Publication - FOI/EIR release

Physical punishment for children: prosecutions and convictions: FOI release

Published: 22 Oct 2018

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
22 Oct 2018
Physical punishment for children: prosecutions and convictions: FOI release
FOI reference: FOI/18/02643
Date received: 25 September 2018  
Date responded: 22 October 2018
 
Information requested
 
You asked “how many arrests, prosecutions and convictions have taken place in Scotland specifically in connection with section 51 of the Criminal Justice (Scotland) Act 2003 since it was introduced and what the Government’s prediction of this was when this legislation was being considered”.
 
Response
 
  1. While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. The reasons why we don’t have the information are explained below.
  2. Some of the information you have requested is available from http://www.parliament.scot/S1_Bills/Criminal%20Justice%20(Scotland)%20Bill/b50s1en.pdf

This weblink provides the Explanatory Notes to the Bill which led to the 2003 Act and other accompanying documents. On expected numbers of prosecutions and convictions arising from the provisions which became section 51 of the 2003 Act, paragraph 403, on page 68, said:

“It is not expected that changes to the law on physical punishment of children will lead to substantial increases in numbers of prosecutions and convictions for assaulting children.”

5.         Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.
  1. You may also find it helpful to see material on the Parliamentary passage of the Bill which became the 2003 Act, as points were raised then on potential number of prosecutions. Relevant material is:
  1. The provisions on physical punishment of children in the Bill as introduced in 2002 are different to the provisions which were enacted in the 2003 Act. The Bill as introduced is at http://www.parliament.scot/S1_Bills/Criminal%20Justice%20(Scotland)%20Bill/b50s1.pdf  (see section 43).  The legislation as enacted is at  http://www.legislation.gov.uk/asp/2003/7/section/51  In particular, the Bill as introduced contained a provision on the physical punishment of children under the age of three. Following amendments made by Parliament, that provision was not included in the legislation as enacted.
Reasons for not providing information

The Scottish Government does not have the information.

Number of assaults, prosecutions and convictions in terms of section 51 of the Criminal Justice (Scotland) Act 2003 since introduction

The Scottish Government does not have the information you have asked for. Section 51 of the Criminal Justice (Scotland) Act 2003 did not create a specific new offence. Instead, it made changes to a defence to existing criminal offences. As a result, there are no arrests, prosecutions and convictions which relate specifically to section 51.

More details of the changes made by the 2003 Act can be found in the text of section 51 https://www.legislation.gov.uk/asp/2003/7/section/51 and in the Explanatory Notes to section 51  https://www.legislation.gov.uk/asp/2003/7/notes/division/2/7/1

The Scottish Government does have data on the total number of proceedings and convictions for common assault from 1989-90 to 2016-17. This data is attached. However, the offence of common assault covers a very wide variety of behaviours and so it is not possible from these figures to reach a view on the impact of section 51 of the 2003 Act. Data held by the Scottish Government in relation to the number of assaults is not broken down to enable information to be provided on the number of assaults on children by their parents, their guardians and other persons with care or control of those children.

Decisions on prosecutions in Scotland are taken by the Crown Office and Procurator Fiscal Service, under the direction of the Lord Advocate.  

Prediction of number of arrests in connection with section 51 of the 2003 Act.

As indicated in the main body of the response, paragraph 403 of the Financial Memorandum for the Bill which led to the 2003 Act said that “It is not expected that changes to the law on physical punishment of children will lead to substantial increases in numbers of prosecutions and convictions for assaulting children.”

However, we have not found any predictions which specifically mention number of arrests. There are no predictions which specifically mention number of arrests in:

https://lx.iriss.org.uk/sites/default/files/resources/052.%20The%20Physical%20Punishment%20of%20Children%20in%20Scotland%20-%20A%20Consultation.pdf (A consultation issued by the Scottish Executive Justice Department in February 2000).

http://www.parliament.scot/S1_Bills/Criminal%20Justice%20(Scotland)%20Bill/b50s1pm.pdf (The Policy Memorandum for the Bill which led to the 2003 Act – paragraphs 208 to 231 relate to the physical punishment of children).

http://www.parliament.scot/S1_Bills/Criminal%20Justice%20(Scotland)%20Bill/b50s1en.pdf

(The Explanatory Notes to the Bill which led to the 2003 Act and other accompanying documents - paragraphs 240 to 256 and paragraphs 403 to 406 relate to the physical punishment of children).

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.  

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