general at how the law currently stands, and how do you think the law as it currently stands today, and specifically in terms of reasonable punishment—how does that protect children.
Barry Hughes: Sorry, can I just be clear? How does the law as it presently stands protect children?
Sian Gwenllian AM: Yes.
Barry Hughes: We have a range of offences created by the criminal law, going back to the Offences Against the Person Act 1861 in the middle of the century before last, which provide for offences of assault against a variety of people, including, in particular, Acts such as the Children and Young Persons Act 1933, which provides for offences that are specific to children. But the more general criminal legislation, such as the Offences Against the Person Act, does provide specifically for adults and children alike not to be subject to physical assault. In respect of children in particular, you'll be aware that we have section 58 of the Children Act 2004, which does make it a defence for a person accused of assaulting a child to argue that it was a case where they were acting only so as to impose reasonable punishment upon the child. That is a defence that is available for assault upon a child. By way of contrast, it is not available for an offence involving an adult. In that regard, it could be argued that children have fewer rights than adults.
Sian Gwenllian AM: Well, a review was undertaken by the Government back in 2007 that stated that retaining the law in its current form—that that would be the best thing to do because there's no evidence that it's not working satisfactorily. You are suggesting perhaps towards the end of your answer that there could be some change that's happened since 2007.
Barry Hughes: I think the law should reflect contemporary society and the law is evolutionary in nature, and should be evolutionary in nature. And just as if we go back 50 years there are types of behaviour that we might all have contemplated back then as being socially acceptable, many of those types of behaviour are not now, and the law has changed to reflect that. We don't need to go back a very long way to find, for example, that there was no such offence as raping one's married wife, and the law has changed to reflect the fact that that is simply not acceptable. And from what I've seen of the research, and I think back to the 2007 review, to which you've just referred, there is evidence within that review already that opinions are changing. And I've seen research more current than that that suggests that young people find it less acceptable to use reasonable punishment in chastising a child than do people of an older generation. Of course, as we move forward in time, the people who are young now are going to be the older adults of the future. So one would hope that the law will change to reflect the way in which people behave within society.
Sian Gwenllian AM: Okay, thank you. We have heard evidence as a committee that this proposed law would provide a much clearer legal framework—that is, to take out this reasonable punishment defence, that then would make things much clearer for parents and professionals. Does the CPS have a view on that?
Barry Hughes: I think it will make things clearer. I'm not sure it will make them much clearer, because if we get into some of the—. It may be helpful to look at some examples at some stage. And when it comes to prosecuting, it's often the case that things aren't just black and white; there are multiple shades of grey in between. We know that the Children Act did introduce a degree of clarity, in that it removed the defence of reasonable chastisement for offences of causing actual bodily harm, causing grievous bodily harm, causing grievous bodily harm with intent, and various incidents of child cruelty under the Children and Young Persons Act. In that sense, matters were clarified, because up until that point it was not entirely clear. There were a series of Court of Appeal cases that sought to clarify the law, but that was at a time, at the end of the 1990s, the start of the 2000s, when we had the European convention on human rights and we had a quickly developing body of case law. And the Children Act was brought in to reflect the direction that the case law was moving in. A decision was clearly made back then in the early 2000s not to include common assault in the same category as actual bodily harm, grievous bodily harm et cetera. So, there was a decision made back then that it was appropriate to do that. As we wind forward some 15 years, I have seen the research that suggests that some people see that the present legislation, and the way in which section 58 applies to reasonable chastisement for common assault of children—some people have interpreted that as saying that smacking is acceptable. I don't think that it is what it says, but there is a degree of confusion around that. And the reason why I say it's not as simple as that is, going back to my words a couple of minutes ago, it's rarely a case of being black and white; there are these degrees of grey. And removing that defence does make life clearer.
Sian Gwenllian AM: What are the areas of grey that you refer to? Can you give a few examples?
Barry Hughes: If you take an example—so, one of the examples that I've heard discussed has been a child—a young child; let's say a five-year-old child by the side of a road—who darts to go out in the path of moving traffic. The parent grabs hold of the child and pulls them back. Now, technically, taking hold of the child at that point is an assault, because it's an unwanted imposition of physical force. But no-one's going to say that's anything like an assault that should come to the criminal courts. Of course, that would be utter nonsense. There's no hostility; it's simply taking hold of a child to protect them. At that point, the parent then seeks to admonish the child, tells them off and smacks the child on the legs. Now, that would probably be seen under the present law as reasonable chastisement. Probably. But so much depends upon the circumstances, whether this is something that happens frequently with the child, the size of the child, the parent, the force of the slap, the way in which it's imposed. So, that, I would say, sits at one end of the spectrum. As we move towards the other end of the spectrum, we might have repeated smacking, shouting, maybe hitting the child over the head as well. So, there is a spectrum of offending. Towards one end of the spectrum we move much closer towards something that would be criminal in nature. There'll be a point at which it crosses the threshold from something that needs to be reported to the police, and the police would take some form of action, and then, as we move through the tiers, it'll reach a stage where the police think this is a case that should be prosecuted and they would bring it to the Crown Prosecution Service for a charging decision. We would then decide the most appropriate means of dealing with it. And the absolute other end of the spectrum here is one where we decide it's an offence that we think is so serious that it should be charged and brought before a criminal court. That would be very much towards the serious end of the spectrum of the type of behaviour that I've just described to you. Does that help to illustrate that, at one end, it's relatively white and the other end it's relatively black, but in the middle we have the shades of grey?
Sian Gwenllian AM: But that would mean that there could be more prosecutions at the softer end. Because if you're removing this—we'll probably come on to that.
Barry Hughes: Shall I address that in terms—? Okay. So, you are probably aware, but forgive me if I just explain quickly anyway, when we approach a file of material evidence submitted by the police we apply the code for Crown prosecutors, which has a two-stage test. The first stage is whether there's sufficient evidence to provide a realistic prospect of conviction, and the second stage is—. And you only get to the second stage if the first stage is satisfied. If there isn't enough evidence, we don't go on to consider whether it's in the public interest, because we wouldn't put an offence before the courts if we didn't think there was a realistic prospect of conviction. So, we only get on to the public interest stage once the evidential stage is satisfied. So, to return to the point, if we have an offence where, let's say, there is a light smack at the time, the police apply the same code before they bring a case to us. We don't always agree with the police; generally we do, but we don't always agree. It's a matter for them whether they refer a matter to the Crown Prosecution Service. So, if a police officer takes witness statements in relation to that case—the light smacking on the leg—at present it's unlikely that would come to the CPS, because they would look at it and say, 'Reasonable chastisement provides for a defence.' If that defence is removed, then obviously there is a greater possibility that it would be referred to the CPS. I would like to think—and I think this is what will probably happen in practice—that the police would take a view that the evidential test may have been satisfied because the defence had been removed, but it wouldn't be in the public interest to prosecute. It may be that the police decide that it is—it may have been two smacks, three smacks, so it moves towards the end of the spectrum that would suggest that matters are becoming rather more serious. So, it may be referred to the CPS for a charging decision. We would then apply independently the same test, and we would probably conclude that the evidential stage was met in that instance because the defence no longer exists, which takes us on to considering the public interest. In the circumstances that I've described, every case is going to be unique on its own facts, but in the circumstances that I've described, if it is just a light smack and it's a one-off and there's no history of this, it would probably be the sort of offence we'd decide it wouldn't be in the public interest to prosecute.
Sian Gwenllian AM: But isn't it creating a new grey area in terms of the police now having to decide whether repeated smacking is in the public interest to at least refer it to you to decide about that? Do you know what I'm saying?
Barry Hughes: If this Bill goes through, then it will remove a defence, which will make it likely that the police will give this more consideration for referral to the CPS than beforehand, but it doesn't necessarily mean they will refer it, because it will depend on the facts of each individual case.
Sian Gwenllian AM: Thanks.

Summary: Barry Hughes first stated that children had fewer rights than adults and therefore the law should be enforced to defend physical assault. As such social behavior was not available now, the law should change to reflect that. The discussion then turned to talk about the legal framework and its prosecution.