Reasonable chastisement research report
Case sampling exercise examining usage of the reasonable chastisement defence - Findings summary
Introduction
The Policy Directorate Research Team in the Crown Prosecution Service (CPS) has recently completed a research project which reviewed a sample of cases where a child was assaulted by parent or an adult acting in loco parentis (see note 1). In particular, the project examined cases that occurred after the coming into force of section 58 Children Act 2004 on 15 January 2005.
Section 58 Children Act 2004 removes the availability of the reasonable chastisement defence for parents or adults acting in loco parentis where the accused is charged with wounding, causing grievous bodily harm, assault occasioning actual bodily harm or cruelty to persons less than 16 years of age. However, the reasonable chastisement defence remains available for parents and adults acting in loco parentis charged with common assault under section 39 Criminal Justice Act 1988.
Before the enactment of the Children Act 2004, under English common law, parents and adults who were acting in loco parentis were entitled to put forward reasonable chastisement as a defence if they were charged with offences relating to acts of violence committed against a child, (a person under 16 years of age) if the act was committed for the purpose of correcting the child's behaviour.
Prior to the Children Act 2004 coming into force, the CPS Offences against the person, incorporating the Charging Standard (see note 2) (the Charging Standard) was revised to treat the vulnerability of the victim, such as old age, disability or being a child assaulted by an adult as an aggravating factor when deciding the appropriate charge. Injuries that would usually lead to a charge of 'common assault' now should be more appropriately charged as 'assault occasioning actual bodily harm' (ABH) under section 47 Offences against the Person Act 1861, providing an aggravating factor has been identified.
The Charging Standard states that for minor assaults committed by an adult upon a child that result in injuries such as grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or a black eye, the appropriate charge will normally be ABH for which the defence of 'reasonable chastisement' is no longer available.
However, if the injury amounts to no more than reddening of the skin, and the injury is transient and trifling, a charge of common assault may be laid against the defendant for whom the reasonable chastisement defence remains available to parents or adults acting in loco parentis.
Research project purpose
The purpose of the project was to provide information on the use of the reasonable chastisement defence for the United Kingdom Government's response to questions raised by the Council of Europe's Committee of Ministers (see note 3).
In particular, the Committee of Ministers sought to identify whether the UK legislation sufficiently protects children from physical punishment and provides an effective deterrent to the ill-treatment of children that would constitute a breach of Article 3 of the European Convention on Human Rights and that the UK is compliant with the judgement in A v UK (see note 4).
In order to provide the information for the United Kingdom Government's response, this research project was designed to establish if the reasonable chastisement defence was being put forward by defendants after the enactment of section 58 Children Act 2004 on 15 January 2005 and whether the Charging Standard was being correctly applied in those cases.
The research project did not seek to compare nor draw any conclusions about the number of cases where the reasonable chastisement defence has been put forward before and after the enactment of section 58 Children Act 2004. The project also does not seek to make any reference or comment on the effectiveness of section 58 Children Act 2004.
The objective of the research project was to answer the two research questions below:
Research question one
Since the coming into force of section 58 of the Children Act 2004, have there been any cases where 'reasonable chastisement' has been successfully used as a defence?
Note:
In the project, 'successfully' was defined as when the reasonable chastisement defence was put forward against a charge of common assault and a not guilty verdict was recorded. However, the findings include three discontinued cases that were identified from the Area Questionnaire where the defendant had either explicitly or implicitly put forward the reasonable chastisement defence. The cases were discontinued as the victim or witness withdrew their support for the prosecution. Nevertheless, the cases were included in the file review as the charge selection process was the central matter under examination.
Research question two
Are assaults upon children by their parents, or adults acting in loco parentis, being correctly charged as prescribed by the Offences against the person, incorporating the Charging Standard guidance document?
Case sampling project
The project was conducted in three parts, A, B and C.
Part A of the project involved a questionnaire that monitored cases over a 3 month period where the child abuse monitoring flag on the CPS electronic recording system was matched with specific offences, (listed in the methodological note below). Eight CPS Areas took part over a three month period and generated a sample of 113 cases.
The defendant was a parent of the victim or an adult acting in loco parentis in 34 of the 113 cases, of which 82% (28 cases) resulted in a conviction. The remaining six cases were identified as relevant for review in Part C because the cases resulted in a not guilty verdict or the case was discontinued.
Part B of the project requested prosecutors in all 43 CPS Areas (including CPS Direct) to supply details of cases that occurred from 15 January 2005 to 31 January 2007 where the defendant had put forward the reasonable chastisement defence to a charge of common assault. Some respondents also returned details relating to defendants charged with other offences such as child cruelty. Eleven cases were identified and six cases were considered as relevant for review in Part C as the defendant had been found not guilty after putting forward the reasonable chastisement defence.
Part C consisted of a file review of by a senior Crown Prosecutor the cases identified in Parts A and B. Twelve cases were sought from Areas but unfortunately 5 cases were unable to be submitted for the review in time due to the tight timeframe allowed for the project.
The cases that were reviewed were cases that occurred after 15 January 2005 and where the defendant had put forward the reasonable chastisement defence and was found not guilty or the prosecution was discontinued. The review assessed the appropriateness of the charge according to the Charging Standard.
Note:
In reviewing the cases, the project review lawyer was dependent on the information present in the file and did not have the benefit of knowing how the prosecutor may have presented the case or how the prosecution argument or evidence was received by the court.
Key findings
Research question one
The report identified 12 cases from the samples where the reasonable chastisement defence was raised, (either explicitly or implicitly) and the case resulted in an acquittal or discontinuance since section 58 Children Act 2004 was enacted on 15 January 2005.
In particular;
- 3 cases where reasonable chastisement was explicitly used as a defence to a charge of common assault in the period from 15 January 2005 to 31 January 2007 (from the Part B sample);
- 1 case where reasonable chastisement was explicitly used as a defence to a charge of common assault within the period 1 December 2006 to 28 February 2007 from a sample of 113 cases (from the Part A sample);
- 4 cases have been identified where the defendant was charged with common assault and where the reasonable chastisement defence was not explicitly stated but may have been a factor in the acquittal or discontinuance of the case(from the Part A sample); and
- 4 cases where reasonable chastisement was put forward by the defence despite the fact that it did not constitute a legal defence to the charge of child cruelty under s.1(1) CYP Act 1933 (3 cases from the Part B sample and 1 case from the Part A sample).
Note:
Although the reasonable chastisement defence is no longer available as a legal defence for a charge of child cruelty, the defendant's explanation for their actions can still be put before the court.
As stated in the recommendations below, if the reasonable chastisement defence is being used explicitly or implicitly by the defendant when facing charges other than common assault, CPS prosecutors should inform and remind the court that the reasonable chastisement defence is not available under section 58 Children Act 2004.
Research question two
A senior Crown Prosecutor reviewed 7 of the 12 case files identified from the Area Questionnaire (Part A) and Policy Bulletin (Part B) samples to ascertain whether the charge was correctly applied in accordance with the "Offences against the person, incorporating the Charging Standard", the "Code for Crown Prosecutors" and section 58 Children Act 2004. Although 12 cases were sought from Areas, unfortunately 5 cases were unable to be submitted in time for the review due to the tight timeframe allowed for the project.
Five of the seven cases reviewed involved charges of common assault for which the reasonable chastisement defence is legally available. The remaining two cases involved charges of child cruelty where the defendant put forward the reasonable chastisement defence despite the fact that reasonable chastisement is not available as a legal defence to a charge of child cruelty. However, it was not possible to conclude from the files whether the raising of the reasonable chastisement defence in the two cruelty cases played any part in the acquittal or discontinuance.
Of the 5 common assault cases reviewed, the report found:
- 2 cases where it was possible that the defendant could have been charged differently, (2 not guilty outcomes); and
- 3 cases were correctly charged, although the defendant was acquitted or the prosecution was discontinued, (2 discontinuances and 1 not guilty outcome).
Note:
The samples generated within the project, and the 12 files reviewed by the senior Crown Prosecutor are not statistically significant. The cases reviewed give an indication rather than a representative picture of how the criminal justice system has approached the reasonable chastisement defence since the enactment of section 58 Children Act 2004.
To place the sample size in context, there were 836 proceedings in the magistrate's courts against defendants facing charges relating to cruelty or neglect of children in England and Wales in 2005 (see note 5).
Previous CPS Policy Directorate bulletins
In October 2001, April 2002, May 2003, and May 2004, the CPS Policy Directorate carried out a sweep of CPS Areas, searching for cases where the reasonable chastisement defence was an issue. The method employed by previous sweeps was similar to the process that was used for Part B of this project. In 2004, three cases were identified (one not guilty, one guilty, one discontinued) and in 2001-2003 a total of nine cases were identified (four not guilty, three guilty and 2 unknown).
There are a number of possible reasons that may explain why there are higher numbers of cases in the 2007 Report compared to previous searches:
- publicity and education campaigns surrounding the enactment of the Children Act 2004 may have resulted in higher reporting rates;
- more cases may have passed the evidential and public interest tests and carried on to prosecution as the Children Act 2004 clearly outlines that the reasonable chastisement defence has been removed for all offences except common assault;
- the Research Team was very proactive in reminding CPS Areas to provide a response to the Policy Bulletin; and
- external factors, such as CPS and IT communication systems have improved dramatically since 2001/02 and this may have contributed to increasing Area responses.
Report recommendations
While the number of cases reviewed in this report is very small, and certainly not significant enough to justify the generalisation of the findings across England and Wales; there is evidence to suggest that there have been cases where defendants charged with common assault have been acquitted or the case was discontinued, after running the reasonable chastisement defence. Of those cases, the file review suggests that it was possible that some defendants could have been charged differently. Additionally, there is evidence to suggest that the reasonable chastisement defence may have been put forward in cases where it is not legally available.
The findings of this report have led to two recommendations for remedial action which are summarised below:
- CPS needs to issue a policy bulletin to all CPS staff to:
- remind prosecutors of the changes brought about by section 58 Children Act 2004 and the revision of the revised Charging Standard (see note 6); and
- request CPS prosecutors to inform and remind defence advocates, judges, magistrates and jurors that section 58 Children Act 2004 does not allow the reasonable chastisement defence to be presented as a legal defence to any charge resulting from an assault upon a child unless the defendant is the victim's parent, or an adult acting in loco parentis and is charged with common assault; and
- CPS needs to improve the file notes entered by prosecutors through regular performance management reviews. Improvement of file endorsements will present a clearer picture of the rationale behind charging decisions.
Concluding note
The Policy Directorate of the Crown Prosecution Service has recently issued a policy bulletin to all CPS Areas to request Crown prosecutors to note the recommendations of the report and respond where necessary.
The policy bulletin also addresses the research report's second recommendation by requesting that there should be clear notes on the case files that indicate:
- that section 58 Children Act 2004 has been considered; and
- the Charging Standard was referred to.
Methodological note
A three tiered project (A, B and C) was designed to identify cases in the 43 CPS Areas (including CPS Direct) where reasonable chastisement had been used as a defence and, to review the charging decision against the revised Charging Standard.
Part A
Eight CPS Areas were requested to identify flagged child abuse cases over a three month period and collect data on the circumstances of the case, including the defence raised to the following offences:
- s.1(1) - Cruelty under the Children and Young Persons Act 1933;
- s.18 - Wounding/causing grievous bodily harm with intent under the Offences against the Person Act 1861;
- s.20 - Unlawful wounding/inflicting grievous bodily harm under the Offences against the Person Act 1861;
- s.47 - Assault occasioning actual bodily harm (ABH) under the Offences against the Person Act 1861; and
- s.39 - Common Assault or Battery - assault by beating under the Criminal Justice Act 1988.
Part B
A Policy Bulletin was issued to all 43 Areas (including CPS Direct) to capture prosecutor recall of any cases where a defence of reasonable chastisement was used between 15 January 2005 and 31 January 2007.
Part C
Cases where the defendant had put forward the reasonable chastisement defence and had been acquitted or the prosecution was discontinued were reviewed by a Senior Crown Prosecutor to determine whether or not the defendant had been correctly charged according to the Charging Standard.
Further information
For more information contact:
Policy Directorate Research Team
Crown Prosecution Service
50 Ludgate Hill
London
EC4M 7EX
July 2007
Email: hqpolicy@cps.gsi.gov.uk
Notes
- loco parentis means 'in place of the parent'.
- Offences against the person, incorporating the Charging Standard, available on this website.
- The Committee of Ministers are responsible for overseeing the implementation of European Court of Human Rights judgements.
- The European Court of Human Rights in A v UK (1999) 27 EHRR 611
- House of Commons Daily Hansard Written Answers 23 Jan 2007: Column 1688W
- The revised Charging Standard emphasises that where the victim is a child assaulted by an adult, and the injuries are more than 'transient or trifling' then the charge should normally be ABH.
This judgment from the European Court of Human Rights held that English law had failed to provide adequate protection to the boy A and was in contravention of Article 3 of the European Convention on Human Rights (ECHR). The Government accepted the judgment of the Court. Article 3 - Prohibition of Torture states that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment".
