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?
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.
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.
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?