 Braw장님, i du. Welcome to the fifth meeting of the Equalities and Human Rights Committee for 2019. I ask that all mobile devices be switched off and put away please. We have apologies from Annie Wells, who I welcome Alison Harris and also apologies from Mary Fhee, her welcome Roda Grant. John Finnie the member in charge of the bill is joining us this morning as well, you're welcome? Agenda item 1 is a decision on taking items 3 and 4 in private. The rules ARE considered Diolch i drwycaniadau wrth gynradd aethol ac dru sydd wedyn fynd i stukgwch gwaterfyn roeddeitwm nidws iddyn nhw ar draws 2020-21 ont i fill Guide for Saints and Communities Built in the Undersecretary of the autistic systemתio a chmwythau ar� iawn a uweithio. Eitd typ y gwrthus, pub mnie sefydlu yn teimlo yn ieddaig yr cynutodau cyfrwyng Ffisigol on correspondent â i proves Padd bullying Llethal H On Yar, arir ythatill, esi anffin iddyn ni siw� Thefts Talk Br hoe TFG, shortages penwetsiw pethau yn ddechrau'r cyfnod prifodol i gyd. Felly, I'm very grateful for the invitation to come and give evidence, again to the committee, as head of the system for the investigation and prosecution of crime in Scotland and to supplement the written evidence that you've already received from the Crown, Office and Procurate Fiscal Service. The bill that you have under consideration will simplify the law by removing from the ond o'r defnyddio o ladegrifennu cy Lordau a bydd yn imbrydu leisio 51 o fightersaidd 2003, fel dyma o ddisgol ei ddifennu. Mae bydd eu lleol o'r ddechrau sy'n gweinidol hefyd, ond ond mae'r ddechrau fel amgylchedd yn ynchwybodol ar gyfer maenig i gweithio i'r rhfodol cyryffinddolion rhagorau. Ddechreu i ddifnyddio'r defnyddio cyryffinddolion rhagorau a ddifnyddio i ddifnyddio i'r rhwng hyd y troenol cyhofidol. those allegations that a parent has assaulted their child are investigated by the police and reported to the Crown and maybe and are prosecuted. When considering any report of an alleged crime, the prosecutor must address two things. First, whether there is sufficient admissible, credible and reliable evidence that the accused has committed a crime known to the law of Scotland. And secondly, if there is sufficient evidence, what action of any would be in the public interest. those considerations apply to an allegation that a parent has assaulted their child, just as they apply in any other case. The Scottish prosecution code sets out the factors that may, depending on the circumstances, be relevant in assessing the public interest. Those include the nature and gravity of the offence, the impact of the offence on the victim and other witnesses, the age background and personal circumstances of the accused, the age and personal circumstances of the victim and other witnesses, the attitude of the victim, the motive for the crime, the age of the offence, mitigating circumstances, the effect of the prosecution on the accused and the risk of further offending. The code points out that the actions available to prosecutors are not limited to prosecution. They include diversion, a formal warning and various direct measures, which a prosecutor may offer as an alternative to prosecution. In appropriate circumstances, it may be in the public interest to take no action. Making decisions within the framework of the Scottish prosecution code is part of the daily work of professional prosecutors. If the bill is passed, cases that are reported to the Procurate Fiscal will continue to be assessed by reference to the two tests that I have mentioned. Is there sufficient evidence and law that the accused has committed a crime? And if so, what action would be in the public interest? Repeal of the defence of reasonable chastisement would not mean that the prosecutor would ignore the special features of the relationship between parent and child. Those features will be present in any consideration of the public interest, for example, in consideration of the context and circumstances of the alleged offence, the impact on the victim, the circumstances of the accused and the effect of a prosecution on the accused and the victim. Paragraph 40 of the UNCRC General Comment 8 of 2006 reminds us that, whilst all reports of violence against children should be appropriately investigated, it does not follow that all cases which come to light should be prosecuted. If the bill is passed, I intend to issue Lord Advocate's guidelines to the Chief Constable of Police Scotland on the investigation and reporting of allegations of assaults by parents on children. Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases. A response which may include where appropriate the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution, whilst at the same time enabling prosecution where that is properly justified by reference to the circumstances of the individual case. The approach will be informed by our responsibility to protect children from harm and by our consideration of the best interests of the child. I am confident that, if the bill is enacted, Scotland's prosecutors will continue, as they do today, to apply sound and responsible judgment to the cases that are reported to them, consistent with the values that underpin all prosecutorial decision-making, impartiality, thoroughness, integrity, sensitivity and professionalism. Thank you. That is very helpful. We will move to questions from the committee now. Oliver Mundell. Thank you, convener. I start by putting on record my thanks to Lord Advocate for attending today and I am pleased to hear that there will be Lord Advocate's guidance in the event that the bill passes. I was interested to mention the legal relationship between parents and children. I just wondered whether you would go as far as recognising that it is different and distinct from that of two adults, even where those two adults are connected. One of the things that one learns as a prosecutor is that every case has to be considered on its individual facts and circumstances. In all the decision-making that prosecutors undertake, prosecutors have to look carefully at the specifics of particular facts and circumstances. When one is dealing with a case involving an alleged assault by a parent on a child, of course the fact that one is dealing with a parent on a child is one of those circumstances. We, of course, have the statistics. We see assaults by parents on children and where a parent assaults a child and the public interest justifies it, then those cases are prosecuted. I guess that I am asking whether there is a different, in-law, a recognised different relationship between parents and children than there is between two adults. Is that correct? Well, there are legal aspects of the relationship that are particular to that relationship, and it is a factual context that is different from other relationships. Yes, I am interested in what responsibilities the law places on parents and what rights it can exercise in relation to its children. I do not think that it would be right for me to give you a general exegesis on the law of parent and child. We are in a context where parents have responsibilities in relation to their children and have certain rights with a view to promoting those responsibilities. As prosecutors, what prosecutors will look at is what is the evidence in any given case. Does the evidence support the conclusion that a crime has been committed and if a crime has been committed, what looking to the very particular circumstances of a particular case is the appropriate action to take in response? I will bring in one more specific on that point. I just wonder whether they would take the statutory rights and responsibilities that are set out in relation to parents' consideration when deciding whether or not it is in the public interest to prosecute cross-reading across different pieces of legislation? The responsibilities of parents for the upbringing of their children do not justify parents in committing crimes against their children. Thank you very much. Good morning, Lord Advocate, and good morning to your colleague as well. I just want to follow on from Oliver Mundell's line of questioning. Oliver was trying to bottom out exactly where in statute that relationship between parents and children is defined. I had an intervention by Modo Fraser that you might have seen in the stage 1 debate around that, where he said that if you were to apply parenting techniques to another adult, for example, grounding them or removing something that they valued as a sanction, that that would be seen as abusive or not appropriate. I suppose that if you have a duty of care to the person in your charge, as an apparent has to their child, you could also say the same for an elder relative who has Alzheimer's in a mental age or mental capacity of a three-year-old. Is there a legal framework for the rights and responsibilities of people who have a duty of care? Is it different between people who care for their children and people who care for adults within capacity? As a generality, the legal framework differs. As prosecutors, what one is looking to is what does the evidence disclose. Does the evidence disclose an attack on the person of another with deliberate intent? If that is what the evidence discloses, what does the public interest demand by way of a response and, into that latter public interest question, all the relevant facts and circumstances of any case, whether it is involving a parent and a child or a vulnerable older person, will be taken into consideration? Can I ask a very brief follow-up on that? Something that has come up time and time again in our consideration in stage 1 of the bill is that it is slight incongruity that an adult responsible for a child and an adult responsible for another adult who has a mental age of a child has different parameters to work within. You would not believe for a minute that an adult could exercise the defence of reasonable punishment if they were sanctioning an adult with a mental age of three. Do you think that that is incongruous? Well, it is the current state of the law and what the committee is considering is whether the law should be changed. Prosecutors operate within the law as Parliament lays it down from time to time. Can I just ask you to mention that parents are currently charged with assault and prosecuted for that? Can I ask if the defence of reasonable justisement is used or are those offences so severe that nobody could use that defence at the moment? The offences cover a wide range. I did ask for some illustrations and have been given examples that cover the wide range from cases that were dealt with ultimately. Although the prosecutor was satisfied that there was an assault in law with a decision to take no further action, cases in which options other than prosecution were taken all the way up to some of the most serious cases that we see. We already see prosecutors as a wide range. Under the current law, it may be important to separate out the stage of investigation and prosecution. Under the current law, in order to consider whether or not the defence is available, our case of an assault on a child would require to be investigated in order to assess whether, in all the facts and circumstances, that defence is one that could properly be made out. I do not have any statistical information on the incidents to which the defence is relied on by accused persons in those cases or, indeed, in the context of prosecutorial decision making, but I do not understand anything that you would like to add from your experience. Although it is easier for us to find the cases where they involve an assault on a child by a parent or someone with care or charge of the child, it is not necessarily easy from that to see the cases where someone might have tried to assert the defence, but certainly looking at some of the cases that we have, there is quite a number of them where the incident occurred in the context of an assault by way of punishment for something that they perceived that the child had done wrong. It was a case where someone thought that the child had been lying or had come home late, one case where they thought that the child had stolen money from a purse. It is clear that in the cases that are reported, we receive a range. Some of them are in the context of direct violence without a punishment element, but there are definitely cases that are reported where the account given is punishment for something that the child is deemed to have done wrong. I wonder if you think that there is a public interest to prosecute a parent for smacking their child or using physical punishment where there are no child welfare concerns and where it is clear that the action resulted in no lasting pain. Are there tests that could be put into the bill or that would form part of your guidance that would give parents absolute clarity as to what it was that you felt sort of amounted to criminal intent? I think that I need to go back to what I said a few moments ago, which is that in this context and in many contexts, there is no substitute for a very close attention to the facts of particular cases. Conduct that, in one context, might look relatively trivial or minor, in another context might carry a much more serious significance. I am not trying to be unhelpful in not being drawn on responding to particular scenarios. What I can say is that the kinds of considerations that you have mentioned will be considerations that will be taken into account by prosecutors in considering any particular case. Going back to my opening remarks, among those considerations will also be questions of our responsibility to protect children from harm and a recognition that we have to take into account the best interests of the child in the round among the other factors that need to be considered by prosecutors. In relation to the Lord Advocate's guidelines that I am minded to issue to the chief constable and which I should say are currently in discussion with the police about those, I anticipate that those will seek to articulate the considerations that the police might have in considering whether it is necessary for them to report a particular case to the fiscal rather than taking other action. With all due respect, when Parliament chooses to legislate for things in the statute, is it not normal to at least put some parameters or tests on the face of a bill, as we have seen when it came to legislating for domestic abuse? If you feel that there is a need for guidance and a need to set out some of those tests for police, is it not better to put, for example, something as broad as the best interests of the child on to the face of the bill? Would that not make better legislative sense and make things clearer for parents, for police and easier for you to operate? The premise of the question is that the law of assault is unclear. The law of assault is applied day and daily by police officers and by prosecutors, and there are not problems with the clarity of the law. At the same time, and indeed, there is a case that can be made that the removal of the defence with the qualification that currently applies to it increases the clarity of the law. In terms of the framing of guidelines, I issue Lord Advocate's guidelines to the police on a number of matters. For example, the framework in which the police may issue recorded police warnings is something that I define for them by giving instructions as to when cases must be reported. There is nothing particularly novel or unusual in the idea of giving a framework in which the police may act. I should say that it is a feature of our system of law that the police are not obliged to report every crime that they report within parameters that I lay down, and prosecutors are not obliged to prosecute every crime. Prosecutor's responsibility is to take the action that is appropriate in the public interest in any given case. I have a couple of full points, so if that is okay to pause you at that point, I will come back to you. Fulton Fulton, thank you very much for attending today. I have really welcomed the report that you have provided to the committee and I thought that it was very helpful for stage 1 deliberations. Based on what you have said in your opening statements and some of your answers to Alvernon Dale, what I would like to try to use out is what would be the difference if an allegation of a child has been smacked to a physical force used on a child? What would be the difference the day before the bill comes into law and the day after for your team? I suppose that the starting point is that—let's start with the question of investigation—the matter must come for something to happen. It has to be brought to the attention of the authorities, brought to the attention of the police. Today, if an allegation were made that a parent had assaulted a child, the police would require to investigate that. They would be investigating it within the framework of the current legal regime. They would, in appropriate circumstances, report the matter to the fiscal. The fiscal would assess the evidence that is available. Is there evidence that a crime has been committed? Is there sufficient evidence in law if there is, what is the public interest? After the bill is passed, those processes will be the same. The one thing that will be different is that the qualified defence that is currently available to the allegation of assault will not be part of the law and therefore would not form part of the analysis of the legal question that police officers and ultimately prosecutors would have to ask themselves. I do not know if you have anything that you would like to say from your experience. Obviously, as Lord Advocate said, cases will still be reported today. The key difference in this is that, at the moment that we have this available defence, it is only an available defence. It is not a barrier to cases being prosecuted. In section 51 of the 2020 act sets out factors for the court to consider. The court could consider all those factors and people would still be convicted of spacking and are where the circumstances merit it and the defence is not met out. In a sense that just provides clarity that it is no longer a defence to use physical violence as a form of punishment on your children. That is a clearer statement than what it is at the moment, which is that it might be and it might not be and it depends on whether the test of the defence is made out. I do not know if you have seen the evidence that we got from Social Work Scotland and Police Scotland in the stage 1 evidence gathering. Both of them said that they did not think there would be any change to the way that they dealt with the process on the day before the law, the day after the law, sorry, was to be passed. Do you recognise that from the police? I think the police have an obligation in terms of child protection work that they do to investigate any concerns that are brought to their attention about a child. So that happens today, that will happen tomorrow, if the spills pass that will happen then. If there is evidence of a crime they would report it. Now obviously it is prosecutors if there is an available defence of reasonable justizement justifiable, so we would have to consider that in our considerations. If that is no longer a defence then that would not be a factor in it, but the same public interest considerations would still apply and a lot of the considerations that I think are looked at in terms of the defence at the moment, looking at the nature and gravity of the offence and all the surrounding contexts and circumstances are exactly what we do and what we will continue to do. I would like to explore the issue of Lord Advocate's guidelines. I have come across the response before in my previous professional capacity when your predecessor issued guidelines around the criminalisation of people who are victims of human trafficking who are coerced into committing criminal acts. On that occasion we came up against that because those had not been adhered to by the police and young people who were victims of trafficking had ended up in Pullmont despite the guidelines of your predecessor. I guess my question is about how, first of all, in the case of this bill, when do you anticipate issuing those guidelines? Secondly, how are they then disseminated to your coppers on the ground, as it were? As I said earlier, we are already in discussion with Police Scotland about the shape and parameters for guidelines. That is under active consideration. I certainly would intend to issue guidelines as near as possible with the coming into force of the legislation. The guidelines that I issued to the chief constable are his responsibility to disseminate the instructions to his officers on the ground. No, it is an area that we will not have to work with the police in terms of agreeing the content of any guidelines. It would be a matter for the police to incorporate them. In a very tiny follow-up, is there any cause for you to adapt those guidelines over the passage of time, if you ascertain that it is not working properly or that there has been too many prosecutions or too few? Do you move those guidelines or change them in any way? I have the power to issue instructions to the chief constable on the reporting of crime. Those matters are kept under review. I should say that I do not recognise the idea of there being too many or too few prosecutions. That is not the way that we think about the job that we require to do. A good example of that is the Lord Advocate's issued guidelines on liberation, which have been amended in light of the Criminal Justice Act 2016, which introduced new provisions on liberation on undertaking and investigative liberation. They were updated to take account of that, so that is a normal practice that we would adopt. I have been listening with interest this morning, but I would like to ask you a couple of questions. During the stage 1 debate, Marie Todd said that, I assure members that our intention is not to criminalise parents. Does that intention have any legal force? Would it be in your view fair to say that it is a foreseeable outcome and consequence of the bill? From a prosecutorial point of view, the law is whatever Parliament enacts. We look to the law as it is in common law and in statute. It is perhaps important to keep in mind that, at present, it is a crime for a parent to assault our child. As I said in my introduction, the law currently treats as criminal parents who assault their children. There is a qualified defence of reasonable chastisement, which is currently available and which will no longer be available to parents who assault their children if the bill is passed. I try to drill down on that. I appreciate that there is the reasonable chastisement element to things, but does that not mean that the bill has the potential to criminalise loving and caring parents who use a smack on the back of the hand, on the back of the bottom, a light tap? That has the potential, ultimately, to criminalise them, because that is now going to be deemed assault and you are removing the reasonable chastisement clause. It is not a defence to an allegation of assault that it was motivated by love. The whole facts and circumstances are facts and circumstances that would be taken into account in the context of considering what action is appropriate in the public interest. If there is sufficient evidence that a crime has been committed, I can give you a range of circumstances in which crimes are committed and people offer benign motives. The motivation is not of itself a defence, although it may be highly relevant to the decision making in relation to how the law responds. I will go down to ask some questions about guidelines and guidance. Well, that was part of it, so I appreciate that you mentioned guidelines or you are bringing in guidelines. I understand that the intention of the bill is to remove the defence so that parents can no longer claim that it is acceptable to use physical violence as a form of corporal punishment of children. Obviously, that is the policy driver of the bill and to change attitudes. I have read the policy memorandum and my team has been involved in the kind of on-going discussions and watched with interest as well about the development. I understand that it is not being introduced with a view to seeking to, it is not about increasing numbers of people in court, etc. It is about saying that you should not use physical punishment, physical violence as a form of punishment in your children, so it is removing the defence. That is the simplicity of it, but what the Lord Advocate is saying is that already physical violence uses a form of punishment can be a form of assault. It is today, it would be after this passes, it is just that we would no longer have any statutory defence that could be claimed. The law is being simplified, but it is not a whole new framework where at the moment people can smack their children and say that that is absolutely fine in every circumstance because it is not in terms of the current law. I have danced around the issue a little bit there. Is it not correct that where a defence is successfully established, that is in effect saying that a crime has not been committed? By removing the defence, you are creating a new area of behaviour that is criminal. We heard that from the law society, from Professor Law at Dundee University, from several criminal law agents. That will create a new category of behaviour that is criminal. One has to be clear about that. By removing a defence in law, by definition, there will be conduct where the defence could be successfully invoked, where it can no longer be successfully invoked. Do you think that, as a matter of policy, it is a good idea to have legislation on the statute books that you do not intend to enforce in all circumstances, most circumstances or some particular circumstances? It is a feature of our legal system across the board. Where there is sufficient evidence that a crime has been committed, prosecutors assess what is the appropriate response in the public interest. We see that in all areas of criminality. We in our system do not prosecute and we are not obliged to prosecute every case that is reported to us. There are a range of possible responses that include diversion from prosecution, including a range of direct measures and ultimately taking no action. The same principles are applied by prosecutors every day to cases across the wide spectrum of cases that are reported to them. On the back of Oliver Mundell's question, one of the concerns that critics of the bill voice is that this will see the criminalisation of many parents or hundreds of parents in normal parenting behaviour, which presupposes that this legal defence is being used hundreds of times. Is that accurate? I have no statistical way of answering that question. I don't have any data that would allow me to give a figure. It is unknown in the true sense whether that will result in an increase in cases being reported or not. We do see that if there is new legislation and attendant publicity around that, that may result in an increase in reporting, partly because attitudes change and people are sensitised to behaviour that they might not otherwise have reported. At the same time, no doubt, it may have an impact in changing behaviours in another direction. The question of whether there will be more cases reported is something that remains to be seen. I haven't looked at the international experience of where this has happened elsewhere. It would suggest that you won't see significant increases in prosecution, but it remains to be seen in terms of numbers of cases reported. In my experience of dealing with domestic abuse, I can give a parallel when the law changes and there is greater public awareness that behaviour is not acceptable. Other members of the public might involve the authorities more, and we have certainly seen that in a domestic abuse context where neighbours and other people will pick up the phone to the police to report things, rather than perhaps the attitudes of 20, 30 years ago where things were overlooked as just domestic and were maybe not reported. We have seen that in some of the cases that we have where it is members of the public, where something has happened in public who have intervened and have called the police. You might have that if there is greater public awareness around it, but the policy intent of the bill was made really clear. It is not all about prosecution, it is not all about the criminal law, it is about saying that this is not an acceptable way to chastise your children. There are a couple of members who are making signals at me that they have brief supplementaries, so they will ask before Rhoda Grant comes in. Are you being... Right. Fulton, we will take your step and then we will go to Rhoda. Thanks again, convener. I suppose that we have had a lot of talk during the bill about the possible criminalisation of parents around the increase in the criminalisation of parents, and it is not something that the evidence has pointed to at all. I know that it is difficult for you to give a view on that, but the evidence certainly has not pointed to that. However, would you agree that the biggest challenge that we face just now, from a prosecution point of view, is actually prosecuting really terrible offences against children rather than worrying about whether the bill will lead to an increase in prosecution for parents? Prosecutors deal with a wide range of offending from the most serious offending to offending at the other end of the scale. That is why, as I indicated in my opening statement, we are focused on taking action that is appropriate and proportionate to the particular circumstances of the particular case that comes before the prosecutor. We can all assess the relative gravity and seriousness of different types of criminality that we have to deal with, and prosecutors respond in a way that reflects that. A number of times you mentioned when the decision is taken whether or not to prosecute, you look at what would be in the public interest, and I wonder if I can push a wee bit on that as to where that falls. What would you consider to be in the public interest and what would you consider not to be in the public interest? Is there examples that you could give us that would illustrate that for us? The Scottish prosecution code sets out, and it is a publicly available document that sets out factors that, depending on the circumstances, may inform the consideration of the public interest. Unsurprisingly, it includes the nature and gravity of the offence and the impact of the offence on the victim. I think that Mr Mundell's question about harm is a consideration that would come into play in relation to the impact on the victim, the age background and personal circumstances of the accused and of the victim. The motive for the crime is a factor that would be taken into account in the public interest to pick up the question that Ms Harris raised with me. The code sets out a little more detail under each of the public interest factors that are identified there. Those are factors that will apply in relation to any report of any crime, and they are factors that prosecutors are well used to applying and which they apply currently when cases involving alleged assaults by parents on children are brought to their attention. In preparation for coming today, we looked at a few of the cases from last year, where we had taken no action or taken some other action in prosecution. Just to illustrate, there was a case involving an assault by a mother on a 10-year-old daughter who had come home late and hadn't been answering calls from her mother. It was a punishment for what was deemed bad behaviour. In that case, the accused had no previous convictions. There were mental health issues. We had information about social work involvement with the family and there was getting full information around the background. We were able to take a decision to divert for social work diversion. Who could then work with the family around some of the issues? We had other cases that were similar and reported for behaviour towards children. It was felt that because there was already a framework of support in place, we didn't even need to divert it because we were satisfied then that the police were working with social work and they were able to satisfy that there was no actual public interest in prosecuting. There was another case where it was involved in an assault on a nine-year-old. An instant arose after a family argument in the morning. A time of great pressure and stress, the person who the parent was working, but there was quite a lot of pressure in the family at the time. In that, we received further information around other assistance that the family were getting through social work but also through other family members. We were absolutely satisfied that no action needed to be taken. That is the kind of information that we would look to the police to give us. We would not just get information about the actual incident itself, we would want about the background, we would want to know if the parent ever behaved in this way before. Is this in a context of domestic abuse? Sadly, quite a number of the cases take place in a domestic abuse environment, not surprisingly. We would want to look at all those circumstances, perhaps any pressures that the parent was under at that time, factors that are relevant to them, as we would in other crimes as well. In terms of how we apply it at the moment and how we would apply it is that we do not look through a narrow lens of what was the individual act, what is the full context and circumstances of the behaviour in determining what is the public interest there? Particularly if one is considering, at that end of the spectrum, whether the public interest is best served by some form of diversion or, as Anne-Marie has said, support rather than through a prosecutorial option. That is one of the considerations at the same time. We have a string of examples of cases where the balance went the other way, and looking to the circumstances, the particular nature of the act, the full background and context, a decision was made to prosecute the case. We have a number of examples of those as well, but the important point that Anne-Marie has said is that prosecutors are routinely, as part of their professional practice, considering what is the appropriate course to take to respond to this report of an alleged crime, assuming sufficient evidence to justify action. In doing that, in this context, as in other contexts, we will look at all the relevant factors. Given child protection guidance and regulations, I would assume that, normally, when a case comes for prosecution, social work would already be involved. Does it influence your decision whether or not social work has taken action? For example, if the child is in danger, it may have taken action to take the child into care and remove it from the family home or whether it is working for the family. Are those things that you look at before you decide how to act? We would want to know what the involvement of any of social work was, if there were on-going concerns, if there was previous behaviour that had been reported, because that is relevant to the context. One of our factors is obviously about the risk of re-offending, and that is a clear public interest consideration. I think that knowing the involvement of social work would be a full circumstance of the incident. There are cases in which we see where the police properly involve social work, because they are not required to do it. Social work does a review and says that we are quite content that this was an incident that there is no need for on-going work with the family, and we see that in a number of cases. I think that we would want to have a full picture so that we would understand what the situation was. I wanted to return earlier to the comments around the common law crime of assault. In our system, the parameters of that offence are in effect set by case law. Do you think that there is any issue at all with the fact that the offence means that there probably is a sparsity of case law in relation to mine or my old physical force, because those cases have not been tested or fully explored? Do you think that that is something that we should give consideration to? I am not aware of any particular practical difficulties in the application of the law I think that you are right in the sense that the case law and reasonable chastisement tends to predate the 2003 act, but I think that if the purpose of this bill is to remove that and to say that that is no longer a defence, then the case law and assault will still continue to apply. A sheriff will have to consider the evidence-led decide if it does constitute a crime and if it has been proved beyond reasonable doubt, so I think that those considerations will still apply. Obviously, if they listen to what has happened and they say that that does not constitute an assault in law, then there will not be a conviction. You recognise as a possibility that courts may come up with new tests of their own in the absence of thresholds in the bill? In effect, they would say that your decision to prosecute in their view was not in the public interest. Is that a possibility? I do not think that they could come up with a new test in law as such. I think that it is always open to a court to criticise a decision to prosecute and we do see that occasionally. Obviously, it is a matter for them to determine and the evidence has a crime being committed and if it has, has it been proved beyond reasonable doubt? As the decision maker in a summary case, they would then have to make that decision. Sentencing would be a matter for them and they could reflect that in sentencing as well if they did not think that it was an appropriate case to be prosecuted. However, I do not think that there will be an array of new tests that come up around the law of assault. As I said, we already prosecute cases of parental chastisement for assault that amounts to that in the courts at the moment. I think that the courts are used to dealing with that already. That is to evolve and develop in a number of the things that we now take pride in in this Parliament, for example, around marital relations between married people. They developed through case law, but they were not developed through statutes. Surely, there is a possibility that common law will continue to develop in this area and that they might refine what they consider to be an assault for a parent and child in the context of those parental rights and responsibilities that exist in other statutes? I think that it would be wrong for me to pre-empt the natural development of the law, but the legal test for an assault is straightforward. It is an attack on the person off another with the relevant mental state for a crime to be committed. Courts are used to applying those tests in a range of circumstances at the moment. Of course, as Ann Marie says, there will be cases where a court concludes that, on the evidence that the court has heard, there was not a crime that happens across the board. Prosecutors assess a case, take it to court and, on occasion, the case is not but the evidence does not support the charge. Equally, as Ann Marie has said, there are cases where, even though a crime has been committed, courts are sometimes critical of a case by having been brought by a prosecutor. It is our responsibility to take the cases that we consider right in the public interest, but sheriffs are entitled to comment. At the end of the day, a sheriff will reflect the sheriff's assessment of the case in any sentence that is imposed. I wonder whether, Lord Advocate, if Oliver Mundell's concerns about the lack of case law and thresholds that exist around the issue go some way to answering my earlier question about scale in that, if there is not a great deal to go on, as he suggests, it is not a legal defence that is regularly exercised. It is not an issue that courts are asked to sit in judgment of loving physical chastisement as the critics of this bill would describe it as being reasonable. It is not something that comes up in court very often. It strikes me that, if he is worried about the absence of case law, that does not come up very much. In the written evidence, we provided some data on the number of cases that we had. We looked at a period from three years ago for a three-month period, but increasing that to an estimation over a 12-month period, the estimated number of cases prosecuted was less than 500 for the whole year, and that was assaults on children either to injury with no injury or to a severe injury. The numbers are small on any kind of reading. Obviously, that is within a framework that we have, the statutory defence at the moment, but even taking that into account, the numbers are small, and whether there is some increase, we have to wait and see. If those were acquitted on the basis of the defence of reasonable punishment? No, and that is something that you would literally have to go through every individual case. We can pull cases on in terms of the charge, and we can see that it involves a parent and that the victim is a child, but we cannot go into the detail of that without a very thorough, manual research exercise. Thank you very much for your evidence this morning. The next meeting of the committee will be on Thursday, 13 June, when we will take evidence from Engender on their shadow report on the UN convention on the elimination of discrimination against women. We will now move into private session, if I can ask the gallery to make it clear.