UPDATE : Since clicking the ‘Publish’ button I spotted the article on Liberal Conspiracy which covers pretty much the same ground as this article – Give it a read, there’s a link at the bottom.
The Daily Mail in this article on David Lammy MP’s recent comments regarding the smacking of children, Labour MP: Smacking ban led to riots because parents fear children will be taken away if they discipline them perhaps goes overboard a little. I can’t help but feel though that David intended his words to precipitate just this kind of reaction – and I’m unsurprised by the Mail’s interpretation of his words. They may have got it a little wrong, but this gist of it is probably bang on.
I’m not going to argue about whether it’s right or wrong to smack children, or whether those of us who have been smacked as children are more or less likely to riot than those of us who were not.
I would like to set the record straight on what the Mail calls “The ban on smacking children” though
The Mail article states :
The Children Act of 2004, introduced by Tony Blair’s Government, removed the defence of ‘reasonable chastisement’, meaning injuries as slight as a bruise can result in an assault charge. Guilty parents can be jailed for up to five years.
While Mr Lammy, (in his on-line web-chat for Mumsnet, says)
Parents in Tottenham continually raise with me the real pressures of raising children for example on the 15th floor of a tower block with knives, gangs and the dangers of violent crime just outside the window they say they no longer feel sovereign in their own homes and the ability to exercise their own judgement in relation to discipline and reasonable chastisement has been taken away from them. Its too easy for middle class legislators to be far removed from the realities of the typical single mum struggling with these issues and so in that context in the book I do say that we should return to the law as it existed for 150 years before it was changed in 2004.
The legislation currently talks about “a reddening of the skin” not completely sure how this applies to my own children! Previously the courts determined whether parents had used “reasonable chastisement” or “excessive force”.
So what’s the truth of the matter ?
Well the Children Act 2004 is apparently the relevant piece of legislation (to a point) http://www.legislation.gov.uk/ukpga/2004/31/section/58 . It does remove the defence of “reasonable chastisement” in cases where a parent or guardian is accused of wounding, causing grievous bodily harm, assault occasioning actual bodily harm or cruelty to persons less than 16 years of age.
The defence is retained though where a charge of common assault is made. This would be an assault which resulted only in bodily harm – not “actual bodily harm”. This is a lesser charge.
The statement in the Mail is misleading – an assault which caused a bruise, would have caused actual bodily harm – it would not therefore be merely an assault.
The key expression here though is “actual bodily harm”. What does it mean ?
The Children Act 2004 does not redefine this. It simply states the existing law. That’s right David, the one from over 100 years ago. The Offences Against the Person Act 1861 http://www.legislation.gov.uk/ukpga/Vict/24-25/100 – specifically section 47 of the Act which has been interpreted by lawyers for a long time as meaning that :
Common Assault is one which causes only actual bodily harm – for example it might be a smack which leaves a mark, but which quickly fades, and is only transient.
Other assaults are more serious – as they involve ‘actual bodily harm’ – which although perhaps not permanent, has more than a merely transient duration such as a bruise, or a scratch.
The reference to “reddening of the skin” is used in the Crown Prosecution Service’s guidance on applying this law. http://www.cps.gov.uk/publications/research/chastisement.html
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.
Although this guidance is very influential it is not a definitive statement of the law. It is not as Mr Lammy says “legislation” and in any case is used to clarify a law drafted in 1861 – the one which David Lammy wishes to return to – a time when relatively few people with black skin lived in the United Kingdom, and it was perhaps unsurprising that generalising statements were made. (I have unfortunately seen quite a few black children with reddened skin as well, but let’s not get sidetracked).
So to clarify if you have been accused of hitting a child in such a way that you’ve cut them or bruised them, then the defence that “I was only disciplining my own child as I believe any good parent should” just will not wash – it’s no defence.
If however you’re accused of hitting a child in such a way that you’ve not left any mark that lasts longer than a few minutes (which presumably includes the red hand mark I remember vividly from my own childhood) – then you can say exactly that “I smacked my child because he was being naughty” – it is still legally a valid defence. It would be up to a jury, or magistrates to decide whether you were guilty. If indeed you were ever prosecuted.
The fact is that the Children’s Act, Section 58 is quite clearly NOT a ban on smacking. What it is though is a clear statement that smacking is also NOT something which would cause “actual bodily harm” to a child. Quite right too – Although the Mail talks of “injuries as slight as a bruise” – just ask yourself (especially if you’ve been smacked by your parents, or smacked a child yourself) – just how hard do you have to smack a child in order to leave a bruise ? I promise you, the hand print I mentioned earlier, left quite a mark on my memory – but it sure as hell left nothing to show for it on my leg.
The Children’s Act doesn’t take away any other defences either – so if you find yourself on the 15th floor of a block of flats and your 15 year old is coming at you with a knife, your defence is not going to be “I slapped him because he was being a tad rebellious” – it is going to be “I acted in self defence because I thought he was going to stab me”
So there is no smacking ban.
This stuff is easy to look up.
It’s even easier for David Lammy MP. That’s because he is a barrister. A man with a first class honours degree in Law.
Well you could have fooled me David.
- What child-smacking ban? Why Mail was wrong on the law (liberalconspiracy.org) – <– Have a look at this one, as mentioned above !!
- David Lammy MP: Smacking law confusion contributed to riots – Metro (metro.co.uk)
- Labour MP David Lammy: Smacking ban led to riots (dailymail.co.uk)
- Hitting a child harder will not stop riots, Mr. Lammy, but it may cause them – Daily Mail (dailymail.co.uk)
Half way through the afternoon today I suddenly spot links on Twitter to a breaking news story relating to that darling of the media – our very own SuBo – AKA former Britain’s Got Talent runner-up Susan Boyle.
It would seem at first glance that she’s been the victim of some rather caddish behaviour from legendary former Velvet Underground frontman Lou Reed.
Within what seems like moments this story is all over the net. With many outlets – such has the Mail On-Line claiming America’s Got Talent 2010: Susan Boyle banned by Lou Reed from singing his song (also here at Ace Showbiz Susan Boyle Cries After Banned by Lou Reed From Singing His Song ) with other sources seemingly suggesting that Lou Reed has somehow banned Su-Bo from taking part in the America’s Got Talent 2010 show – for instance the Hello Magazine website Susan Boyle pulls out of US show over Lou Reed song and also The Metro Susan Boyle ‘in tears’ after Lou Reed pulls the plug on her America’s Got Talent performance
What all of the sources (and many many others) report is that Susan was due to sing a cover of Lou Reed’s song “Perfect Day” on the enormously successful America’s Got Talent – the counterpart to the Britain’s Got Talent show that shot her to fame. It would seem that permission from the copyright owner of the song is needed for her to perform the song on television, and that Lou Reed, the writer of this song, has denied permission – only two hours before the performance, and the only reason given that he’s not a fan of Susan Boyle.
Sounds a bit mean.
Or does it ?
What I’d have liked some of these intrepid reporters to have done was to dig a little deeper.
This is a major television show – it’s as big as they come. I wonder why no one has asked why the issues concerned with copyright weren’t sorted out – BEFORE the day of the performance ?
I wonder why no one has asked why the production company didn’t have another song lined up ? She is after all a fairly prolific recording artist now – it would not have been difficult to have had a reserve song up her sleeve – particularly if they were having difficulty chasing up permission to perform the original song.
I wonder why no one’s got a statement from Lou Reed’s team ? or Lou himself ? Because, while I’m sure he’s not a fan of Susan Boyle’s, I can’t imagine he was a fan either of many of the people who covered the song for Children in Need a few years back – although he did describe the recording as the best cover ever of his song.
Could it be perhaps that the sheer number of people involved in that recording, and the charitable nature of the recording, complicate the copyright issue ?
Is it not feasible that someone working for Lou, faced with a request for permission to perform a song, given just a few hours notice, and unable to contact the man himself, knew all of that, and erred on the side of caution by not giving permission. It’s possible in fact that Lou Reed was never even consulted.
Of course it’s also possible that he’s being unreasonably difficult, and nasty to Susan Boyle – but let’s be absolutely clear – if he owns the copyright (do we know that he does ?) – then he has every legal right to deny her permission to perform it. The issue is also not raised of how much they were willing to pay in order to perform it – remember that although this song was made popular by Lou Reed among his own fans, it was made immensely more popular among the general public by the BBC recorded cover which raised many many thousands of pounds for charity.
So America’s Got Talent are rather piggy backing on that success in performing the song, and such a lucrative show should presumably not get this song free of charge. Would it be morally right though for Lou Reed to take a whacking great sum ? These are interesting things to ponder over – and I’d suggest that the pondering would take longer than a couple of hours.
So I’ll be interested to see if any of these news outlets investigate further and give us the full story.
I’m not holding my breath though.