Committee (4th Day) (Continued)
161: After Clause 43, insert the following new Clause—
“Diminished responsibility: children
Section 34 of the Crime and Disorder Act 1998 (c. 37) (abolition of rebuttable presumption that a child is doli incapax) is repealed.”
I move Amendment 161 with a degree of pessimism. We have already referred to the reversed provisions of doli incapax today, and I will be very brief. I was hoping that this would be debated before the other amendment on children, but I throw it in anyway and offer it for discussion.
This amendment reverses the Crime and Disorder Act 1998 which, in turn, reversed the previous law that children under the age of 10 could not be held criminally responsible for a crime. The law with respect to children who kill is very different in England from that of most other European countries. It is not just that the age of criminal responsibility, at 10 years old, is exceptionally low, but also that the doctrine of doli incapax, or being incapable of crime, was abolished in 1998. Moreover, the distinction between manslaughter and murder means that those convicted of the latter are subject to a mandatory penalty of indefinite detention, with its duration assessed by the Home Secretary and not by the courts or the Parole Board. This means that children who have not yet reached puberty are treated as if they were adults but their handling puts them at particular disadvantage. There was a very celebrated case that preceded this law.
There are several reasons why this seems quite unreasonable to me. First, there is extensive evidence which we have talked about before that the important development changes continue throughout the teenage years. To reduce this to the question of whether children know right from wrong is highly misleading. Even pre-school children appreciate this distinction, although they approach it more in terms of fear of detection and the punishment that will follow rather than from internal justice principles and concern for the victims of wrong acts.
During early adolescence, young people’s thinking tends to become more abstract, multi-dimensional and self-reflective. In addition, they are able to generate more alternatives in their decision-making. There is a marked increase in emotional introspection, together with a greater tendency to look back with regret and look ahead with apprehension. The transition to more adult modes of thinking does not emerge, as we have already heard, from any single age, but it is clear that it is very far from complete at age 10. As with any aspect of development, there are marked individual differences in how children achieve maturity.
The second consideration is that homicide is rather different from the rest of juvenile delinquency in that it has not shown the same marked rise over the past half century or so. Nevertheless, homicide and serious juvenile delinquency have much in common.
Thirdly, children who commit homicide are likely to be seriously psychologically disturbed—again, as we have discussed—and often have experience of very serious adversity. This means that they will usually require residential care in order to receive the intensive psychological treatment and rehabilitation that they urgently require. However, it also means, very positively, that rehabilitation is a realisable goal.
As with any other criminal behaviour, there is a crucial need to balance the protection of society and the rehabilitation needs of the offender. Changes in the law should be viewed in terms of meeting both. That is, the change should not automatically mean that children receive a reduced sentence; rather, the argument is that they should be treated with respect to the differences between children and adults. This means that if we are to fail with our previous amendments—although I hope that we shall support the noble Lord, Lord Carlile of Berriew, and his colleagues if they come back with their amendment on Report—there would be a need to reintroduce doli incapax in that it is suggested that it would be reasonable to assume a lack of capacity below the age of 14 but to reverse the assumption over that age.
In either instance, it should be open to the courts to decide in the case of that particular child with that particular background and with that particular crime that there was capacity below the age of 14 or that there was not over it. It is essential that careful consideration be given to the state of the offender before release, but this needs to be done with the benefit of expert advice from the Parole Board—I am afraid that the Executive would not be my choice. It would also be helpful for juveniles to have one offence of homicide, removing the distinction between manslaughter and murder with the implication that follows from that. I beg to move that we reinstate an amendment for doli incapax.
In the light of the Government’s refusal to recognise the concept of developmental immaturity in relation to children, the lack of a transitional stage in a child’s development as a potential criminal between the ages of 10 and 14 is a matter of great concern to these Benches. Set at 10 years of age, the threshold for criminal responsibility in England and Wales is one of the lowest in western Europe. It is 13 in France, 14 in Germany and 16 in Spain. A number of those countries also have something akin to doli incapax in force as well as a higher age of criminal responsibility. Indeed, it is perhaps shocking that the age of criminal responsibility in this country is 10, whereas for males in Iran it is 14 years and nine months. Horrifyingly, for females in Iran, it is eight-and-a-half years, but perhaps we need not trouble with that further at this stage.
Our age of criminal responsibility is set so low as to cause concern that, without a special category of developmental immaturity, there is a risk of unjust conviction of those who simply are not of a capacity fully to understand what they are doing or have done. Even the United Nations Committee on the Rights of the Child has expressed concern about the United Kingdom’s law of juvenile criminal responsibility. That committee said that it might be incompatible with Articles 37 and 40 of the UN Convention on the Rights of the Child to have our age of criminal responsibility set so low, leading to a recommendation that,
“serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom”.
That comment was made by the UN before the abolition of doli incapax. It would seem therefore odd that the abolition of doli incapax has not been accompanied by raising the statutory age of criminal responsibility.
As a result of all the legislation that has been enacted so far, in particular the Crime and Disorder Act, and the proposed legislation we are considering tonight, all children of 10 years of age and more will be presumed and treated as having the same moral culpability and ability to conduct themselves as an adult. We illustrated in the last debate that it could be even worse than that—that children could be in a less advantaged position than adults.
In the case of C (a minor) v DPP, Lord Lowry, quoted from elsewhere,
“No civilised society regards children as accountable for their actions to the same extent as adults”.
Without the measures which the noble Baroness has been urging, or something like them—she has put it broadly and I wholly support her—we will be left as a society which regards children not only as accountable for their actions to the same extent as adults but we shall leave children as presumed to be accountable to the same extent as adults for actions for which in fact, as any good psychiatrist will tell us, they are not actually fully accountable. There is a real danger that if we pursue this legislation to the letter in its current draft form there will be a severe injustice to children which it will be left somehow for the courts to sort out.
In the penultimate debate, the noble and learned Baroness, the Attorney-General, suggested that what was being proposed by the noble and learned Lord, Lord Lloyd, was a fudge. If the Government will not meet these problems, as described by the noble Baroness, Lady Murphy, the fudge will simply be handed on to the courts. The Court of Appeal will have to produce the fudge in order to safeguard the interests of children. That should not be the task of the Court of Appeal; it should be the role of this Parliament and this House to produce legislation that meets the apprehended justice of cases like those we have in mind.
This is a further attempt to encourage the Government to recognise that there is a real difference between children and adults in criminal offences. Of particular importance is the debate before dinner about developmental immaturity. There is now another effort by the noble Baroness, Lady Murphy, to attack the same point. It is particularly important that the Government remember that the four Children’s Commissioners of the United Kingdom were extremely critical of the approach towards the criminalisation of children, and young children in particular, in this country. The United Nations Committee on the Rights of the Child was also very critical. It praised the Government for some improvements but it remained extremely critical.
There is a danger that the Government of the day, and I suspect all Governments, are overinfluenced by the popular press and particularly certain sections of the press that demonise children and treat all children who are old enough to go to court and who commit really serious offences as evil. The Government should be giving a lead and not responding to the soundbites of the newspapers in relation to the way in which children are to be treated in the same way as adults.
I regret that I cannot support the letter of these amendments, but I certainly support their spirit. I will reflect for a moment on the context. Your Lordships will recall the UNICEF report which put us at the bottom of the developed world in terms of child welfare. That was followed by the report A Good Childhood by the Children’s Society, which again highlighted how poorly we perform in many ways for our children in this country. Subsequently there was a report from York University which put us in a league slightly above Romania, Lithuania and other countries with regard to our children.
One thinks about the way in which we treat our social workers, who are supposed to protect children, the low status they have been provided and how they have been treated as pariahs—or the staff at children’s homes, who work with the most vulnerable and challenging children. There are members of staff paid the same as or less than staff at supermarket checkouts. We should think about the context in which this takes place.
I commend all the excellent work that the Government have done in the past 10 years in seeking to remedy some of these situations. However, if we look at ourselves in the mirror, we have to say that somewhere or other we have rather lost our way in terms of prioritising the welfare of our children. That may be another reason to take this opportunity to look extremely carefully and think again about how children are treated in the courts. Perhaps we should be open-minded and think that, given the cultural context in which we operate, here is an opportunity to make more modern how we treat children in our courts.
I wholly support the amendment and with a greater degree of optimism than my noble friend Lady Murphy—my optimism being that the Minister, after listening to the powerful arguments being put forward, will listen and think again and that the Government may back this amendment.
It cannot be right logically to think that children of 10 can be treated the same as adults for their behaviour and be subjected therefore to the same justice system or criminal system. The noble Baroness has a lot more experience in this matter than I have, as an obstetrician, and she is right in saying that children of that age may be severely psychologically disturbed and require more care rather than trial in the courts. So I hope that the Minister will back the amendment.
I had not intended to speak in this debate, because many of the things that relate to it were discussed during the debate just before the dinner hour. However, the more I thought about the Attorney-General’s response, the more troubled I became by the message that I got from it. Below the age of 18—and no differentiation seemed to be made between those who were 10 and 11 and those who were 17 or 18—there was, first, no persuasion that there was a problem or even a potential problem of injustice here. The difficulty that was adduced was that we should think about teenagers who produce knives and stab somebody and whether they should not be held responsible. We have to think seriously about the problems, but the idea that we should somehow hold 10 and 11 year-olds as responsible in the same kind of way as people in their twenties, thirties, forties or fifties seems to me extraordinary.
One thing that we need to think about is that, physically at least, many children are becoming more mature earlier; the better they are fed, the more mature they become at an earlier stage. Therefore, the kind of ages that might have been appropriate for responsibility 20 or 30 years ago may be a little bit lower. On the other hand, children are now, through television, the internet and other things exposed to a degree of disturbing stimulation that may actually make it more difficult for them to cope with some of the stimuli that they are getting than children were before. I do not regard this as a simple matter; it is a complex and difficult matter. However, if one pulls back from it, does one really believe that it makes any kind of sense or justice to hold children of 10, 11 or 12 as responsible as when they are in their late teens or their twenties? People in this Parliament decided many years ago that they would change the educational system of this country because they did not believe that it was fair that decisions should be made about children’s educational capacity at the age of 10 or 11. I speak not about whether that was a good idea or other, but that was the decision that was made. The decision being made now is that children of that age can be made responsible for the most serious crimes that we can imagine. That seems to me to be an inconsistency of approach and understanding that I find difficult to struggle with. I do not suggest—and I know the noble Baroness does not either—that this amendment solves all the problems, but I did feel that it was necessary to come back, even after a short period of thought, to say to the Minister that I really think we have a problem here. It may be that perhaps we should be looking at the age of 13 or 14 if people find it difficult to say 16, 17 and 18-year olds, who get involved in all sorts of activities. There is such a profound difference between the child of 10 or 11 and the teenager of 17 or 18, that simply to lump them all together seems to me to be inappropriate, yet it seems that the arguments did that.
The Government will undoubtedly appeal to the noble Baroness not to press her amendment; I appeal to the Government to take her amendment and the spirit of it back and to see what they can bring forward to satisfy us at a later stage.
I thank the noble Baroness, Lady Murphy, for Amendment 161. It is an important subject. I am very conscious, as have all speakers been, that we went over some of the general ground in a long and important debate before our adjournment. The amendment is about the presumption of doli incapax that was in our law until 1998. I would like to make some comments in my reply dealing with that issue and about some of the other issues.
I take exception in a gentle way with the noble Lord, Lord Patel, when he claims that young people between the ages of 10 and 18 are subject to the same justice system as adults. They are not. They have youth courts, and the way they are disposed of by the courts if they are found guilty could not be more different. The trouble that is taken with young people—indeed, the noble Earl, Lord Listowel, was making this point before dinner—who are convicted of committing offences is different in kind from the trouble that is taken with those over that age. I will return to that when I have dealt with the subject matter of the amendment.
The doctrine of doli incapax involved a rebuttable presumption in criminal proceedings that a child of between 10 and 14 years of age did not know the difference between right and wrong and was, consequently, incapable of committing crime. This is a probing amendment and obviously we could not just put the law back to what it was by the amendment, so let me try to explain why we do not believe that that doctrine should be resurrected.
In the White Paper No More Excuses, published in November 1997, the Government said:
“To prevent offending and re-offending by young people, we must stop making excuses for youth crime. Children above the age of criminal responsibility are generally mature enough to be accountable for their actions and the law should recognise this”.
That remains our view. It is both the right approach and, as it happens, also the view of the vast majority of people who live in our country.
Our communities are entitled to be protected from anyone who sets out to cause harm and to have confidence that the criminal justice system will protect them and deal with those who break the law, but will take special notice and care of those who break the law but are of a young age.
The presumption in practice led to delays, to cases being dropped and to unjust, paradoxical and unfair outcomes for victims, for witnesses and, not least, for the young person in question. In addition to having to prove both that the defendant committed the criminal act and that he or she had the required mental state at the time to the criminal standard—that is, beyond reasonable doubt—the prosecution in cases involving a child aged under 14 would have to rebut the presumption. I say to the noble Lord, Lord Carlile, that I am not sure that some of those other countries that he mentioned, where the age of criminal responsibility is older, have quite the same standard and burden of proof as we have in all criminal proceedings in this country. That presumption could be rebutted only by clear positive evidence that the child knew that his or her act was seriously wrong at the time when he committed the act concerned. Mere proof of intentionally doing the act concerned, however terrible or obviously wrong that act might have been, could not establish the requisite guilty knowledge and rebut the presumption.
That would bring back delay into our court system, and nothing is worse than delay, particularly when it involves young offenders. It would also bring back the need for further evidence, quite separate from the evidence of the offence itself, to show that the young person knew what they had done was not just wrong but seriously wrong at the time when he or she committed the act concerned.
We are determined that people who offend—and that includes young people, too—take responsibility for their actions. We should not return to a culture of excusing such behaviour. That is in no one’s interests, least of all those of the young people themselves. We all accept that there has to be a point at which an individual becomes responsible for what they do. The courts of course take account of the young person’s age, first, in how the case is conducted. It is conducted in separate courts from adults, in youth courts set up specifically to deal with young people. Account is taken, secondly, in the disposal: the sentence handed down.
About a year ago, we spent night after night discussing a criminal justice Bill. We discussed for a long time, the noble Lord, Lord Kingsland, may recall, issues surrounding youth sentences: what should we do with young people who are convicted of offences? The last thing being suggested was that we should somehow treat them as adult offenders. So it is not fair to say that they are somehow subject to the same justice system, as though there is no distinction made between young people and adults under our justice system. Every difference is made, particularly in terms of venue and how we deal with them if they are convicted.
I very much took on board the point of the noble Earl, Lord Listowel, about social workers. They are completely unfairly denigrated, and I find astonishing the amount of money that experienced social workers can get for a lifetime’s work in that profession compared to, for example, what young lawyers can sometimes get. The comparison is ridiculous under our system, and it is right that a Minister should say that social workers do a fantastic job, particularly for young people. I thank the noble Earl for his comments.
The suggestion was made that we do not react enough as a Government, whatever party is in power, to the influence of the press—and the popular press, at that. Well, sometimes that may be true. I concede that, of course. However, on the case that I think the noble Baroness, Lady Murphy, was hinting at that led to a change in the law—the Bulger case—after their years in custody, being looked after as young offenders should be, those two young men had a chance to start a new life. That was done with complete hostility from large sections of the popular press, but it was still done. Governments and the system do not always give way to popular opinion of that kind. I hope that some credit can be gained from that.
I end on a slightly lighter note, if there can be a lighter note on such a serious subject. I invite noble Lords and the noble Baroness in particular to look at the Mail online this morning, which deals with a study from the University of Chicago, which makes the point—I am not saying that this is right or wrong, but it is an interesting part of the argument—that,
“Children have an inbuilt sense of right and wrong, researchers claimed last night”.
I hand my copy to the noble Baroness. There is an argument that states that children do have that inbuilt sense. They are talking about the ages from seven to 12. It is part of the argument that psychiatrists and others use. We would be taking a retrograde step if we were to change the law back to what it was prior to 1998. I take many of the points that are made about how children and young people are different from adults and need to be treated differently from adults once they have been convicted under the criminal justice system. I would argue that they are treated very differently under our system and that is the right way for us to carry on.
Having thanked the noble Baroness again for instigating this short debate, I ask her to withdraw her amendment.
Some of us believe in original sin and others do not. Perhaps the Daily Mail is going back to the original sin hypothesis. I am aware that in expressing my views on the amendment I was not hoping that we would obtain a reversal in the legislation; I admit that. I noticed that those who appeared to speak in its support were not speaking for the amendment. With friends like that, who needs enemies? I am grateful for their apparent support for this amendment. Nevertheless, I wanted to highlight that we hark back to the Bulger case. Such cases have caused deep concern, although I recognise that it has been said that the system has managed to take care of those young men. Nevertheless, the procedures that they went through were troubling and led to a tightening of the way in which young children were viewed by the courts in law at any rate, even if the reality has been somewhat different.
I hope that our debates before the adjournment will come back strongly, because we have not reached the bottom of how we address this point. I would much prefer it if, on Report, we thought clearly about developmental immaturity in relation to children, because there seems to be enormous support around that issue. This amendment does not seem to be the one to have made it there, so I beg leave to withdraw it.
Amendment 161 withdrawn.
Amendment 162 not moved.
House adjourned at 9.49 pm.