Lynne Neagle AM: Okay. Okay, thank you. We've got some questions now specifically on prosecutions and potential alternatives from Vikki Howells.
Vikki Howells AM: Thank you, Chair. You've already touched quite a bit on the issue of the public interest test. Is there anything else you'd like to put on record about the factors that the CPS would be taking into consideration when applying the public interest test in respect of this Bill?
Barry Hughes: Can I give you an example, which might illustrate the way in which things could be different? This is one, which—I give credit to Iwan for this, because he thought of it. If we take an adult with a small child—say, a four-year-old—in a supermarket, and the child is pulling cans off the shelves, it's quite annoying, and they keep doing it and keep doing it. The parent remonstrates, and the parent ends up finding that verbal admonishment is inadequate, and smacks the child lightly on the legs, which does the trick and the child stops. Presently, if someone in that supermarket were to report that to the police, I think the police would probably conclude that that is covered by the defence of reasonable chastisement. In other words, the evidential stage wouldn't be passed; you don't get on to consider the public interest. But if we have that same parent in there the following week, and you have the same happen again, presently, the defence would apply. Now, there comes a point in time when the defence stops applying. If that defence didn't apply at all, and we had a sequence of three offences, the public interest test would kick in, if I may put it like that, pretty quickly, because it would be repeated behaviour. So, that would be the distinction between how things are now and how they would be in the future, because the defence would not be available, so the public interest test would then come to the fore that much more quickly. So, when we apply the public interest test, the essence of it is about proportionality, and trying to come up with an approach that is proportionate to the offending. We look at the age of the offender, the age of the victim, we look at the circumstances, we look at the impact upon the victim, we look at the impact that's likely in relation to the suspect, and there is, within the code, a long list of matters that we take into account. Some of them are fairly obvious, such as previous convictions. If someone's got previous convictions for doing something wrong, it's more likely they're going to be prosecuted the next time. But there's no part of the law that says that prosecution will always follow. Mostly, it's reasonably obvious; the more serious an offence, the more likely you are to be prosecuted.
Vikki Howells AM: Thank you, that's really useful, and—
Lynne Neagle AM: Just before you move on, can I ask you a question? This morning the committee was meeting with groups of parents who are opposed to the Bill and groups of parents who are for the Bill, and one of the parents this morning was querying where the interests of the child would come into the public interest test. Now, I've looked at the code and there is a section about impact on the victim. Can you just clarify for the record how the best interests of the child would be taken into account in considering whether to go forward with a prosecution?
Barry Hughes: Normally, if there were an assault by someone else upon a child, outside the family, we would tend to take views from the parents of that child. In circumstances where both parents, arguably, are the suspects, we probably wouldn't be asking them. We would find another way, and we would talk with the police to ensure that we are informed about how the child feels about what has happened. It may be that there are—. I can foresee real difficulties in circumstances where we have parents who are separating where the children are being used, effectively, in divorce proceedings, for example, where we might have one parent saying there was a really bad impact upon the child and the other parent saying there wasn't. We'd want to find a way to cut through that to work out really from the police how does the child feel about that. So, we would tailor it to the circumstances of the particular incident to assess how the child feels about it. It's not determinative, nor is it determinative in cases where we prosecute for adult defendants inflicting some form of assault upon adult victims. It's not determinative but it is a factor that we take into account.
Lynne Neagle AM: Okay, thank you. Suzy, you've got a supplementary on that.
Suzy Davies AM: Yes. In the same session this morning I thought this was an interesting question raised by a parent, on the rights of the child side of things, where if a parent offers a child two forms of punishment because that child has done something that they know they shouldn't have, and they're given the option of, 'You can have a quick smack and a cwtch, or you're going to your bedroom for quarter of an hour', and the child is allowed to choose and the child chooses the smack, what happens then? I'm not offering any views on the fact that this choice has been given, but it was put to us today about how would that fall in the law once it were changed.
Barry Hughes: That's a really interesting question. There is a body of law that—
Suzy Davies AM: A child can't consent to assault.
Barry Hughes: Yes, you can't consent to a serious assault, apart from in certain—. The law is really quite difficult. So, for example, tattooing is a serious assault on one level, but you can consent to a tattoo. I can think of one case where a man branded his initials on a woman's buttocks, but she consented to it and the Court of Appeal held that they could consent to that. I can also think of a series of cases, which I won't get into here, that involve sadomasochistic behaviour between adults, some of which was really serious, and involved people willingly applying themselves to things that no sane person would do. And the Court of Appeal in that case, a case called Brown, said, 'No, that's going too far—you can't consent to that.' Then, you may have seen there was a case from the midlands recently where a gentleman operating a tattoo parlour was also involved in body surgery—splitting people's tongues. That went too far as well. So, there is again—I referred before to the spectrum of offending, and there is a clear spectrum of offending that you can realistically consent to and then you get to offending you can't consent to. So, the law has considered that in some depth. I'm still not entirely clear, and I speak as a lawyer. When it comes to much lesser assaults, the law is more unclear as to what you can consent to.
Suzy Davies AM: Yes, because we're talking below a certain standard here as well. Okay.
Barry Hughes: As to what you can consent to, it's less clear. It would need to be developed.
Suzy Davies AM: Okay, thank you for that.
Lynne Neagle AM: Thank you. Vikki.