Terry Carson: Peers fit to rule on smacking

Anyone following the smacking debate could be excused for thinking that part of the purpose of the proposed law change is to diminish the influence of our jury system.

The principle that everyone has a right to be tried by their peers is a hard-won democratic right that now appears to be under attack.

Those taking an extreme view on the issue of smacking children find it particularly galling when a jury occasionally acquits a parent by deciding the force used was reasonable.

The reform enthusiasts have to face up to the unpleasant fact that their views are not necessarily shared by the 12 persons, chosen at random, who form a jury.

As it is highly unlikely that the men and women who are representing the community on the jury are all closet supporters of child abuse, the reformers are forced to acknowledge that their fervently held views may not be as mainstream as they would like to believe.

Taking away the rights of a jury to decide reasonableness is one way of removing their embarrassment.

Recently the Law Society has made submissions on Sue Bradford's bill to repeal section 59 of the Crimes Act 1961.

The society suggests that instead of repeal, judges should be given greater power to assist juries to decide what is reasonable.

Although this suggestion has superficial attractiveness, a moment's reflection also shows that it is potentially insulting and somewhat arrogant. Do adult New Zealand jurors really need someone to guide them on what constitutes reasonable force when disciplining children?

The Concise Oxford Dictionary defines reasonable as being fair and sensible.

Many jurors will be ordinary New Zealand parents, on modest incomes, living in the suburbs and dealing with children and family issues every day of their lives.

Do they really need a judge or a highly paid professional expert, or a politician from a minority party, to define for them what constitutes fair and reasonable force for the society in which we all live in 2006?

Obviously, ideas about the acceptable discipline of children and the use of force are undergoing change in New Zealand.

However, it is arguable whether there is yet overwhelming majority public support for the repeal of section 59 of the Crimes Act 1961.

Until public support for change is overwhelming, the present system of allowing juries to decide the issue of reasonableness on a case-by-case basis, remains the fairest and most democratic way of determining the social acceptability of the conduct of New Zealand parents whose discipline methods are under scrutiny.

The main argument against juries deciding the issue of reasonable force in alleged child violence cases seems to be, to quote the words of the Law Society spokesperson, that they have led to some startling acquittals.

As section 59 has been around in the law for over 45 years, and concern about startling acquittals is a fairly recent phenomenon, it seems that most of the time juries have delivered entirely predictable convictions.

In other words, juries deciding cases of alleged child abuse act in exactly same way as juries deciding any type of case.

Unlike those who criticise or cannot understand the particular decision of a jury, the jurors have sat through and heard all of the evidence and have often spent days observing the complainant and defendant.

Perhaps sometimes the jurors do apply that well-known extra-legal principle - there but for the grace of God go I.

If that is the case, I suggest we congratulate jurors on their humanity and understanding of real life.

* Terry Carson is a barrister and solicitor who has practised Family law for 35 years.