Parental battery - 368/16
Dated: 06 Apr 2016
Provision of information held by Northumbria Police made under the Freedom of Information Act 2000 (the 'Act')
Thank you for your e mail dated 15 March 2016 in which you made a request for access to certain information which may be held by Northumbria Police.
As you may be aware the purpose of the Act is to allow a general right of access to information held at the time of a request, by a Public Authority (including the Police), subject to certain limitations and exemptions.
1. If in relation to the administration of a simple caution for injuries caused through parental battery punishment (or by a person acting in loco parentis), where the Crown Prosecution Full Code Test is undertaken for Assault occasioning Actual Bodily Harm under Section 47 of the Offences against the Person Act (1861) or "S47ABH" (by which the implicit defence of R v Hopley 2F&F 202, 1860 i.e. "they were naughty and I smacked them" can be disregarded through S58 of the Children Act, 2004), are you able to confirm you have ensured and are ensuring compliance with the relevant Ministry of Justice Guidance for Adult Cautions or "MOJG" (and underlying common law/statute e.g. Wyman v Chief Constable Hampshire Police (2006) EWHC 1904, Article 6.2 of the European Convention on Human Rights, statute through Section 6.1 of the Human Rights Act, 1998 etc.) through ensuring that
a. the injuries to the child have legal precedent as amounting to S47ABH
b. that the parent (or person acting in loco parentis) has made a clear and reliable admission of S47ABH?
2. Are you aware of your obligations under common law (e.g. Stratton vs Chief Constable, Thames Valley Police (2013) EWHC 1561) and/or MOJG to disclose, in full, the consequences of accepting a police caution before it is offered? Are you complying with this legal obligation?
3. Please describe what it understood by a "mark" in the context of injury inflicted through parental battery punishment (or by a person acting in loco parentis).
4. Are parents not allowed to "leave a mark"?
5. Are there any circumstances where it is lawful for a police officer to make a request of a solicitor attending a formal police interview to withhold relevant evidence from his client? If so, please describe those circumstances and what safeguards you would put in place to ensure no miscarriage of justice.
6. Is it possible for the police forces of England and Wales such as yours to administer police simple cautions for Common Assault under S39 of the Criminal Justice Act (1988) for alleged offences arising through parental battery punishment, given that the implicit defence of correction i.e. "they were naughty and I smacked them" (R v Hopley) is only inapplicable for the offences listed in subsection 58.2 of the Children Act (2004) - or of greater severity - and if so, please describe how.
7. Are you aware of your obligations under common law to not require an instant decision from a suspect for a decision to accept a police caution? Are you complying with this legal obligation?
We have now had the opportunity to fully consider your request and I provide a response for your attention.
Following receipt of your request, searches were conducted with the Crime and Criminal Justice Departments of Northumbria Police. I can confirm that the information you have requested is held by Northumbria Police.
I am able to disclose the located information to you as follows.
1a. An allegation of assault by a parent (or by a person acting in loco parentis) on a child would be referred to a specialised unit within Northumbria Police. Any decision as a result of this investigation would be made in line with the appropriate evidential test, including all the relevant legislation such as the exemptions on parental battery as a defence. Any decision to consider an appropriate disposal would only be taken once the evidential test had been passed and would include all elements of the decision making factors contained within the Ministry of Justice Guidance for Adult Cautions
1b. Prior to consideration for a simple caution for any offence the guidance on the admission of an offence as laid down within the Ministry of Justice Guidance for Adult Cautions.
In respect of both 1a and 1b any decision to caution would require the authority of a supervisory officer and the rationale for the decision making process recorded whilst taking into account the individual factors present in each specific case.
2. In accordance with the Ministry of Justice Guidance for Adult Cautions prior to a simple caution being offered an office must make the offender aware and fully explain the potential implications of accepting a simple caution. This process will be repeated prior to the simple caution being administered and the offender will be required to sign to confirm the potential implications have been explained.
3. and 4. The definition of and extent of any marks (given its ordinary meaning) would be considered during any investigation into an allegation of assault to assess the seriousness of any injury if caused. Each case would be dealt with on its own merits including the defence of reasonable chastisement
5. The police officer must inform the offender of the evidence against them and the decision to offer a simple caution. Offenders and their legal representatives are entitled to seek and have disclosure of the evidence before the offender agrees to accept a simple caution. The offender is given the opportunity for legal advice, and prior to any caution being administered the decision requires authorisation by a supervisory officer and further tested during the process for administrating a caution
6. It is possible as simple cautions are available for police forces to use subject to the relevant evidential and public interest tests, thereafter guidance laid down within the Ministry of Justice Guidance regarding the severity of an offence would be considered. A decision would be reached after full consideration of the merits of each individual case.
7. All officers making a decision to administer a simple caution must adhere to the Ministry of Justice Guidance for Adult Cautions which stipulates that the offender must understand that he or she does not have to make an immediate decision on whether to accept the simple caution but can consider the matter and if need be take independent legal advice;
Due to the different methods of recording information across 43 forces, a specific response from one constabulary should not be seen as an indication of what information could be supplied (within cost) by another. Systems used for recording these figures are not generic, nor are the procedures used locally in capturing the data. For this reason responses between forces may differ, and should not be used for comparative purposes.
The information we have supplied to you is likely to contain intellectual property rights of Northumbria Police. Your use of the information must be strictly in accordance with the Copyright Designs and Patents Act 1988 (as amended) or such other applicable legislation. In particular, you must not re-use this information for any commercial purpose.
How to complain
If you are unhappy with our decision or do not consider that we have handled your request properly and we are unable to resolve this issue informally, you are entitled to make a formal complaint to us under our complaints procedure.
If you are still unhappy after we have investigated your complaint and reported to you the outcome, you may complain directly to the Information Commissioner’s Office and request that they investigate to ascertain whether we have dealt with your request in accordance with the Act.