Committee (4th Day) (Continued)
150: Before Clause 42, insert the following new Clause—
“Reform of the law of murderReform of the law of murder
(1) A defendant (“D”) who kills or is party to the killing of another is to be regarded as guilty of murder where D intended to cause serious injury to another person or persons and was aware that there was a serious risk that another person might die as a result of D’s conduct.
(2) A defendant (“D”) who kills or is party to the killing of another is to be regarded as not guilty of murder, but liable instead to be convicted of manslaughter, if D was unaware that his conduct involved a serious risk that another person might die as a result of that conduct.”
The amendment stands in the name of my noble friend Lord Thomas of Gresford. I hope that the Committee will grant me the indulgence of allowing me to be his, albeit inadequate, substitute. Rumour has it that my noble friend is in South Africa trying to persuade lions to roar three or four points louder than in the past couple of weeks. When I was a foal in a barrister’s stable in which my senior colleagues were, as they now are, my noble friends Lord Thomas of Gresford and Lord Hooson, I was taught that if someone else gives one a good point on a plate, one should move fast and make it one’s own. That is what I seek to do in moving this probing amendment.
The background to the amendment lies in the successive pusillanimity of Governments of every possible persuasion. I hearken back to the old Criminal Law Revision Committee, which I suspect was possibly in place before anyone in this House was practising at the Bar. The noble and learned Lord, Lord Lloyd of Berwick, has just made a signal confession, so he will remember it well—I tempted him. For a couple of generations and more, Governments have not had the courage to remove the mandatory life sentence. We are now going to embark on a series of debates on Part 2 of the Bill concerning complications of the law designed to avoid removing the mandatory life sentence, but these are an obstacle course set up against the merits of something that could be much simpler. I say to the Government at the outset that it is high time that we no longer had the mandatory life sentence and that we had something along the lines of this probing amendment—I had hoped that we would receive it from the Government who, to their credit, introduced the Human Rights Act—which is founded on the Law Commission’s report entitled Murder, Manslaughter and Infanticide of 28 November 2006.
I fear that the failure to remove the life sentence is either a lesson learnt from, or possibly a denial of, the old Burkean adage that a parliamentarian should be a pillar of what is right and not merely a weathercock of public opinion, although I am unsure as to what public opinion really now is on the mandatory life sentence. I think that if we were to ask the public a series of intelligent and intelligible questions about the mandatory life sentence, we might find that they took a different view from some of the popular papers. My real fear is that the Government may have gone below the superficiality which is usually exercised by Governments and discovered what happened to Burke when he said that in a celebrated by-election in the West Country, which history reveals he unfortunately lost.
This probing amendment provides that a person shall be guilty of murder if they intended to cause serious injury to another person and were aware that their actions could result in the death of another person. Proposed new subsection (2) provides that a person shall be convicted of manslaughter if he was unaware that there was a serious risk that his actions could result in the death of another person. This is very close to the Law Commission’s recommendation in 2006. It recommended the adoption of a three-tier structure of general homicide offences to replace the current two-tier structure of murder and manslaughter.
There was considerable debate on the consultation paper issued by the Law Commission prior to its full recommendations, and there was a great deal of support for its proposal from, for example, the resident judges of the Central Criminal Court. It is worth emphasising that the daily, although not exclusive, diet of Central Criminal Court judges, High Court judges and senior circuit judges—every man and woman among them—is murder cases. They try more murder cases than possibly all the other courts in the country added together. The proposal also had the support of the criminal sub-committee of the Council of Her Majesty’s Circuit Judges, importantly Victims’ Voice, JUSTICE, the Crown Prosecution Service, which saw the proposal as entirely practicable, the Criminal Bar Association, the Law Society and even those radicals, the criminal law teachers at the LSE.
There were groups opposed to the provisional proposal—among them, the Higher Court Judges’ Homicide Working Party, which thought that the restriction in the consultation paper of the Law Commission made the definition of first degree murder too narrow, and that objection is reflected in the amendment. The Higher Court Judges’ Homicide Working Party thought that first degree murder should be extended beyond cases of intentional killing to cover homicides in which the offender acted on an intention to do serious injury and was recklessly indifferent as to causing death. It was the virtually unanimous view that people should not be convicted of murder, at least without a distinction between first and second degree, if they either did not intend to cause serious injury or were not recklessly indifferent as to causing death.
The present law causes real difficulties. Judges are faced with verdicts of juries which have said “guilty” to murder, leaving the judge to decide whether there was an intention to kill or an intention to cause grievous bodily harm. The proposals in the amendment would enable a jury to make the choice by grading the offence at the appropriate level. Judges now have immense experience of sentencing in homicide cases. In reality, we have a rather artificial sentencing position now. Judges do not like telling lies forced on them by statute. We now have a situation in which a judge is forced to pass a life sentence because it is mandatory. Having passed the life sentence, the judge then indulges in a completely different exercise in which he or she in effect says, “This is not really a life sentence. I am now going to impose a tariff”. The amendment would bring the law into a consistent position with practice and would also bring the public, in the form of juries, into the decision-making process by which the jury would qualify the act complained of and committed by the defendant.
It is therefore my suggestion that this kind of improvement of the law would make a significant step forward. It would mean that those who watch homicide trials—particularly the media, since they are inclined to be so critical of what happens in court—would see that homicide cases were being dealt with in a realistic, common-sense and logical way. There would no longer be a large gap in the degree of culpability involved, as between the alternative fault elements in the current offence of murder. I was also taught in that stable that one of the virtues of cogency is brevity; so I beg to move.
I will address Amendment 150, which has been taken over by the noble Lord. I was, indeed, a member of the Law Revision Committee all those years ago under the chairmanship of a judge of the Court of Appeal, whose name I cannot now remember, unfortunately. I briefly served as chairman of the Law Revision Committee, but as soon as I became chairman, the committee never sat again.
The noble Lord has done a good service by moving this amendment, because it shows how strange it is that we should be considering the partial defences to a charge of murder before we have determined what murder is or should be. It is all the stranger since the Government consulted the Law Commission as long ago as 2002 on the question of partial defences, received a report in 2004, and have done nothing about it since, until today. Why now?
In his letter of 18 May, the noble Lord, Lord Bach, was kind enough to say that there were a number of stakeholders, among whom I would include myself, although I can never quite imagine myself as a stakeholder. I am not sure what my stake would look like. He concedes that there are a number who would prefer the Government to look at the current Law Commission proposals as a whole, and not in parts. I say amen to that. The Minister said that a number of other stakeholders took a different view. I cannot help wondering who those other stakeholders are and, more importantly, what their reasons are. Perhaps we might be told.
Perhaps we can also be told the real reasons why the Government have still done nothing about the first 64 pages of the current Law Commission report, published in 2006, which set out its proposals for the new structure. It is the structure that we should be talking about today, not the partial defences. The Government have done nothing about the structure in the past two and a half years. Is the real reason simply that they cannot make up their minds? They say that they want to proceed step by step. That is all very well, provided that you take the steps in the right order. Here, they are taking step 2 before step 1, which usually ends in disaster.
Having said that, I shall now turn to the amendment. I was not sure whether the noble Lord was confining himself to the terms of this amendment, or anticipating the terms of mine. I admire the drafter of the amendment, the noble Lord, Lord Thomas, for his courage in defining the law of murder in two short paragraphs. However, I cannot support his amendment, for the following reasons. Subsection (1) of the proposed new clause corresponds to the Law Commission’s definition of first degree murder, except that it leaves out the defendant who intends to kill. Intentional killers are surely the most serious of all. They should be expressly included in any definition, and certainly not left to be inferred. Subsection (2) is also unsatisfactory as it would exclude from murder the most common case in practice—the defendant who intends to cause serious injury or harm, but who is unaware that he might be likely to cause death. It would also exclude the defendant who intends to cause some harm but not serious harm, but who is aware that his act might cause death.
They should be included in any definition of murder, as recommended by the Law Commission. They are too serious to be treated as manslaughter. At any rate, they should not be excluded from murder, as the amendment proposes, without very prolonged consideration which we cannot give it now. With great respect, I hope that the noble Lord will not press his noble friend’s amendment.
I share the views expressed by the noble and learned Lord about the legislative exercise in which the Government are currently engaged. We are, in effect, being asked to consider the partial defences in a vacuum. Until we know what they will be measured against—what the Government will say about the component parts of the crime of murder—we are not in a position to reach any conclusions about the merits of the measures that are contained in the Bill.
On the amendment tabled by the noble Lord, Lord Thomas of Gresford, so ably presented this afternoon by the noble Lord, Lord Carlile of Berriew, I respectfully share the concerns expressed by the noble and learned Lord, Lord Lloyd of Berwick, on the absence of intention to kill in the definition of the offence. Without that, the amendment is plainly incomplete. I hope that the noble Lord, Lord Carlile of Berriew, will consider the matter between now and Report.
I admit to having had an interest in the law on homicide ever since serving as a psychiatrist on Lord Lane’s committee back in 1993 to consider the penalty for homicide. That report, like many others, recommended the abolition of the mandatory life sentence. It was binned immediately by the then Home Secretary, Michael Howard.
As the noble Lord, Lord Carlile of Berriew, said, the law is in urgent need of reform, if only to prevent what I as a psychiatrist might call the unseemly Lobster Quadrille danced in the courts by expert forensic psychiatrists who are obliged to consider these various partial defences and the way they are involved in the verdict, in order to prevent the mandatory life sentence being implemented.
I was a perennial optimist and had hoped that the Government would have the courage to make progress. I regret very much that the Executive appear so set against what would be by far the most sensible and important reform—the abolition of the mandatory life sentence. That militates against achieving “individualised justice”, both generally and specifically in relation to mental health and many other factors relevant to proper sentencing. It is sad that the Government have failed to accept the Law Commission’s recommendations this time round. Those do not go as far as we would like, but a variant would at least devolve from the Executive to the judiciary sentencing powers for a large percentage of cases. That of course is the sticking point: the power that the mandatory sentence gives to the Executive. It seems that that is just too much to be readily given up.
As I am not a lawyer, perhaps I may be permitted to offer some praise for the judiciary in the matter of appropriate sentencing. We have a system of checks and balances on sentencing that I do not believe require this executive control. We also have an excellent parole board system that enables the date of release to be reviewed at an appropriate time. After all, people are going to be released. I find it extraordinary that the Secretary of State would wish to retain the decision-making powers in this matter when a whole panoply of executive systems is available to enable the decision to be made by proper experts without political interference. The amendment is an attempt to move away from that in a way that—thinking of debates that the House has had in previous years—many of us would feel sympathetic towards.
I do not want to comment on the specific wording of the amendment, because this may not be the right one. I listened carefully to what was said by the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Kingsland. The wording of this amendment may not achieve what we want to achieve. Nevertheless, a review of the law on homicide is sadly missing from this Bill. We will be spending the rest of this evening debating matters that would be far better addressed at sentencing rather than at the point of verdict. It is a terrible shame that we have got to this point and not been able to address this major issue.
I commend the noble Lord, Lord Carlile of Berriew, for standing in so manfully in the place of the noble Lord, Lord Thomas of Gresford. I, too, agree with the analysis of the noble and learned Lord, Lord Lloyd, about the flaws in the amendment itself. However, I take it very much as it was put by the noble Lord, Lord Carlile—that it is a probing amendment to enable us to have this debate. It was not suggested that these amendments are necessarily correct in form, so I make no point about that at all.
We would argue very strongly that we should not make the best the enemy of the good. In responding to Amendment 150, I must acknowledge that there are those who would have wished—I count among them each participant in this debate—that we had dealt with the whole area of murder law comprehensively and at once. We made clear at the outset that the provisions of the Bill are the first part of a staged approach. We will be looking at the Law Commission’s other recommendations, especially those on a new structure of homicide comprising new offences of first degree murder, second degree murder and manslaughter, in the light of the effect of the changes to the partial defences proposed in Clauses 42 to 46.
The noble and learned Lord, Lord Lloyd, said that we should have dealt with the structure first and the partial defences second, but noble Lords who have spoken know as well as I that these provisions have caused real interest and contention over a number of years. Many jurists have scratched their heads, debated, disagreed and made contributions, and it was clear that there was no unanimity of view about whether those proposals were definitively the best that could be devised. The issue is therefore whether we should do nothing or whether we should try to grapple with those things where there seemed to be some consensus and where there is an opportunity to do a bit of good and to take a step or two further along this road. The Government decided that we should try to deal with some of the issues that have caused difficulty.
We have to acknowledge that there is only so much time left in the current Parliament. I put it baldly: is there time for this Bill and for a Bill to deal with homicide? Everyone in this Committee who has grappled with this issue would acknowledge that dealing with homicide as a whole would take some considerable time and a great deal of care because we would have to get it absolutely right. Therefore, there is a question about how much can be undertaken. I cannot give the noble Lord the precise timing because I am in the happy position of not being one of the usual channels, not setting the parliamentary timetable and not being able to say when that should happen. However, it has been clear from the energy and commitment that has been shown not only by the Law Commission but by many others whom we have consulted that this issue has remained firmly on our agenda. It has never been taken off the boil or neglected. We have continued to discuss it, debate it, hone it and define it to try to make things better. I agree with those who say that the present law presents real difficulties and that we need to look at those things that we can change. That is what we are seeking to do in moving the agenda forward in relation to the partial defences.
I have to say to noble Lords that there was a great deal of support for changing the way in which we deal with partial defences. There was therefore a realistic assessment that we could do some good work in that area, and perhaps only in that area, in trying to make a difference. That is what we now propose to do. It is critical that we get this area of law right. The noble Lord, Lord Carlile, referred to what the weathercock of public opinion would say in relation to mandatory life sentences. I know that some people may not wish to take this on board. However, I have had the great privilege of speaking to many victims who have suffered a loss in their families as a result of murder and manslaughter. I must tell noble Lords that it is a matter of great importance to them that there is a mandatory life sentence. It is something that we must grapple with, because it is their reality that they live with every day. That is something that we must face when we speak to them about why the person who is responsible for killing the person they loved will not get a whole-life tariff and will not stay in prison for the whole of their life, but will be allowed to go free. The weathercock of public opinion is very interesting.
Does the noble and learned Baroness recall the time when Parliament abolished the death penalty? One of the strongest points made when that law was passed was that Parliament did not mean by its action that it was taking murder as a light matter. It was suggested very strongly that the present system would be in place to make absolutely sure that those who murdered faced a punishment.
The noble Baroness is absolutely right. That is why I say that this is delicate and difficult. It is not easy to address it, because we want to keep confidence, but also to do what is proportionate and right for the victim while accepting the varying positions of those who offend. It is not easy.
I absolutely understand what everyone has said about a comprehensive law, and that it is better to do it all together and have a structure. However, I invite the Committee to accept that this is a pragmatic, appropriate step forward in the right direction and ask the noble Lord, Lord Carlile of Berriew, to withdraw the amendment. I understand why it was tabled and why it was important at the start of the debate for us to have an opportunity to explore the issues.
I am very grateful to all those who have taken part in this interesting debate, and particularly to the noble and learned Baroness the Attorney-General for her very considered response. With regard to the criticism of the text of the amendment—I emphasised that it was a probing amendment—I feel like an actor performing a play. If it goes well, you take the credit, and if it goes badly, you blame the author—which I shall do with enthusiasm on this occasion.
Having heard the contribution of the noble and learned Baroness the Attorney-General, I must say, with great respect, that I do not understand the staging of the approach that is being taken. If you are going to take a carefully considered staging approach, you start with the offence and define it. Having defined it, you decide how you are going to deal with it. The careful definition of the offence deals with the point made by the noble Baroness, Lady Knight—who knows that I respect very much her contributions both in this House and formerly in another place—by emphasising that an offence of murder really is an offence of murder, and that a life sentence, when a judge says, “You will go to prison for life”, will mean that you will go to prison for life for committing one of the most serious offences.
How long will we have to wait for all the stages of this approach? I recall—other noble Lords will, too—that in another place, something like 20 years ago, the then home affairs spokesman of the Labour Party in opposition, no less a person than Tony Blair, advocated very strongly the abolition of the mandatory life sentence. But today the noble and learned Baroness is giving us an assurance—a very welcome and genuine assurance—that we are still somewhere along a very long obstacle course with no indication when we shall reach the end and be able to consider the whole of this issue fully.
I do not believe that I have heard in this debate any empirical justification for why we do not start with a process that is staged in the way that we have described. I have heard no empirical justification for avoiding clarity of definition of the offence of murder. I have heard no empirical justification for why we do not abolish the mandatory life sentence. However, with the intent to return to the issue in due course, I beg leave to withdraw the amendment.
Amendment 150 withdrawn.
150A: Before Clause 42, insert the following new Clause—
“Murder: extenuating circumstances
(1) In a trial for murder the trial judge may in the course of his summing up direct the jury that if they are satisfied that the defendant is guilty of murder, but are of the opinion that there were extenuating circumstances, they may on returning their verdict add a rider to that effect.
(2) The judge may not give such a direction unless there is evidence on which a reasonable jury might so find.
(3) Where the jury has so found, the judge shall not be obliged to pass a sentence of life imprisonment but may pass such other sentence as he considers appropriate having regard to any extenuating circumstances found by the jury.
(4) If it appears to the Attorney General that the sentence so passed is unduly lenient he may refer it to the Court of Appeal under section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing).”
Perhaps I should make it clear that unlike the previous amendment, this is not just probing in nature. It seeks to enable a jury to bring in a verdict of murder with the rider that in the jury’s view, there were extenuating circumstances. The effect of that rider would mean that the judge would not be obliged to pass a sentence of life imprisonment, but could pass such other sentence as would be appropriate in the circumstances found by the jury. Perhaps I may start by listing some of the advantages that would flow if the amendment were to find favour with the Committee. I shall then mention the safeguards that have been built into the amendment, and finally, give the reasons for believing that the amendment would work in practice.
What are the advantages? I shall limit myself to mentioning only four, but I suspect that there are many others; indeed I know that there are others. In the first place and most obviously, it would provide an answer to the case of the mercy killing. The evidence shows very little support among members of the public for imposing a life sentence of imprisonment in the case of the genuine mercy killing. That evidence is set out in the Law Commission report at paragraph 7.47 and is confirmed by the Nathan committee, which reported in 1988. Indeed, many Members of this House served on that committee. The committee members had mercy killing well in mind when they recommended the abolition of the mandatory life sentence.
Perhaps I may say a brief word about the mandatory sentence. I remain firmly of the view that it ought to be abolished because it is the one single factor that makes coherent reform of the law so difficult. But I accept that, as things are for the moment, its abolition is not a practical possibility, if only because it is opposed by both of the main political parties. They oppose it for reasons that I regard as specious, but nevertheless, there it is. So we must find a solution other than the abolition of the mandatory sentence to deal with the practical problems that arise.
I now turn from the Nathan report to the Law Commission report. The commission was hamstrung by the obligation imposed on it by the Government to regard the mandatory sentence as continuing. That did not make its task any easier. But at paragraph 7.48, the commission did express the view that a life sentence is “neither necessary nor appropriate” when dealing with the genuine mercy killer. Regrettably, however, it made no final recommendation on that point, because—regrettably again—it had failed to carry out any public consultation on that particular question. It gives that explanation in paragraph 7.30 of its report.
However, the absence of that public consultation need not matter, because I do not myself believe, and I doubt whether any Member of this House present today believes, that there could be any doubt as to the views of the public on imposing a life sentence on a genuine mercy killer when the judge goes on in the same breath to say that he may serve no more than two or three years at the most. That makes a mockery of the law.
If it be said that the life sentence is necessary for the protection of the public in such a case, I would ask: is there any known instance of a mercy killer killing twice? So what is to be done?
Later on, we were to have come to an amendment in the name of the noble Lords, Lord Joffe and Lord Goodhart, in which they had proposed that mercy killing be charged as manslaughter, and not as murder. I think that amendment has now been withdrawn, but my amendment would achieve exactly the same result in practice, but by a different—and I suggest simpler—route.
Its advantage is that it would not require a definition of mercy killing on the face of the Bill. It would leave that question to be decided in each case on the facts by the jury, which is where the decision belongs. My experience of trying many murder cases is that the more one leaves to the jury the safer one is. So much then for the first advantage—mercy killing. I can deal with the other advantages more briefly.
The second advantage is that it would cater for those difficult cases, of which Clegg is the best known example, where a soldier or a policeman fires and kills in the agony of the moment. They may be technically guilty of murder, as the law now stands, but to have to sentence a man such as that to life imprisonment, when they will in practice serve only a year or two at most, again, makes a mockery of the law.
Thirdly, the amendment would cover the case of the battered wife. The Government believe that the existing law of provocation favours the husband who kills in anger, as against the wife who kills the husband after years of suffering abuse. They say that the law needs to be rebalanced in favour of the battered wife. That was the view that the noble Lord, Lord Bach, if he remembers, expressed to me in his letter of 18 May—a view with which I very largely agree.
The case of the battered wife is indeed a very deserving one, but it cannot be dealt with by rejigging the law of provocation, as we shall see when we come to Clause 44. The battered wife who makes a deliberate decision to kill her husband has not lost her self-control; nor can she be brought within it in any way by extending the existing law of diminished responsibility. On the other hand, the battered wife is just the sort of person who should be covered and would be covered by this amendment, as it would enable the jury to find extenuating circumstances.
Finally, I come to the fourth advantage. There have always been awkward cases on the edge of provocation and of diminished responsibility, like the case of Doughty. A parent who has been without sleep for nights on end because of a crying baby loses his or her temper and throws the baby on the floor, with fatal consequences. What conceivable point is served by sentencing such a person to life imprisonment? One thing is certain beyond any doubt: he or she will not do it again. The thought that other parents might be deterred is clearly absurd. Doughty is just the sort of case where a jury should be able to exercise what is sometimes called the jury equity and find extenuating circumstances.
I now turn briefly to the safeguards. The first and most obvious is that it would be up to the judge to decide whether there was evidence on which a reasonable jury might find extenuating circumstances. If there was no such evidence, he would say nothing about it in his summing up. If there was, he would say that it was for the jury, and the jury alone, to decide whether there were such circumstances. He would not give any indication, one way or the other, of his own view. There would, of course, be nothing to stop the jury from adding a rider where it had not been told about such evidence by the judge but the judge would not be bound by such a rider and would pass a sentence of life imprisonment in the ordinary way.
The second safeguard is that in any case where the judge does not pass a mandatory sentence, he would be obliged to give his reasons. Those reasons could then be looked at by the Attorney-General, and if the Attorney-General took the view that the sentence was too lenient, he or she could refer it to the Court of Appeal.
Lastly, I come to why I think the amendment would be effective. First, it is not dissimilar, although it is by no means the same as, to the old recommendation to mercy in the days of capital punishment. The Home Secretary was not obliged to accept such a recommendation, but in many cases he did. As far as I am aware, it did not cause any problem. That practice fell out of use but only because it was thought in those days to be unconstitutional for the jury to recommend mercy, which was the prerogative of the Crown rather than of anybody else.
Secondly, such a system was found to have worked well in France in the days when there were minimum sentences for a large number of grave offences. It was open to the jury in France to find “circonstances atténuantes”; in that case, the minimum sentence did not apply. Thirdly, and perhaps even more relevantly, this worked well in South Africa in the days when it had capital punishment.
Those are the reasons why I believe the amendment would work. Before sitting down, I should like to pay a very warm tribute to Professor John Spencer of Selwyn College, Cambridge. The ideas that I have put before your Lordships today were not mine in origin—I wish I could say that they had been—but his. I believe that they are a sensible and practical solution to many of the problems which will continue to arise until the mandatory sentence is finally abolished. If the idea finds favour with your Lordships, the credit belongs not to me but to Professor Spencer. I beg to move.
I strongly support the noble and learned Lord, Lord Lloyd of Berwick, in his Amendment 150A, to which I have added my name. I have for a long time believed that a mandatory life sentence for murder was wrong. Murder covers an immense spectrum, from sadistic, multiple murders to mercy killing of a beloved spouse or partner. The sentencing should be given an equally wide spectrum.
When the Government asked the Law Commission some years ago to report on changes to the law of murder, they expressly excluded from consideration the removal of the mandatory life sentence. This was, frankly, a surrender to the tabloid press. The Government almost certainly knew that the mandatory sentence was wrong; they must have known that the Law Commission would very probably say so; therefore, they prevented any discussion of the mandatory nature of the sentence.
We were left as a result with a complex proposal by the Law Commission for new legislation about murder, creating separate first and second degrees of murder which I believe were unnecessary and which have in any event not so far been implemented—nor have the Government shown any signs of doing so.
Mandatory sentences have a seriously damaging effect. They make necessary, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, the partial defences of diminished responsibility and provocation. Diminished responsibility is often used to exclude mercy killers from life sentence by an overgenerous interpretation of what constitutes diminished responsibility. This is an act of kindness by the judge and the jury, but it means that the law is being distorted. Provocation is an unsatisfactory defence, because it has developed into a complex legal principle which it is far from easy for a judge to explain to the jury. The law would be greatly simplified and made more humane by abolishing the mandatory sentence for murder and leaving what are now partial defences to be dealt with by a procedure which would enable sentencers to take them into account.
My original view was that all that was needed was to abolish the mandatory life sentence and leave sentencing to the judge. However, the amendment of the noble and learned Lord, Lord Lloyd, improves on this considerably—thanks are indeed due to the professor—by involving the jury as well as the judge. That is a crucial step. It is both correct in principle and would make the change in the law much more acceptable to the public. First, the judge would have to direct the jury that it could conclude that there were extenuating circumstances. Secondly, the jury would then have to agree that there were extenuating circumstances which justified a maximum sentence of less than life. Thirdly, there would be a possibility of appeal to the Court of Appeal against an unduly lenient sentence.
I would ask one question of the noble and learned Lord, Lord Lloyd, as a matter simply of explanation. I assume that the number of members of the jury required for finding that extenuating circumstances existed would be 10, 11 or 12, which is the same number as is required for providing a conviction or an acquittal. That means that in the case of a unanimous conviction by 12 jurors for murder, the rider finding extenuating circumstances would require 10 jurors to support it, not all 12. The noble and learned Lord will tell me whether that is correct.
The amendment of the noble and learned Lord, Lord Lloyd, would simplify the law and make it much fairer. It should make it possible, for example, to limit diminished responsibility to cases of mentally disturbed murderers who needed to be placed in a secure mental hospital and not in an ordinary prison. The amendment should enable provocation to be eliminated as a partial defence, and it should enable people whose actions did not deserve a potential life sentence to avoid one. As I have already said, because of the necessity of consent of the jury to the process, it would be much more acceptable to the public.
The amendment would make an admirable change to the law. It would remove the absolute requirement of mandatory sentence, but do so only if both the judge and the jury were satisfied that there were extenuating circumstances which justified a lesser maximum sentence.
I think that at one stage the noble and learned Baroness, the Attorney-General, said that the best is the enemy of the good. I hope that that means that she thinks that what is proposed in the amendment is the best. It certainly seems to me to be the best, but I do not think that in this case it is the enemy of the good. There is a strong case for adopting the amendment and the principles behind it.
I also have put my name to the amendment. I strongly agree with the way in which it was put forward by the noble and learned Lord, Lord Lloyd of Berwick, and spoken to by the noble Lord, Lord Goodhart. I add only that I share the dismay of other Members of this Committee that part 2 of the Law Commission’s proposals has been put ahead of part 1, but until the Government are able to make up their mind as to what they want, what is proposed in the amendment would provide an opportunity for a jury, properly directed, to make findings of fact on extenuating circumstances, a power which they do not have at the moment, and give flexibility to the judge to deal appropriately with the facts of a case to show the difference between, for instance, a mercy killing and other cases such as the Clegg case and somebody who it is clear should be given a serious life sentence with a long term as the tariff. For those short reasons, supporting the reasons already given, I hope that the amendment will commend itself to the Committee.
On behalf of these Benches, I, too, strongly support the amendment proposed by the noble and learned Lord following the cogent article or response to the Law Commission by Professor Spencer which I had earlier read. Earlier in this afternoon’s debates, the noble and learned Baroness the Attorney-General told us of conversations that she has had with victims of murder. I do not doubt for one moment that they have taken place, though perhaps often in fairly highly charged cases. As a veteran probably of as many murder cases as anyone in this Chamber, both as prosecutor and defender, I must say to her that I have found over the years that, provided as prosecutor or defender you explain the process carefully to the families during the trial, which happily counsel is now able and encouraged by the Attorney-General and the Director of Public Prosecutions to do, their understanding of the process is much increased and they understand that an empirical sentencing process needs to be carried out somehow or other.
As the noble and learned Baroness, Lady Butler-Sloss, said, this proposal adds participation by the public in the form of the jury in the process of decision-making, not only on the bare facts founded on the judge’s direction of law but on the qualification and quality of those facts. The noble and learned Baroness the Attorney-General said earlier that we were somewhere on a long process towards reforming the law of murder. I would simply encourage her on behalf of these Benches to seize on the opportunity at least to make some progress today.
I, too, support the proposition advanced by the noble and learned Lord. For many years, I practised in the criminal courts and was engaged in several murder cases, most of which went all right, but some of which did not.
I am not unduly concerned about the authorship of the proposal. I wish it had been centred entirely on the noble and learned Lord, based on his experience. I would have felt more comfortable about that. It is essential that we should do something about the anomalies that exist. To wait indefinitely, as the noble and learned Baroness the Attorney-General proposed on the last amendment, is in my view a counsel of despair. We should at least try. If the law needs further amendment afterwards that is acceptable—we can do that in the light of experience. To do it without any experience at all and to wait indefinitely is intolerable. I found the arguments that have been advanced by the noble and learned Lord and others persuasive, reasonable and logical. I do not like the idea of the criminal law being brought into contempt. How long will that be allowed to go on? How long will we have to put up with the uncertainty?
It is important that we should acknowledge the principle of change and accept that. If we are proved wrong, it will be possible to do something about that in the future. An overwhelming case has been made out for change right away.
The noble and learned Lord also referred to important safeguards. It would be otiose for me to go over these again. He was right to mention the safeguards which can so easily come into operation. This is not a party matter. All in all, we ought to support the idea.
I would like to know what the Law Society, the Bar Council and those who are engaged in criminal law have to say about this. Surely, the Government have conversed with all of them as well as with the victims. I greatly respect the noble and learned Baroness the Attorney-General, who is one of the best Attorneys-General we have had. My aside is intended to establish that we approve of this idea now. It is important that we should be able to make some progress on this significant matter instead of neglecting it for years to come.
I insinuate myself briefly among the lawyers, since all the preceding speakers on this amendment were lawyers. I took note of that. I strongly support this amendment. We have had a huge amount of discussion over a lot of time about the extent to which extenuating circumstances should play a role in the judge’s decisions on sentences for murder, contrary to the existing mandatory life sentence. One approach has been to try to define types of murder and manslaughter in order to bring the law more in line with practice, which is a mandatory life sentence accompanied by a tariff which modifies the life sentence in many cases. We have tried to do that. The attempt in the preceding amendment was on those lines.
We now have Amendment 150A in front of us. This amendment corresponds precisely to the way in which I think we should go, for two reasons. First, it provides the flexibility which is obviously necessary because of the different circumstances of these cases. Secondly, it brings in the jury in a role that I strongly support. The jury has a role in giving its opinion on the extenuating circumstances—whether they do or do not exist. This is an excellent amendment, which I strongly support, among the many lawyers who apparently take the same view.
I add my voice in support of the amendment of the noble and learned Lord, Lord Lloyd. I understand the reason for the speech that my noble and learned friend the Attorney-General gave in relation to the last amendment. I have heard it from her before on a previous occasion when mandatory life sentences were raised, and I have heard it from those on the other side of the House when the topic has been raised earlier when I have been in the House. I see that it is extremely difficult for any political party to say they are going to make that major change. I was grateful that the noble Baroness, Lady Knight, reminded us of the undertaking that was given at the time of the abolition of the death penalty, because that underlies the decisions that will be made by the Front Benches.
It seems to me that this amendment finds a way of somehow mitigating the damage that has been done by the mandatory life sentence. It does not go behind the undertakings that were made at the time because in effect it provides a discretion to those who have had the advantage of hearing the evidence in the court. Those of us who are practising at the Bar and who have sat in many murder cases over the years are bound to say that not only do they all vary in their facts but they all vary in the degree of culpability. As others have said, not all murders merit a life sentence. The majority undoubtedly do but there are those—the mercy killings, the soldier, the one-off—which do not. To watch the judge, the prosecutor and the defence trying to find a way to achieve the right result is not the way justice should be administered. Consistency is needed but so are honesty, openness, clarity and, above all, justice. One size does not fit all in relation to murder cases.
This amendment seems to shine a light for the first time in a way which I hope the Government can take forward. This is a light into a way in which the jury and the judge, faced with these extremely difficult and not very common circumstances, can reach a means of imposing the right sentence on the offender. I hope it will not receive a blanket rejection today. I hope it will be taken away, because the sense round the whole of this Committee is that the time has come for us to make some progress. Even if we cannot tackle the whole of the law of murder, which I think we ought to be doing in a separate Bill, this is one area in which this piece of legislation could at least show some reform and some advance.
I support this amendment for all the reasons that have been given by the noble and learned Lord, Lord Lloyd of Berwick, and by so many other noble Lords. It is striking indeed that so many lawyers should agree about anything. I would add one further argument in favour of the amendment. We all know that there are occasions when the jury is reluctant to convict, despite compelling evidence that the defendant is guilty of murder. The jury is reluctant to convict because of its concern that on the facts of the case a mandatory life sentence is simply inappropriate. One of the great attractions of the amendment is that it would involve the jury in the assessment of whether there are extenuating circumstances.
The amendment would serve the very valuable purpose of mitigating the absurdities of the mandatory life sentence for all cases of murder. The Attorney-General suggested earlier, in answer to the noble Baroness, Lady Knight, that it is necessary to maintain public confidence, which may require the retention of the mandatory life sentence. I ask the Attorney-General to explain to us how it maintains public confidence for us to retain the mandatory life sentence when the trial judge, immediately after passing the sentence, tells the defendant, the victim’s family and everyone concerned that this sentence means that the defendant will therefore serve a tariff of a defined number of years and will thereafter be released if and when it is safe to do so. Surely that serves only to undermine public confidence in the law. Unless and until the Government come forward with a systematic reform of the law of murder, this amendment would be a substantial improvement on what we have now and will serve only to strengthen public confidence in this area of the law.
I very strongly support the amendment. I rise to speak only so that there should be more than one non-legal voice speaking in this debate. In this case, philosophy undoubtedly supports the voice of the law, as it so often does—and perhaps we should say it the other way round, that jurisprudence is a version of philosophy. It is absolute nonsense on the practical point, as my noble friend has just pointed out, to suppose that a life sentence when passed should immediately be revoked and turned into something else. Far beyond that, I think that everybody who has ever been interested in questions of responsibility, blame or conflicting senses of duty realises that there are a large number of extenuating circumstances, particularly in the case of mercy killings, which were mentioned at the beginning of the debate. This is a very good amendment and I strongly support it.
If a lawyer was here and did not take part in the debate on this amendment, it would be a bit like those who were in bed on St Crispin’s Day, when the battle was being fought in France. They would be ashamed in later life of the role that they played that day—so I do not want that reproach.
To establish my qualifications, as a young barrister, I once prosecuted a murder case when there was capital punishment and, by the grace of God, the defendant was found unfit to plead and I never had to appear in a second murder case when there was capital punishment.
The noble Lord, Lord Pannick, has picked on a very important point, in the fudged verdict. Those who are familiar with English legal history—although they will not get a dissertation on that from me now—may recall a crime that used to be called grand larceny, to be guilty of which you had to steal an object worth more than 40 shillings. The issue of whether it was worth more than that was left to the jury, who would habitually value a diamond ring at well below that amount. The other day—well, not the other day but about 15 years ago—there was a case of malicious destruction of some weapon of war that was going to be exported to tyrants who would use it to suppress their population. The people involved, who were mainly women, although there may have been some gallant men there as well, physically destroyed that weapon of war and were charged with malicious damage, or whatever it was. To the amazement of all except the legal historians, they were acquitted, because the jury were simply not going to find them guilty of putting out of the power of a tyrant a weapon of destruction.
To allow the extenuating circumstance rider to be added is a great improvement on the existing law. There may be problems to be faced, although we do not need to go into that now, in that the clause says that the judge will make up his mind in relation to the facts as found by the jury, who will have to make some finding about the particular facts that amount to the extenuating circumstances. Without complicating the issue today, one can imagine circumstances when there were rivals as to which of the so-called alleged extenuating circumstances matched up to it. But the general idea seems wholly praiseworthy and we should adopt it.
I, too, support the amendment. As a circuit judge, I never had to try a person for murder, but more than 40 years ago, when I was a Minister in the Home Office, one task was to advise the Home Secretary of the day on the issue of life sentences. One realised then how much of an obscenity some of those cases were when a mandatory life sentence had to be passed. The noble Lords, Lord Neill and Lord Pannick, pointed to what the ancients used to call pious perjury, whereby a jury would go out of its way to find that there were some circumstances that would save a person from the injustice that would otherwise be brought upon them in that particular case.
There are cases that call for our attention, and there are three things that we can do. One is to do nothing but to hope that in some way the political parties will be educated and will educate their supporters to be responsible and just in these circumstances, allowing much greater flexibility for the sentencing judge in cases of murder. That is a far-flung possibility that we may not live to see come about. Secondly, we could define each and every one of the categories, which would be a recipe for disaster, as there will always be categories beyond our comprehension that will turn up in cases from time to time.
The third possibility is to accept the amendment. It is not perfect but, if King Solomon was sitting in judgment in the Supreme Court in Jerusalem, I doubt whether he would be able to bring about a perfect solution to the situation. It is not perfect for this reason. Imagine a typical afternoon, when many juries up and down the country have been sent out to consider a verdict of murder. Some come back having been given this direction; it is only within the scope of the test of reasonableness that the judge will have spelt out to them that they will be able to come to the conclusion concerning extenuating circumstances. Each jury is an individual and unique animal, and a jury in Chelmsford may find that there are circumstances that are within the ambit of the amendment, while a jury in Chester, in circumstances virtually identical, will find that there are not. That, I am afraid, is the price that has to be paid for bringing about the advantage that the amendment carries with it.
It may be that members of the general public will say that within the ambit of that test of whether there is evidence on which a jury can find reasonably, each jury is acting almost like a legislature. However, in many respects, juries are acting as legislators in any event. So I have those words of reservation, but only because I appreciate that the situation is intractably difficult. This is almost certainly the best solution yet suggested in this context.
I am very attracted to the ingeniously simple wording of the amendment and am a strong supporter of it. It would stop, as the noble Lord, Lord Goodhart, said, the performance of stretching the criteria of diminished responsibility, which should surely be constrained to those whose diminished responsibility is a result of a mental disorder or disability or some other specific criteria. At the moment, we know that the diminished responsibility rules are fudged in relation to mercy killing. There is a very good reason for introducing it into this legislation. In a later group of amendments we shall debate at length the subtle changes to the criteria on diminished responsibility, which will have the effect of making them slightly more difficult to use because their description is going to be slightly tightened up. Many psychiatrists have pressed for this to make them more consistent with current medical practice, but it means that it will make them more difficult to use in circumstances where this amendment would be of great utility.
We will come on much later to the issue of infanticide, but one of the major reasons for preserving the extraordinary current law of infanticide is that there seems to be no other way to deal with the very young women who give birth, are in a state of distress and kill the child quickly. That is a dreadful circumstance, which at the moment is catered for under infanticide as it is extremely difficult to fit them into the formal diminished responsibility criteria. It will be more difficult to fit them into other criteria. Of course infanticide does exist, and it is intended that it should exist, but I hope to convince the Committee that it should not continue. If the Bill were amended in this way it would deal with many of the problems that we are making for ourselves with regard to diminished responsibility and would allow us to tackle other cases such as mercy killing.
Perhaps I may offer a word of sympathy and encouragement to the noble and learned Baroness; I hope that will not alarm her. I understand the reasons she gave in her response to the previous group of amendments, when she spoke of the privilege she had—it was typical of her that she should express it like that—of talking to the families of those who have suffered bereavement at the hands of murderers. That is what you might call a “straight from the heart” reaction. I quite understand that, as must anybody who has had any ministerial responsibility. It was not particularly exhilarating of the Government, of whom I must take my share of collective responsibility, that we set aside the recommendation of the Law Commission. I understand the reason that was done.
However, I suggest to the noble and learned Baroness that the straight from the heart reaction does not come solely from that source. I should like her to envisage the feelings of the family of a soldier in the conditions in Northern Ireland before there was, happily, a turn for the better—the case of Clegg has already been mentioned—when somebody fires in circumstances where it is obligatory, given the strength of the evidence, that he be prosecuted for murder and is convicted of murder.
Consider the position of his family, who find that he is sentenced and has to be sentenced to the same mandatory sentence as is wholly appropriate for a terrorist who has gone onto the streets for the purpose of committing murder. The soldier goes onto the streets in those circumstances for the purpose of preventing murder. The terrorist goes onto the streets for the purpose of committing murder and yet the sentence for each is the same. The straight from the heart reaction of the families of the soldier does not need me to describe it. The great beauty—if I may put it like that—of this amendment is that it enables the public, as has already been said, through the jury, to express through a finding of extenuating circumstances the reason why a mandatory sentence need not be imposed.
I am not too sure how I should be classified, whether as a lawyer or as a layman. I never practised law but I did teach it once, including criminal law, but that was a very long time ago. Therefore, I think I should probably be classed as a layman on this issue this evening. That is no bad thing because I would like to take my place alongside the noble Lord, Lord Williamson, not among the chorus of lawyers who have supported the amendment, but among those laymen who are perhaps in a position to explain to the Committee how this matter appears from the point of view of the ordinary man in the street, so to speak. I want to add my voice to the chorus of support which there has been for the amendment.
The rigidity of the mandatory life sentence is universally recognised, and has been in this debate, to give rise to major deformities in our law of homicide. One particular deformity that it gives rise to and one undesirable consequence is that it leads to fictional findings of diminished responsibility; for example, to accommodate the mercy killer, who may well have been acting under stress, but who was certainly not acting irrationally. Indeed, they may well have been following what seemed to them to be a highly rational course of conduct.
The Law Commission in its review of the partial defences to murder in 2004 said in relation to mercy killing:
“At present, in such cases, a conviction for murder, with consequent mandatory life sentence, can only be avoided by”—
what it called—
“’a benign conspiracy’ between psychiatrists, defence, prosecution and the court to bring them within”,
the scope of the defence of diminished responsibility. It went on:
“It is however a blight on our law that such an outcome has to be connived at rather than arising openly and directly from the law”.
Whatever one thinks of this fiction, this connivance, it is now certainly made more difficult, as the noble Baroness, Lady Murphy, indicated, by the Bill. Under the law as it stands, to establish the defence of diminished responsibility the defendant has to show that he was suffering from such abnormality of mind, whether arising from a condition of arrested or retarded development of mind or any inherent causes, or induced by disease or injury, as substantially impaired his mental responsibility for his acts and omissions. This is a fairly broad and loose concept, which is put to the jury to find their way through as best they can.
Under the new definition of diminished responsibility, which will be introduced by the Bill, the defendant would need to be shown to have been suffering from a recognised medical condition at the time of the act, which substantially impaired their ability to understand the nature of their conduct, to form a rational judgment, or to exercise self-control.
The defence of diminished responsibility will thus be considerably tightened up. That is no doubt a good thing. It will help to put an end to fictional findings of diminished responsibility. That being the case, it is clear that we will now need the amendment that the noble and learned Lord, Lord Lloyd, has brought forward this evening, which could well be the best way to ensure that the law can continue to show compassion to genuine mercy killers through clear, open procedures set down in statute and subject to public scrutiny rather than through the hidden means of the benign conspiracy.
I want to take a matter that has been referred to by a number of noble Lords, including the noble and learned Lords, Lord Lloyd of Berwick and Lord Mayhew, and the noble and learned Baroness, Lady Butler-Sloss. That is the Clegg case.
What has been addressed is one component of the public and personal reaction to the situation of a soldier who, by nature of his job, finds himself effectively being convicted of murder. But there is another side to it as well, which also gives support to this elegant and powerfully and persuasively argued amendment. Consider that not everyone in the population pays quite so much attention to the question of murder as is the case in your Lordships’ House, but notices those which are of great importance to them as well as the political stance of the leaders of Governments. In my part of the world, one of the statements that rung through again and again was the Prime Minister speaking of murder being murder being murder.
Then we have a situation in which a soldier is convicted of murder. There is no possibility of the jury applying extenuating circumstances. There is a requirement for a mandatory life sentence. But what is seen from an Irish perspective is a Prime Minister saying that murder is murder, a British solider being convicted in a British court of murder, a mandatory life sentence being the appropriate sentence, but “the British establishment” deciding that of course the solider should not serve it. We all know and appreciate that it is wholly appropriate that the solider should not serve it, but that is not necessarily how it is seen in Ireland.
However, if an amendment of this kind were part of the law, and the jury, not the judge, was able to identify that there were extenuating—and, in the case of a soldier carrying out his job, more than mere—circumstances, that would send a message to the population that those engaged in the detailed consideration of the problem viewed it not as being merely murder, but murder in a certain and particular circumstance with enormous extenuating circumstances. So, in no way diminishing the arguments about the solider and his family’s plight that have been adduced, but taking into account the requirements and concerns of the public, there is another perspective that simply adds weight and support to the amendment of the noble and learned Lord, Lord Lloyd of Berwick, and others.
When I read the amendment of the noble and learned Lord, Lord Lloyd of Berwick, I immediately withdrew my own amendment, as this one, which I strongly support, is so much more elegant and skilfully drawn. The amendment extends well beyond mercy killing but, as I no longer regard myself as a lawyer, I will focus only on that aspect, which the noble and learned Lord, Lord Lloyd, has raised, as I have some knowledge of the issue.
I approach the issue not, as I say, as a lawyer, but as someone concerned with justice, and with justice for everyone. The amendment must be considered in the context of the changes in the law proposed in Clause 42, which would result in a mandatory life sentence for a mercy killer. The noble Lord, Lord Low, has drawn attention to what the Law Commission, in its report 290 in August 2004, referred to as the benign conspiracy between psychiatrists, the defence, the prosecution and the court to avoid convictions for murder. Clause 42 appears intended to prevent that benign conspiracy which, although it was a fudge from a legal point of view, was a humane fudge that often resulted in non-custodial sentences for persons found guilty of mercy killing. Under the proposed law, there would not be that gap, and mercy killers who kill for compassionate reasons will face a mandatory life sentence.
We have, then, this obvious injustice in Clause 42 that mercy killers who, out of compassion for someone who they love, reluctantly assist their loved one to die and will receive the same mandatory life sentence as murderers who kill maliciously for gain. As the noble and learned Lord, Lord Lloyd, has pointed out, it makes a mockery of the law. The mandatory life sentence is the most severe punishment that can be imposed on a convicted accused. It must bring the law into disrepute if a compassionate act attracts the same sentence as a dreadful murder.
If the amendment were accepted, it would bring some consistency to the law where the Government have surprisingly accepted the Law Commission’s recommendation that, pending the outcome of any public consultation, Section 4 of the Homicide Act 1957 should be retained. This section provides that the survivor of a suicide pact is guilty of manslaughter, not murder, if the defence proves that he was acting in pursuance of the pact. So if Clause 42 becomes law we will have the strange and seemingly irrational outcome that a mercy killer found guilty will be sentenced to mandatory life imprisonment unless they happen to be the survivor of a suicide pact, in which case they will only be guilty of manslaughter, thereby providing the judge with discretion as to their sentence. Can my noble and learned friend the Attorney-General explain the rationale behind this extraordinary position? It seems on the face of it that, as the Law Commission has earlier said, the law is in a mess. Clause 42 will increase rather than solve that mess.
If they were concerned about justice, it would have been far more rational for the Government to have deferred tightening the law on diminished responsibility under Clause 42 until the public consultation on mercy killing recommended by the Law Commission had taken place, in exactly the same way as they have deferred the decision on suicide pacts. That suggests that the Government may never really have intended the draconian outcome of mandatory life sentences for all mercy killers, because I do not believe that the Government are not concerned about injustice.
In their consultation paper CP19/08, the Government stated that the aim of the Bill is to ensure that the law is just, effective and up to date, producing outcomes that command public confidence. The Bill is to be applauded in its aim to prevent the encouragement of suicide through the medium of the internet, but it is not just in respect of mercy killings. It is too early to say whether it will be effective, but one outcome is certain: it will not produce outcomes that command public confidence.
In the present climate of uncertainty over the lack of public confidence in Parliament, leaders of political parties have expressed concern that Parliament is out of touch with the opinions of the electorate and must listen to their views. Public opinion surveys consistently show that 80 per cent of the public support assisted dying. While this is not the place for a debate about decriminalising assisted dying, it follows from these surveys that at least 80 per cent of society would be appalled at a law that results in mandatory life sentences for mercy killers. As the noble and learned Lord, Lord Lloyd, has pointed out, the Law Commission commissioned Professor Mitchell to undertake surveys for it, which the commission recorded in its report. The professor found:
“The surveys reveal very little support for the imposition of a mandatory sentence of life imprisonment in genuine cases of ‘mercy’ killing”.
Is it time that the Government take account of the views of the overwhelming majority of the population, who would undoubtedly support the amendment? It is encouraging that the noble Lord, Lord Carlile, supports the amendment, as he and I have had different views on assisted dying.
As the debate on the amendment has proceeded I am sure that I am not the only Member of the Committee who is not a lawyer who has found it enormously instructive. I have been increasingly convinced by the case made by the noble and learned Lord and so many others who have spoken for the amendment. As I have done so, and as that has been the way in which my mind has been moving, and even before the noble Lord, Lord Joffe, stood up, I had an increasing quaver of dis-ease, to put it mildly. Although I fully understood the noble and learned Lord’s case and respected it, my dis-ease began when he spoke of mercy killing, which is a difficult phrase, in his outlaying of the amendment.
I have been asking myself what may be the effect on public thinking and the media which we are told over again by the noble Lord, Lord Joffe, is in a particular position on matters that will come later in the Bill and what may be the effect of thinking in the Committee when we reach the amendments in the names of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Alderdice—probably not this evening. As I listened to the noble Lord, my concerns became all the stronger, even though, like him, I had noticed that among those learned and experienced in the law—what a strange thing that the term “learned” is applied in your Lordships’ House only to learning in the law and not to other things—who have supported the noble and learned Lord’s amendment, are those whom I know to be strongly opposed to the amendments to come in the names of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Alderdice.
This leaves me concerned; the quaver has become much greater and it is not simply dis-ease but considerable anxiety about the effects as it is working out in the Committee. The question I want to ask—it will matter to me what answer I receive—relates to proposed new subsection (4) of the new clause, which brings into play the Attorney-General. I would like to be clear that were a trial judge to make such a statement as he or she is enabled to by proposed new subsections (1) and (2), and if a jury so found that that was reasonable in relation to what the noble and learned Lord has spoken of as mercy killing, would it be open to the Attorney-General to question that and to do so clearly?
The Attorney-General has nodded, but it will be interesting to hear her speak. She has not nodded; she has shaken her head. I am not sure whether she has shaken her head to my saying that she has nodded or whether she has shaken her head more generally, which is why it is important to rely on speech in your Lordships’ House. I should want to know that the law in these matters would not be made simply by a judge and jury, important as the jury is in these matters but that if the Attorney-General in the public interest believed that the law was slithering in the direction in which some noble Lords might wish it to run, the Attorney-General could ask those questions and bring back the case.
As well as that detail I want to note a gathering unease, which leads me to the point of not being at all clear how it would be right to vote, were we to vote on the amendment, on the grounds that I have outlined.
I would like briefly to follow the right reverend Prelate the Bishop of Winchester in expressing a little unease. I support the amendment and I was taken by the arguments of my noble and learned friend. I often find myself in agreement with what he has to say and I do so again this evening. I am concerned about some of the other arguments that have been adduced during the course of the debate that have caused the creeping unease to which the right reverend Prelate has referred. The arguments advanced by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mayhew, and others about fudged verdicts are compelling. Looking at the way in which mandatory sentences are imposed is a right and proper thing for us to do. Many of us at Second Reading expressed concern that within the Bill there was no opportunity to look in great detail at the law on murder and many expressed again during Committee the thought that we probably need a separate piece of legislation to look at the matter in detail in the future. I would be one to sign up to that.
I want to follow something that the noble Lord, Lord Joffe, said in his remarks. He has made great play of the point about mercy killing as a reason why we should now pass the amendment. The arguments for fudged verdicts are good, but the argument about mercy killing is one we should consider carefully. I would like to ask the noble and learned Baroness the Attorney-General how many people have in any event been sentenced to life imprisonment as a result of mercy killing. How often do such cases come before our courts? The reality is that this is a theological argument; in a legal sense we would rarely find such cases. I am not aware of anyone being given a life sentence for so-called mercy killing.
However, I am struck that at the beginning of our proceedings on the Bill we have spent a great deal of time looking at the coroners service arising out of the killings of over 226 people by Dr Harold Shipman. I am struck that the defence that he could have offered, if at an earlier stage he had been brought to court, is that he had done such things as an act of mercy killing. Would that have been a defence in law and would he have been brought before the courts and given a mandatory sentence? We need to know how that would have happened in reality.
The noble Lord, Lord Joffe, in his argument, said that we should rely on public opinion. As I experienced while a Member of another place for a division of the City of Liverpool, many people there were in favour of the restoration of capital punishment. I was regularly told in general elections that if only I would commit myself to the restoration of capital punishment they would vote for me. Many opinion polls show a majority of people who would like to see the restoration of capital punishment. However, as a matter of prudential judgment, I disagreed with that view and have always voted against it, for reasons that we would not have time to debate here tonight but I suspect that many would be in agreement with. We should not therefore necessarily rely on public opinion. The right reverend Prelate was right to say that we should have some concern about some of the arguments being adduced during this debate and the destination to which that might lead us.
I know that your Lordships will agree when I say that the Committee owes a great debt to the noble and learned Lord, Lord Lloyd, not only for the terms of his amendment but for the quality of the debate in your Lordships’ House that it has engendered. In promoting his amendment, the noble and learned Lord exhibited the intellect of a former Lord of Appeal in Ordinary, together with the experience that he has brought from sitting as a High Court judge in many murder trials.
I agree with the assessment of the noble and learned Lord, Lord Lloyd, that the abolition of the mandatory life sentence is not a political option at present. It is not on the table, as the noble Baroness, Lady Mallalieu, suspected in her intervention, and will not be in the foreseeable future.
The value of the amendment of the noble and learned Lord, Lord Lloyd, is that it recognises that fact. In redefining the offence of murder in its report, the Law Commission also recognises that as a fact. However, like the Law Commission report, the issue that this amendment addresses is not the mandatory life sentence but the appropriate definition of murder to which it should apply.
That brings me to my first question to the noble and learned Lord, Lord Lloyd. In his amendment, to which definition of murder does he foresee the mandatory life sentence applying? In other words, what is the starting point before the court goes on to consider extenuating circumstances? Is it the existing definition of murder? I see the noble and learned Lord nodding and therefore I do not need to go on to suggest what other definitions of murder might have been in his mind.
I cannot begin to trace the journey that the noble and learned Lord, Lord Lloyd, undertook that led to the final draft of his amendment, but it is an amendment of great perspicacity because he leaves the role of deciding whether there are extenuating circumstances to the jury. It is the noble and learned Lord at his most deft, if I may say so, and, for the Government, at his most challenging—because the insightfulness, as the Americans say, of the amendment is that the jury is the best possible expression of public opinion that the court could have in looking at what is an appropriate sentence in the circumstances.
We are told that the great problem that we have with the law relating to murder is public opinion and that, whatever the politicians do, in the end we will always come up against this barrier But what better expression of public opinion in a case can you have than a jury? It comes much closer to the situation than any newspaper editor is able to do and, what is more, it is composed of ordinary members of the public selected at random from our society. Therefore, I hope that the Government will think about this amendment very seriously.
One hesitation that I have about the amendment is whether too much discretion is left to the jury. The noble and learned Lord, Lord Lloyd, mentioned a number of possible extenuating circumstances. He addressed mercy killing, the battered wife, the particular issues to which the Doughty case gave rise and, of course, the soldier. I wonder whether these issues ought not to be expressed in the amendment and, if it ultimately succeeds, in the Bill and then the Act. I recognise the difficulties that are involved because one wonders how one can foresee a spectrum of extenuating circumstances.
This is a real difficulty because, although the amendment gets over the crucial question of public opinion—that is its real ingenuity—nevertheless one has to consider very seriously the extent to which the discretion of the jury should be constrained. I know what the answer of the noble and learned Lord, Lord Lloyd of Berwick, will be. He will say that it should be left to the discretion of the judge. I find that initially an attractive solution; but I should certainly like to go away and think about it if that is his response to me.
I have found this an absolutely fascinating and insightful debate. However, as I listened carefully, a number of things became clear. First, although the noble and learned Lord says that he accepts that the mandatory life sentence will remain, perhaps I may respectfully suggest that the effect of the amendment would be that it was, de facto, expunged. Let me explain why that is so.
We are dealing with a set of partial defences which at the moment would reduce a conviction for murder to one for manslaughter. The amendment proposes to say to the jury, “You may find the person guilty of murder but then you may affect the sentence of murder so that it is capable of being dealt with as if it were manslaughter by using the defence of extenuating circumstances”. So there is almost—I hope that the Committee will take this in the spirit in which it is meant, because it is ingenious—a different, benign conspiracy to try to ignore the fact that we have accepted that there will not be any expunging of the mandatory life sentence.
Before I come to the way in which the amendment would work, perhaps I may take up some of the points raised. First, I say to the noble and learned Lord, Lord Mayhew, that I absolutely understand the position of the soldier’s family. Indeed, the privilege extends not only to those who have been subjected to a murder in the ordinary way; the noble and learned Lord will remember that one also has an opportunity to listen to families who go the other way. It is very similar to the one-punch murder/manslaughter case, where the family is devastated that someone who has done something that in one sense looks ridiculous and unintended is dealt with quite firmly. Therefore, I understand the desire here.
I also understand all those who have spoken about wanting to mitigate the harshness of what would appear to be the mandatory life sentence. The noble Lords, Lord Elystan-Morgan and Lord Goodhart, put their finger on some of the issues that cause us difficulty. First, the noble Lord, Lord Elystan-Morgan, says—and he is right—that one will not be able to determine what any particular jury in any particular part of the country might decide amounts to extenuating circumstances. Although the judge can give guidance about that, what criterion will the judge be invited to exercise in determining what can or cannot make up an extenuating circumstance?
The right reverend Prelate asked whether I could intervene as Attorney-General and, under the provision is crafted, exercise my power under Section 36 of the 1988 Act, which relates to sentence. The answer is that I could not, because that is a power to refer in relation to sentence and not in relation to conviction. It does not relate to the verdict, and a finding of extenuating circumstances under this amendment is not a sentence. Therefore, I would envisage that if the jury in a case of mercy killing—we have talked a lot about the difficulties of cases where mercy killing is in issue—came to the conclusion, and the judge agreed, that such an extenuating circumstance justified the reduction in sentence, they would be entitled to say so.
There is then the very interesting question of whether Parliament is content that individual jurors in individual circumstances would be able to determine what the law was going to be on a particular day at a particular time. It is for Parliament—
Perhaps the noble and learned Baroness will give way for a moment. Does she accept that in fact that is exactly what happens in relation to the current law of diminished responsibility? The jury makes the decision about the verdict in a case, and there are widespread differences between juries, just as there are widespread differences in time. That plea used to be used 130 times a year; now it is used 20 times a year. I cannot see that there is anything about the use of this amendment in relation to verdicts by juries that is any more difficult than the law that we already have, and will continue to have, in relation to diminished responsibility.
That is partly the point. One of the things that we aspire to achieve with these provisions is a greater degree of clarity, certainty and, therefore, consistency. That is the aspiration. A number of noble Lords have said, during this debate and elsewhere, that one of the problems we have with the current process is that it lacks clarity, simplicity and certainty. So we are seeking—in both the provisions relating to diminished responsibility and those relating to loss of control—to give a greater degree of clarity so that we know what falls within the categories of murder and manslaughter. That is the whole purpose of this debate.
This amendment seeks to create what I must respectfully suggest to the House is an unhelpful halfway house between murder and manslaughter, eroding the boundary between the two. It would mean that a person could be convicted of murder but face the consequences which would flow from a manslaughter verdict. It is generally accepted that the rationale for a manslaughter verdict, in circumstances where a partial defence applies, is to allow the defendant to be freed from the full consequences of a murder conviction—that is, a life sentence.
The noble Lord, Lord Pannick, raised the issue of the life sentence. The life sentence has a real bite because it remains in being for the whole of that individual’s life. If at any stage they transgress, they can be brought back. That is why the noble and learned Lord, Lord Mayhew, says this is a blunt instrument because the life sentence is for life. It cannot, therefore, be disregarded, saying, “You have done your tariff and that is the end of it”. It is not the end of it; it goes on.
That is the whole point, if I may say so, of the amendment. Does the Minister not accept that there will be cases of a genuine mercy killer having this sentence hanging over them for the rest of their life when it should not be hanging over them?
That brings us right back to the substance of the general debate of how we should define homicide, and the issues raised by the Law Commission in relation to murder one, murder two and/or manslaughter. We have said, and this debate has demonstrated, that this is a complex, difficult and challenging issue which needs more time. If I may respectfully say so, this amendment seeks to circumvent that debate, not taking it head on but dealing with it by creating a different fudge—one that is very much wanted but one we really should resist.
I hope I made it clear when I answered the first amendment that everyone—I do not think anyone demurs from this—has found this issue very difficult with far-reaching consequences. If this matter was simple, we would have resolved it a long time ago. It is not simple; it is complex and worrisome. That is why the Government have taken the view that we should take it one tranche at a time.
The Government have consulted extensively on the homicide provisions, both generally and in terms of each of the Law Commission’s reports. The noble Lord, Lord Carlile of Berriew, referred to the extensive consultations there have been. I cannot tell my noble friend whether this particular amendment, which is Professor Spencer’s amendment, has been subject to specific consultation. I can certainly undertake to find out whether that is true. But have all of those people been consulted in relation to a plethora of homicide provisions over the past six years? Absolutely. Have we discussed the import of their suggestions? Yes. Has everyone always agreed? Regrettably, not. Is it a continuing, iterative conversation? Yes, it is.
This amendment seeks to create a third category. You would have murder with extenuating circumstances and then manslaughter, which could be introduced if one of the partial defences was proven. I do not know whether the noble and learned Lord is suggesting that we accept this amendment and expunge the partial defences in relation to provocation. If he is not, we would have three areas—murder, murder with extenuating circumstances and manslaughter. One can see a certain echo with the Law Commission’s categories of murder one, murder two and manslaughter. We would argue strongly that this is not the moment to do that.
We have a real difficulty in terms of defining what the extenuating circumstances are. The term is wholly undefined at the moment so I can give no comfort to the right reverend Prelate and other noble Lords about what falls within the definition and what falls without it. This issue would not be one for Parliament to decide—I know that subsequently we are going to debate the issue of assisted dying and mercy killing—but it would be for the court on the day in question to determine, judge and jury, whether there were extenuating circumstances. For something of such importance to the public at large, I think it is for this House and another place to make that determination after full and proper debate. I understand the attraction of taking this route but I cannot advise your Lordships to adopt it. It would not enable us to look at these issues with the acuity they require. These are hotly contested issues and Parliament, as difficult as it is, will have to decided what it wants in relation to them on behalf of the people of this country. We cannot slip round that by using this amendment, as attractive as I undoubtedly believe it may appear at first blush.
Would the noble Baroness accept that she has challenged the amendment with doing far more than it sets out to do? The case that she is making is that the effect of this amendment would be to change the offence and turn it into murder two, as it were. Surely that is not the case. It is still murder and potentially susceptible to a life sentence. All this amendment does is open up some space in which the jury and the judge between them are able to modify the sentence.
Of course I hear what the noble Lord, Lord Low, says, but I shall come back, if I may, to the very good point made by the noble Lord, Lord Goodhart, when he asked what it means if there is a jury of 12 men and women good and true, 10 of whom decide that there are extenuating circumstances, but 12 of whom conclude that there was murder. There will then be two people on the jury who believe in a full-blown murder without any extenuating circumstances. That is the basis on which they will have convicted the defendant, while others disagree. The jury is being asked to determine a complex set of scenarios. That does not bring clarity or simplicity; it brings complexity. The noble Lord, Lord Goodhart, was right to raise it, as was the noble Lord, Lord Elystan-Morgan, with his experience of the circuit bench, who asked about regional differences.
Can the noble and learned Baroness explain what is complex about this? All the jury needs to decide is, first, whether there has been a murder and secondly, and only if the judge says that there are grounds for justifying extenuating circumstances, whether there are such circumstances. If 10 or more members of the jury say that there are extenuating circumstances, the case will proceed on that basis. If fewer than 10 agree, it will not. That seems perfectly simple to me.
It is perfectly simple if one has a definition of what the extenuating circumstances will be in any given case. In the debate it was said that it would be impossible to define what an extenuating set of circumstances might be. They would have to be specifically honed to the case in point. How can that be done if there is no independent rubric or tool by which it will be measured? I respectfully suggest that this situation would have to be honed so that it was explicable and clear. Before the trial took place, there would be some understanding of the parameters. I understand the desire to find a solution, but I do not think that this is it. I shall now sit down and not get up again.
That is rather discouraging, as I said a moment ago that I would ask a question. The noble and learned Baroness is overcomplicating the position of the noble and learned Lord, Lord Lloyd of Berwick. It is absolutely clear what he wants. He has three additional amendments which would get rid of Clauses 44, 45 and 46. Their effect would be to leave the existing law of provocation standing and get rid of the new ideas embodied in Clauses 44 and 45. That is absolutely straightforward.
I need hardly say that I entirely agree with the noble Lord. The noble Lord, Lord Pannick, said that it is rare for so many lawyers all to agree. It is extremely rare, but on this occasion we are also joined by many perspicacious laymen who have all expressed views in support of the amendment. I am extremely grateful to all of them. Only two Members of the Committee, other than the Attorney-General, have expressed any doubt; one was the right reverend Prelate, and I do now rather regret having put that fourth paragraph into the amendment, because in truth it is unnecessary. The Attorney-General would be able to refer such a sentence to the Court of Appeal anyway. I would say the same to the noble Lord, Lord Alton. I respect his concerns about the amendment and hope to take them fully into account before bringing the matter back at a later stage.
I am grateful, as always, for the replies of the noble and learned Baroness. However, I found them disappointing. She said that the amendment was trying to circumvent the mandatory sentence, and said in so many words that it was a fudge. It is not a fudge; it is a way of enabling the jury to enable the judge to reach an appropriate sentence in each case. She said that all the extenuating circumstances that might apply should be defined. I cannot imagine anything more silly, if I may say so. We all know that the circumstances of murder are infinitely various. To attempt to define circumstances that the jury might find to be extenuating would be impossible and would deprive the amendment of all point.
I had another point to make but I cannot read my handwriting, so I shall leave it at that. However, I promise to bring back the issue, and hope to gain all the same support, on Report. I beg leave to withdraw the amendment.
Amendment 150A withdrawn.
Clause 42 : Persons suffering from diminished responsibility (England and Wales)
Amendments 150B and 150C not moved.
151: Clause 42, page 27, line 11, after “functioning” insert “or developmental immaturity”
This is another amendment prepared by my noble friend Lord Thomas of Gresford which I beg leave to move. I shall speak also to Amendments 153 and 158 and any consequential amendments flowing therefrom.
The amendments would amend Clause 42(1), which amends Section 2(1) of the Homicide Act 1957, to allow a charge of murder to be reduced to manslaughter if the person who killed another was suffering from an abnormality of mental functioning which arose from developmental immaturity. The amendments would give effect to the Law Commission’s recommendation that for defendants under 18, developmental immaturity could be a possible basis for reducing murder to manslaughter. The age of criminal responsibility begins at 10, but there is a great deal of research showing that a child of 10 does not have the same reasoning processes as an adult. They may have—but they may well not have.
Under the current proposals an adult with a learning difficulty who has the mental age of a child can plead diminished responsibility. On the other hand, a child without a medical condition but with developmental immaturity will not be able to plead diminished responsibility under the current proposals. These amendments would mean that if the child could show that the killing took place because he or she suffered from an abnormality of mental functioning that arose because of developmental immaturity and this substantially impaired the child’s ability to understand the nature of his or her conduct, to form a rational judgment or to exercise self-control, and this provides an explanation for the child’s actions, that could reduce a murder charge to manslaughter.
Those would still be substantial hurdles to overcome and a successful plea or verdict would still result in a conviction of a very serious offence—manslaughter. In Committee in the Commons the Government said that this amendment should not be introduced because they said that they had not seen any evidence showing that it was necessary. They said, too, that one of the problems was that many children would raise this as a defence. Many children might raise it as a defence because it has merit both in law and in an analysis of children. I simply do not understand the logic of saying that because it might be a defence that will avail many people, possibly justly, we should not entertain it. The mere fact that this defence might be relied on but ultimately not succeed in other cases cannot justify the Government’s position.
In its 2004 report, Partial Defences to Murder, the Law Commission recommended that the diminished responsibility partial defence should be available to a child or young person under 18 on the ground of developmental immaturity. These amendments would simply give effect to that report. There are many platitudes that one could use about children’s development. However, the scientific evidence—the evidence to which we should pay attention—seems to show that in the physiological development of their brains, children are markedly more impulsive. They are driven more by fear and gut reactions. They are more influenced by their circumstances, including what may be very adverse circumstances, and react much less rationally than typical adults. Further, their intellectual development is incomplete. They are still learning about the world and how it works. They do not have the practical experience of situations that adults have.
Under-18s mature at different rates. Their ability to decide to engage in criminal activity, including committing murder, in the clear knowledge of the full implications and consequences of doing so, must be subject to the developmental level that the individual young person has reached. Knowing the difference between what is legal and illegal is not intrinsic to a child, and it is certainly not intrinsic to every child in the same way at the same rate of development. It needs to be learned. It is a lesson much harder learned by vulnerable children—those who have been neglected, those who have been abused, those who are less able to take logical account of the differentials in behaviour that at least many of us in this House recognise sometimes.
The omission of developmental immaturity from Clause 42 is particularly material as a result of the abolition of the presumption of doli incapax. It means that any child over the age of 10 in this country is now to be held to understand the significance of their actions and that a partial defence to murder should only be available if a child meets the proposed conditions for a defence of diminished responsibility. The effect is wholly unjust. An adult of 40 with the emotional maturity of a 10 year-old will be able to plea diminished responsibility if they are diagnosed to have a recognised medical condition. On the other hand, a 10 year-old without such a recognised condition but suffering from developmental immaturity of a significant kind cannot succeed with the plea as their development has not been arrested. It is simply ongoing.
It seems to us that this is a merited defence that will ensure that the law remains just for those under 18. I beg to move.
The purpose of this amendment is to add aback the term “developmental immaturity”, which was included by the Law Commission but then excluded by the Government. In my view, on this occasion the Government were right. The evidence was that in a case where developmental immaturity is such that it ought to provide a partial defence, it would be covered by the term “recognised medical condition”. Furthermore, if it were to be included as a separate head, I can see no reason at all why this amendment—or certainly a later one—should include it simply for those under the age of 18. Why should a person of 18 with a mental age of, say, 10 be entitled to the defence when a person of, say, 40 would not be? It does not make sense. That leads to another difficulty. If a person of 40 with a mental age of 10 is entitled to a partial defence on the grounds of developmental immaturity, what about a child of 10 with a mental age of 10? As has been pointed out, he could not rely on the old rule that a child of 10 is incapable of committing a crime. The child of 10 would be guilty of murder but the man of 40 with a mental age of 10 would not. That seems an absurd result. The less we think about developmental immaturity, the safer ground we shall be on.
I support Amendment 151, which was so eloquently spoken to by the noble Lord, Lord Carlile of Berriew. I shall speak to my Amendment 154 and, I regret, oppose Amendment 160.
Amendment 154, standing in my name and that of my noble friend Lady Murphy, seeks to restore the Law Commission’s proposal that courts could consider developmental immaturity in under-18s as a defence permitting a less onerous sentence than murder. I have listened with interest to what my noble and learned friend Lord Lloyd of Berwick said on this point and I will read carefully what he said. Perhaps the first point to make is that we treat children differently before the law. That might be why it is appropriate to think of under-18s as being treated differently in these circumstances.
I apologise if my drafting is faulty. I hope the Minister will be good enough to speak in her reply to the spirit of the amendment. I am most grateful to Lord Justice Toulson, whose recent speech to the Michael Sieff Foundation inspired the amendment.
I urge the Minister to reinstate the Law Commission’s proposal, which had the backing of the NSPCC, the judges of the Central Criminal Court, the criminal subcommittee of the Council of Her Majesty’s Circuit Judges, the Criminal Bar Association, the Youth Justice Board, the Law Society and the Royal College of Psychiatrists. The Law Commission’s report stated:
“5.137 Our recommendation is, therefore, likely to affect only a very few cases, and only by reducing the crime from top-tier homicide to middle-tier homicide. However, for the few cases that do meet the criteria, we believe our recommendation meets requirements of justice recognised as fundamental in civilised legal systems across the world”.
The Minister may say that these children are already caught under the provisions on abnormal functioning of mind. The noble Lord, Lord Carlile, has already gone into that. Doctor Eileen Vizard, a consultant—
I apologise for interrupting the noble Earl but, with great respect, we ought to deal with the point raised by the noble and learned Lord, which the noble Earl has already mentioned.
New subsection (1)(a) in Clause 42(1) makes it absolutely plain that one of the requirements is a recognised mental condition. Does the noble Earl agree that if an adult is suffering from a recognised medical condition which in an adult may be evidenced by developmental immaturity, that will avail the adult, but that, as the clause makes clear, if a child under 18 is suffering from developmental immaturity, that will not be a recognised medical condition that will avail the child? With enormous respect, that is the point that the noble and learned Lord, Lord Lloyd of Berwick, on this rare occasion, has not quite got altogether. Does the noble Earl agree?
I thank the noble Lord, Lord Carlile of Berriew; that was exactly the point I wished to make. He has made it clear. Perhaps it is worth putting it in my own terms, just so that I can be clear. The assumption is that these children will be caught under abnormal function of mind. That assumes that such children are suffering an abnormality of mind as defined within the defence of diminished responsibility. Such “abnormality of mind” can, under the Homicide Act 1957, include,
“arrested or retarded development of mind or any inherent causes or induced by disease or injury”.
That does not include any reference to the perfectly natural condition of developmental immaturity in young children. It is wrong to equate childhood developmental immaturity, a normal part of growing up, with abnormality of mind, a concept derived from cases of offending adults with learning disabilities or psychiatric disorders. That the consultation did not throw up a strong call for this measure may reflect only the small number of children affected and the lack of a culture that prioritises child welfare. I would be interested to see, if possible, some of the details of that consultation—and I apologise if it has already been circulated.
Dr Eileen Vizard, a consultant child and adolescent psychiatrist who gave evidence in the Bulger case and has been treating seriously disturbed young offenders for decades with the NSPCC, states:
“The overwhelming scientific and clinical evidence base is to the effect that ordinary children between 10 to 14 years old are naturally ‘developmentally immature’ and therefore unable to make fully adequate judgments about the true seriousness of their behaviour”.
Dr Vizard also highlights how far psychiatry has advanced in recent years in the understanding of brain development in children, to which the noble Lord, Lord Carlile, referred, which continues into late adolescence, and she regrets how far the courts lag behind in applying that understanding.
I consider that this amendment falls within the spirit of the Government’s welcome and progressive steps towards improving child welfare in this country in the 10 years that I have been sitting in your Lordships' House. These children of whom we are speaking will often be the sort of sexually or physically abused or neglected children about whom the Government have been so concerned and in whom they have invested so much. I recall the Quality Protects programme, which was dedicated to providing ring-fenced funding for children in care when the Government first came into office. It made such a difference. Since then there has been the Every Child Matters agenda, which looks at the vulnerability of all our children, and Care Matters, specifically for children in care. I pay tribute to the noble and learned Baroness the Attorney-General for her work on domestic violence, including the introduction of domestic violence courts and changes to legislation, which has protected children in families where they witness physical violence between their parents. Perhaps a boy would feel protective of his mother when he saw his father coming into the house in a drunken stupor. The Government have taken a lot of positive steps to improve protections for vulnerable children, and they may perhaps wish, on reflection, to embrace this amendment in that tradition.
Amendment 161 relates to doli incapax. I regret I cannot support it for the reasons that I have already given. It is normal for under-14 year-olds not to have the developmental maturity to be capable of crime, that is, to be fully responsible for their actions in criminal regard. Doli incapax would allow children to show that they were incapable of crime. Children under 15 should not have to prove that they are normal in order to access protection. If anything, one should have to prove that they are abnormal—developmentally precocious—if they are to face criminal sanction. I look forward to the Minister’s reply.
I have a number of amendments in this group. I will address developmental immaturity first, but before I do, I shall get in yet another side-swipe on the issue of diminished responsibility as a partial defence. Lawyers and psychiatrists—it is nearly always psychiatrists who appear in court—come from different planets. I think lawyers are from Mars and psychiatrists are from Venus, or something like that. The problem is that lawyers deal in definite contributions to causality, whereas we psychiatrists—I look for support from the other psychiatrist in this House who sits on the Liberal Democrat Benches—tend to deal in small proportions of causality in quite a different way, and we cannot be quite so definite about when something is caused or not.
The difficulty with all these partial defences is that they use expert psychiatric evidence within contested trial hearings directed towards the jury determining the verdict. As we know, this is an unseemly process for many psychiatrists. It has led to a bunch of so-called expert witnesses who are not properly qualified forensic psychiatrists—the “rent a doc” brigade—who are there to be tapped into to produce a range of expert evidence that the jury has to make a decision about. It is an unseemly job, and psychiatrists are much better at giving evidence at the disposal phase when the jury has already made a decision about guilty or not guilty. This is why it is so important to have these other verdicts available to us.
One of my psychiatrist colleagues said: “Actually, we don’t have all that much difficulty with diminished responsibility when somebody is really mad. It is the ones who aren’t mad that create the problems”. I am sorry if I am not being politically correct, but the problem is that if you have someone with a rip-roaring psychosis, then everybody is agreed on the issue. The problem is when he does not. For all kinds of reasons that I shall come to later, people do not want to go for not guilty by reason of insanity. So, we are stuck with it. I recognise that, and therefore I am going to probe on a number of issues in the Bill.
Psychiatrists have looked very carefully at the Bill. The Royal College of Psychiatrists was closely involved in the discussions that led to the changes that have come now as slight shifts in the diminished responsibility criteria. Some of my amendments—not the one on developmental immaturity—are probing amendments to get the thinking of the Government and the processes clearly established in the record. I particularly refer to Amendments 155, 157 and 162. I am grateful for the letter I have received from the Attorney-General and the opportunity I had to discuss the amendments with the noble Lord, Lord Bach.
On developmental immaturity, I support the amendment that refers specifically to normal children. The Law Commission recommended that developmental immaturity should be added to the phrase,
“arose from a recognised medical condition”,
as the noble and learned Lord, Lord Lloyd, mentioned, but people who have a recognised medical condition, particularly if it is a learning disability, already have a defence in that regard. The introduction of the additional basis for a finding of diminished responsibility of immaturity should be restricted to children who are immature as part of their normality and stage of development. To allow immaturity as a discrete and separate basis for arguing abnormality of mental functioning in an adult would be problematic. There would be disagreement about what constituted immaturity in adults, in both qualitative and quantitative terms, with the prospect of returning to unseemly discussions between experts.
There is a case for allowing developmental immaturity. The current legislation is unfair in restricting the availability in murder cases of a defence of reduced responsibility to adults who are mentally abnormal. Children in adolescence may, as a result of their normal, less-than-fully-mature stage of development, be incapacitated in their thoughts, emotions and actions in ways that should properly reduce the level of responsibility for their actions. Biological factors such as the functioning of the frontal lobe of the brain play an important role in the development of self-control and of other abilities. The frontal lobes are involved in the individual’s ability to manage the large amount of information entering consciousness from many sources, in changing behaviour and in determining impulsivity.
The frontal lobes are thought to mature at approximately 14 years of age. However, in a case involving a child under 14, it would still be open to the prosecution to seek to rebut evidence of poor frontal lobe development by arguing that the child had matured to a sufficient degree to be fairly convicted of murder. The jury should be trusted to reject implausible claims, as it is with other defences based on expert evidence. Offenders under the age of 18 commit a very small proportion—about 4 per cent—of homicides. It is hard to imagine that more than a small proportion of the even smaller number of children from this group who find themselves charged with murder will be in a strong position to claim that they were suffering from diminished responsibility solely because of developmental immaturity. Even those who succeed in persuading a jury of the merits of their claim—they are likely to be in the younger age group, who commit the fewest homicides—will still be convicted of a lesser degree of homicide and can be sentenced to anything up to and including life imprisonment. For the few cases that meet the criteria, the recommendation meets requirements of justice recognised as fundamental in civilised legal systems across the world. The amendment is necessary because the principle of doli incapax has been abandoned. We will return to that later—although the noble Earl, Lord Listowel, has spoken about it—when we debate Amendment 161.
Amendments 155 and 157 are designed to explore the rationale for the new criteria of diminished responsibility. Overall, the concept of abnormal mental functioning is better than the current concept of abnormality of mind because it emphasises mental processes rather than a static idea. I strongly favour this adjustment because it offers a legislative route towards ensuring that conditions put forward in the defence come within accepted diagnostic criteria. I think that we will move towards the World Health Organisation’s ICD-10 criteria, or those specified by the American Psychiatric Association’s Diagnostic and Statistical Manual—we currently use number 4. That will avoid the idiosyncratic diagnoses that have been offered in the past by many experts. Many lawyers here will have sat through some very eccentric explanations of diminished responsibility. We would like to see the definition narrowed, and I accept that the new definition will ensure consistency.
I was concerned that the word “medical” might rule out evidence of psychological conditions, and seek reassurance from the Government that it does not. I realise that to add “or psychological” would open up the concept too much and allow in all manner of conditions that might offer more in the way of explanation of the offence than valid partial exculpation.
“substantially impaired D’s ability to do one or more of”,
introduces a notion of relative incapacity consistent with the civil law, as expressed, for example, in the Mental Capacity Act. However, it adds a layer of complication to expert evidence, and the mere inability to do (a), (b) or (c) would be enough. By definition, if there is evidence that the defendant did not understand or form a rational judgment or exercise self-control, his relative incapacity is demonstrated. The argument in favour of incapacity is that any mental condition can then be described in terms of inferred disability expressed in medical terms.
It is the criteria (a), (b) and (c) that cause problems: to understand the nature of D’s conduct; to form a rational judgment; to exercise self-control. Elements (a) and (b) are very restrictive in terms of the types of medical disability that are allowed. They seem to mirror the old McNaughton rules for insanity in being highly cognitive. This raises concerns because, although there is also the self-control element (c) available, (a) and (b) imply a narrowing of the defence. The decision in R v Byrne, the seminal case in diminished responsibility, which identified abnormality of mind as anything that the reasonable man would term abnormal, was far broader in its potential use for justice. I should like to understand what the Government intend by their specification of particular types of disability. It would be better to clarify which situations might underpin diminished responsibility.
The fact that the great majority of defendants will have to rely on (c), the exercise of self-control, emphasises that the reform is one that narrows the defence. For example, many defendants with quite severe schizophrenia would fail to come within the terms of (a) and (b), as they do with the insanity defence at present. The law allows them to utilise the defence. I remind noble Lords that in 1843, the McNaughton rules on insanity, to which these are very similar in many ways, were drawn up after McNaughton was found not guilty by reason of insanity. The rules were created after the public outcry following the case, which even involved Queen Victoria. The criteria are so stiff that McNaughton himself, who took a pot shot at Robert Peel’s private secretary, would not have satisfied them. This appears to be going back towards very difficult cases of “not guilty by reason of insanity”.
With regard to (c)—self-control—although this does allow an aspect of Byrne back in, because that case allowed an “irresistible impulse”, it may be argued by the Crown that it is only an irresistible impulse that reflects (c). The current proposal is very restrictive in cases where there is a determined, even planned, intention to kill. For example, a severely depressed woman may kill her children on the basis of a delusion that this world is such a terrible place that her children, whom she loves, would be better off no longer in it. She might still be able to judge whether her actions were legally right or wrong. Or a man may be paranoid and deluded about someone else, kill them in a planned way, based on delusions, yet still know that it is legally or even morally wrong to kill per se. Thus (a) and (b) would not be satisfied. Lack of self-control might also be very difficult to prove. A severely mentally ill person could be denied a psychiatric defence unless loss of control was clearly proven. I want to explore the Government’s thinking on that.
The likely effect of the proposed reform will be to limit further the application of diminished responsibility. This will occur against a background of changing social attitudes, also affecting jurors, away from allowing partial exculpation—as evidenced by the substantial drop in the number of successful pleas of diminished responsibility in the past two decades. So Amendment 155 allows for mere distortion of thinking or perception as the basis for a successful plea of diminished responsibility where the defendant was able to exercise self-control.
I turn now to causation in Amendment 157. The inclusion of the causation element is understandable, and in giving evidence under the current law, it is always necessary for an expert in effect to offer evidence about the connection between the abnormality of functioning and the act. However, connection or offering a narrative that explains the relationship between abnormality and the act allows for a broader approach and references explicitly to causes. It seems likely, therefore, that defence experts will be cross-examined beyond what science can offer in relation to causation. However, if cause is interpreted more loosely, the problem will not necessarily arise, but of course psychiatry cannot say with hand on heart what caused a killing per se. That said, the operation of diminished responsibility in both its current and proposed versions makes it inevitable that whatever language is used in statute, doctors will be asked to say what element, if any, of a defendant’s mental disorder contributed to the killing. Causation will be addressed in fact whatever the wording of the statute, but “causes” is too restrictive.
Certainly I acknowledge that the abnormality of mental functioning need only be a cause of the killing since clearly it is only in extreme cases of severe mental disorder that a person’s actions are driven solely from within themselves and without any influence on their behaviour arising from the circumstances or the words and actions of others, including the victim. Thus, abnormality of mental functioning should surely be a contributory cause or a basis for understanding the offence, but be neither a necessary cause nor a sufficient cause of the killing. Amendment 157 proposes that nothing beyond the word “understanding” is required in the statute and that causation is too restrictive a term. Again, I want to probe what the Government think will be the outcome of the use of the defence.
Finally, I know that many of the lawyers here will say that Amendment 162 is completely loopy because it is entirely unnecessary, and I have had the benefit of discussions with the noble Lord, Lord Bach, about it. Why is it necessary to give a partial defence of diminished responsibility to a charge of attempted murder when the whole point of the diminished responsibility plea is to move from murder to manslaughter, where a range of sentence options is already available? I accept that that is a very good point.
I want to talk about what happens in practice, because although the offence of attempted murder in legal terms is thought of as a lesser offence than murder, in psychiatric terms it is actually often as severe because the risk that the individual poses is exactly the same as the risk of murder. In terms of preventing risk to others, the person often requires a rapid disposal from the courts to an appropriate place for treatment. The difficulties lie in persuading individuals charged with an offence that was not followed through to the completion of a murder but was an attempted murder to plead insanity. At this point the only defence—if they are going to be disposed of quickly by the court—is the defence of not guilty by reason of insanity. Getting people to plead insanity is very difficult indeed. Trying to persuade a patient is hard to do because it is one thing for someone to say, “I accept that I have diminished responsibility for this act, and please put forward that point”, but quite another for them to say, “Yes, I am insane or was insane when I did it”. Defendants do not like to have it charged.
What happens in practice is that juries often bring in a guilty verdict and individuals are sent to prison where they languish while waiting for a psychiatric opinion. It can take three or four months for someone with a psychosis to get out of prison and into an appropriate special hospital or regional secure unit. While I accept that in legal terms this amendment puts forward an odd proposal, I would like to explore how a similar provision can be made for those charged with attempted murder.
I wish to speak to Amendments 151 and 158 in the name of my noble friend Lord Thomas of Gresford, Amendment 154 in the name of the noble Earl, Lord Listowel, and Amendment 155 in the name of the noble Baroness, Lady Murphy, who has just spoken. One of the difficulties for psychiatrists who have any contact with the courts and the law is that we are working on totally different sets of understandings. It is not that one side or the other is not looking for the truth of what has gone on, but in a sense the second part of the Title of this Bill points to the problem. The concepts of justice are really quite different. For psychiatrists, it is trying to understand what is appropriate for this particular person at this particular time with this particular kind of mental functioning. That is what I should like to talk about for a few minutes.
It is important first to recognise that human beings and their mental functioning are nothing like computers. For a computer, you draw up a plan, build the machine, plug it in and, with the addition of a little software, it is operational. But that is not how the minds of human beings are constructed. They develop over a period of time, and they do not develop all of a piece. Noble Lords will know from their children—or, looking around the Chamber, perhaps from their grandchildren—that as they grow and develop, they change quite dramatically. Some aspects remain remarkably the same, but other elements grow and change. Their emotional, physical and intellectual aspects, along with their capacity to stick with things, all change profoundly, but they do not do so all of a piece. Some young people develop emotionally at a completely different pace from their cognitive, intellectual development, while others develop impulse control much more slowly, or in some cases with precocious speed—which usually leads to other problems.
Earlier a noble Lord mentioned the example of someone aged 40 with a mental age of 10. It is an interesting rule of thumb, but it is completely meaningless because there is no such thing as a mental age of 10. In any case, does it mean someone’s intellectual age, their emotional development, or something else? Furthermore, someone who reaches the age of 40 will have developed beyond the age of 10 in a whole series of ways. So the idea of a “mental age of 10” is a meaningless concept from the psychiatric point of view, and indeed from the factual one as well. What we have is young children growing up and developing different components of their personalities. By the age of 10, some will behave like 15 year-olds, while some at the age of 18 will behave like 12 year-olds. Indeed, some 15 year-olds will behave this minute like 13 year-olds, but in five minutes’ time like 21 year-olds, and then a bit later like three year-olds. None of this is consistent, as development in young people is a fluid thing. The idea that we should ignore this and treat everyone as if they were 21 year-old adults or, worse still, 45 year-old adults, is not just. It does not recognise the reality of human development.
If what we are about is creating law, that is all very well, but if what we are about is trying to make the law just, then we have to recognise the reality that people do not develop all of a piece and that by the age of 10, they are not functioning as they will at the age of 14, 15, 17, 21 or 50.
That is why the amendments bring into the Bill the notion that not everybody is fully developed, and furthermore that the development may be impaired as part of the normal function of growing up. There were times when we behaved and thought more immaturely than others at the same stage at school. There may also be a falling back, a stunting or a disability that we need to regard as well. Some of the amendments are trying to point up that this notion of developmental immaturity may not necessarily be the same as a medical condition. That is the point. It is not all about illness. Whenever someone gets pregnant and has a baby, being pregnant is not a medical condition—it is not an illness—but many people who get pregnant also get illnesses. That is why there is such a crossover. We should not treat normal development as though it were a medical condition; and yet, in a sense, that is the only way that they can plead. That is one element of it.
The second element is that when people fall ill with certain kinds of mental disorders or psychosis, their perception of reality becomes disturbed. Sometimes that is terribly obvious; the person is clearly psychotic, acutely so, suffering from a schizophrenic illness of some description that is acute and severe. They completely misunderstand what is going on. That situation is relatively simple and straightforward. But there are also other situations where the person may be disturbed in their thinking right from the beginning; they are completely rational, but from a disturbed base. Indeed, one of the cases that Freud treated and wrote about was a judge who suffered from a condition like this, who was perfectly able to operate rationally in respect of everybody else, but inside they were disturbed.
If we do not take these things into account, we will not produce a just outcome—not for children who are not fully developed; not for those who have developed, but not completely when they are adults; and not for those who fall ill with a mental illness.
In the Bill, as has already been mentioned by the noble Baroness, Lady Murphy, “medical condition” is identified. I subscribe to this tightening, clarification and removal of the eccentricities and the idiosyncrasies of certain expert witnesses. I would seek from the noble Baroness a clarification that “medical condition” also means psychiatric conditions. I suspect that she will have little difficulty in reassuring us on that, but it is important to have it on the face of the Bill, so that people are absolutely clear about it.
There is much more that one could say about this Bill, but I will finish with one particular component: the plea of insanity. This has always seemed to me to be a particularly peculiar legal notion. The whole point about somebody being seriously mentally ill with a psychosis is that they do not have insight. They do not know they are mentally ill. They believe that the explanation that they are applying to the disturbed situation is a correct appreciation of reality. When you say to them, “I think you ought to plead insanity”, they say, “You must be mad. I am not insane; it is you who do not understand what is going on”. The irony of it is that the person who pleads insanity is less likely to be suffering from a psychosis than the person who has really got a psychosis, because they do not understand it and have no insight.
I trust I have at least said enough to demonstrate that if lawyers are from Mars, psychiatrists are not from the moon. They are dealing with real people and real problems. Our responsibility is to try to ensure that the laws that pass through this place and to another place encode justice in the capacity for their implementation, and not merely a set of rules that may be convenient but does not apply to the complexity of humanity.
It is with some diffidence that I follow the noble Lord, Lord Alderdice. I question whether lawyers necessarily come from Mars; I do not quite see myself in that sphere. Perhaps I should declare an interest as an honorary fellow of the Royal College of Psychiatrists, although I am never, rightly, allowed to practise.
I am very concerned about the potential and actual injustice to a very small number of young people, aged between 10 and 18, who are caught at the moment, rare though it may be, by the fact that, as I understand it, psychiatrists are very cautious about finding a recognised medical condition as set out in Clause 42 in proposed new subsection (1)(1)(a). Therefore, if one requires a recognised medical condition in relation to a teenager, it would be likely, as I understand it, that a psychiatrist would hold that it would be very difficult to say that this is a recognised medical condition, because it may be an element of developmental immaturity. Consequently, at the age of 25, an individual might be seen to have a recognised medical condition, but at the age of 15 would not. Therefore, at the age of 15 that individual might be found guilty of murder, whereas at the age of 25 they would not be found guilty of murder. That, as a lawyer and not as a psychiatrist, is the nub of the problem. It is the young person who is disadvantaged compared with the adult under the proposed new paragraph.
It is a serious matter. If the Government are going to say that Amendments 151 and 154 are not appropriate, they have to grapple with the fact that it is almost impossible to tell the distinction between this developmental immaturity and a real recognised medical condition that would continue throughout adulthood. I do not know how the Government manage to do that. These two amendments—I do not think it matters which of them goes forward—make it possible to show that a child, or young person, within the age group to which that young person belongs, is exhibiting a degree of immaturity or possibly a recognised medical condition, that differentiates that young person from the normal young person who would be behaving in a normal way, which would be unlikely, among other things, to be committing murder.
One has to recognise that Mary Bell and the Bulger murderers all behaved in quite extraordinarily bizarre ways, and when the psychiatrist saw them, as I understand it—though I have never read the reports—they had very considerable medical problems, and had had, of course, absolutely appalling upbringings. Whether or not, if this particular amendment was in place, they would have been found guilty of murder is another matter but at least they would have had the opportunity for that situation to have been considered. It must be wrong in principle, and it must be unjust, that if you are 25 and you have a condition you will not be a murderer, but if you are 15 and have a condition that is difficult to diagnose, you will be a murderer. There has to be something wrong with that.
My remarks will, I trust, harmonise with those already expressed during the debate on this line of amendments although, such was the depth and the sophistication of the speech by the noble Baroness, Lady Murphy, and indeed that by the noble Lord, Lord Alderdice, I cannot be absolutely sure. Moreover, in comparison to those speeches, what I am about to say will seem exceedingly naive.
Our amendments in this group were suggested by the Standing Committee for Youth Justice. They reinsert, as will be obvious to all of your Lordships, the Law Commission’s recommendation in its 2004 report Partial Defences to Murder, which was designed to bring the criminal law into compliance with Article 40 of the United Nations Convention on the Rights of the Child.
The Law Commission’s report on partial defences noted the opinion of one expert, the forensic psychiatrist Dr Eileen Vizard, who felt that the definition of diminished responsibility is defective in relation to children and young people because, as your Lordships are well aware, it omits references to developmental immaturity. The Law Commission agreed that there was a need to make these changes, but ultimately preferred to wait for a discrete review of the law of murder as it relates to children.
Our amendments would, we believe, ensure that the diminished responsibility partial defence could be available to a child or a young person under the age of 18 if their developmental immaturity substantially impairs their ability to understand the nature of their conduct. They would be guilty of manslaughter rather than murder, giving the judge a full range of sentencing options, as the noble Baroness, Lady Murphy, has already observed.
As the honourable David Howarth said on behalf of the Liberal Democrats in another place, the way the clause in the Bill is drafted is anomalous. A person who is physically 40 but has a mental age of 10 would be covered; the same would be true of a 17 year-old with the mental development of a 10 year-old. The trial would proceed on the basis, in other words, that there was a partial defence. Yet that benefit would not extend to a child of 10 who acted like a child of 10. Our amendments would give children the benefit of being children without having to show that they were immature for their age. They cannot understand the nature of their conduct under proposed new subsection (1)(a) of Section 2 of the Homicide Act 1957 because of their developmental immaturity.
This has been a very complex debate. I thank the noble Baroness, Lady Murphy, and the noble Lord, Lord Alderdice, for the powerful speeches they made enabling us all better to understand things from a psychiatric and psychological point of view. That is a very important benefit. I will take very seriously the invitation of a number of noble Lords, particularly the noble Baroness, Lady Murphy, and the noble Lord, Lord Alderdice, to say things on the record which clearly identify the way in which the Government are thinking. Bearing in mind the nature and breadth of these amendments, I anticipate that that might take me a little while.
I say to the noble and learned Lord, Lord Lloyd, how much I appreciated his succinct exposition of this matter. Will he forgive me if I have to take just a little longer, although I agree that it is very nice to be in comity on the odd occasion?
Amendment 151, which was spoken to so well by the noble Lord, Lord Carlile, on behalf of the noble Lord, Lord Thomas of Gresford, Amendments 155A, 156A and 156B, spoken to by the noble Lord, Lord Kingsland, and Amendment 154, spoken to by the noble Earl, Lord Listowel, all deal with developmental immaturity. The noble Lord, Lord Kingsland, said quite clearly that the concept of developmental immaturity formed part of the Law Commission’s recommendations on reform of the partial defence of diminished responsibility. The Law Commission recommended that in the case of a person aged under 18, developmental immaturity ought to be a possible basis for the partial defence as well as or in combination with an abnormality of mental functioning arising from a recognised medical condition. The Law Commission’s recommendation was specifically limited to defendants aged under 18, as a number of noble Lords have said. Amendment 151 would of course go even further and apply it to any defendant. However, following very wide consultation, the Government decided not to accept the Law Commission’s recommendation to extend the partial defence of diminished responsibility to include a developmental immaturity limb for under-18s and would certainly not support a developmental immaturity limb without any age limit.
It is important to explain why we came to that conclusion. There are two reasons. The first is that there is no provision for developmental immaturity in the current law of diminished responsibility, and we do not believe that the case has been made that there is a real problem to be addressed. Indeed, the diminished responsibility partial defence should, we believe, be fully adequate to meet appropriate cases involving under-18 year-olds and adult defendants. I accept entirely what was said by the noble Lord, Lord Alderdice, that there is a wide variation of maturity and that people mature at different ages, but we have to look at the mischief that needs to be cured. Is this a mischief that needs to be addressed?
Secondly, there are some clear drawbacks to introducing the developmental immaturity limb to the defence. When discussing the concept of developmental immaturity, a distinction has been made by some between so-called abnormal and normal developmental immaturity. We heard that in this debate. An abnormal immaturity, as has been clear from various statements, is where the child is in some way unusually underdeveloped for their age. The Government believe that such abnormal immaturity is covered by the diminished responsibility partial defence we are proposing, as we would expect the child in such a case to be suffering from a recognised medical condition. So we would argue that there is no need to make explicit provision. That would also apply to an abnormally immature adult.
Normal immaturity—if that is not a contradiction in terms—is where the child is around the level of maturity one would expect for their age but less mature than one would expect an adult to be. We accept that the proposed diminished responsibility partial defence does not make provision for normal immaturity but we are not at all convinced that it is necessary or desirable to introduce a separate developmental immaturity limb for this purpose, as was said by the noble and learned Lord, Lord Lloyd. As I have indicated, during our consultation we did not receive any evidence that the existing law is causing real difficulties in practice as a result of the absence of a developmental immaturity provision or that injustice is occurring in specific cases. A number of noble Lords underlined that we have to address the injustice; that point was made strongly by the noble Lord, Lord Alderdice.
I fully understand and sympathise with the concerns of noble Lords that young people who are genuinely vulnerable should be able to benefit from the diminished responsibility partial defence to murder, a point strongly made by the noble Earl, Lord Listowel, among others.
Let me reassure your Lordships about cases which are undeniably deserving and which would be categorised as abnormal immaturity. For example, if the child defendant has been diagnosed with autistic spectrum disorder and this has substantially impaired his or her ability to understand the nature of their conduct, to form a rational judgment or exercise self-control, or any combination of the three, such a child would fall within the diminished responsibility partial defence as proposed. The same considerations would apply if one were to substitute, for example, learning disability or frontal lobe disorder for autistic spectrum disorder in the example that I have just given.
The conditions I have mentioned are all listed in the World Health Organisation’s International Classification of Diseases—ICD-10—and the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. I hope that noble Lords will accept that these are probably the best known and most highly regarded—
I thank the noble and learned Baroness for giving way. My understanding is that the frontal lobes of children mature at about the age of 14, so it would be normal for the frontal lobes of a 13 or 12 year-old to be immature and therefore for those children to be particularly susceptible to impulsive behaviour. If I heard the noble and learned Baroness correctly, she said that, where the development of the frontal lobes was immature, it would be recognised as a mental condition. That probably highlights the difficulty. We are not saying that children who lack development of their frontal lobes have a mental condition but that it is just normal for children of 13 or 12 not to have developed those frontal lobes. We want the courts to be able to take account of that. Perhaps I misunderstood the noble and learned Baroness.
I am trying to say that where a child’s maturity is consistent with its chronological development and falls within the normal spectrum, we have not had any evidence to indicate that it causes difficulty in cases. Where a child suffers from a recognised abnormality or a condition which falls within the recognised list that all medical practitioners use, that enables consideration of whether advantage could be taken of the diminished responsibility provisions. These lists are probably the best known and most highly regarded of the accepted classificatory systems which together encompass the recognised physical, psychiatric and psychological conditions and which the Government expect will be used when considering whether a medical condition is recognised. The noble Baroness, Lady Murphy, is right in supposing that this kind of list will be relied on to determine whether something constitutes a recognised medical condition, and these together will encompass the recognised physical, psychiatric and psychological conditions. She need not worry that that term does not encompass all those things that she would wish it to do.
We are therefore quite sure that young people suffering from these conditions would in no way be excluded from running the diminished responsibility defence by absence of a developmental immaturity limb. On the other hand, were the developmental immaturity provision to be included, there is a risk that the defence would become too wide and permit potentially unmeritorious cases to succeed. Such a change would complicate and probably lengthen the trial without good reason in many cases where a defence of diminished responsibility should not be available as the defendant knows what they are doing and are able to function “normally”.
We recognise that the level of maturity of defendants, even within so-called “normal” maturity, will vary. Some defendants will have lower levels of maturity for their age than others, but we do not consider that such developmental immaturity should of itself be sufficient grounds for reducing a murder conviction to manslaughter, which would set the threshold for partial defences too low. It should be available only where the killing was linked to an abnormality of mental functioning arising from a recognised medical condition. We are concerned that, should developmental immaturity be available as a basis for the partial defence, there would be clear potential for it to operate unacceptably and undesirably.
A teenager, in a fight with another teenager, who impulsively pulls the knife that he is carrying and stabs the other youth to death, could seek to argue the defence, even if there was nothing identifiably—to put it colloquially—“wrong” with them and they were not “abnormally” developmentally immature for their age but simply less mature than adults. We do not believe that there should be the possibility of this amounting to sufficient grounds to reduce the ensuing verdict from murder to manslaughter.
There is no issue of young people being denied access to the diminished responsibility partial defence or being disadvantaged with respect to adults. Wherever the defendant, young person or adult suffers from an abnormality of mental functioning arising from a recognised medical condition, it will be open to them to argue that this substantially impaired their ability to understand the nature of their conduct, form a rational judgment, exercise self-control or a combination of the three. If the jury agrees and finds that impairment of these abilities caused or was a significant contributory factor in the defendant’s carrying out the killing, the defence will succeed. We believe that it is right that the partial defence should apply only in these circumstances. I hope that that explanation will assist.
Amendment 153 would effectively negate one of the central changes that we are seeking to make to the partial defence of diminished responsibility by removing the requirement that the defendant’s abnormality of mental functioning arose from a recognised medical condition. The requirement that the defendant’s abnormality of functioning must have arisen from a recognised medical condition follows the Law Commission’s recommendations and is intended to replace the existing terminology of the partial defence of diminished responsibility with a more helpful and, we hope, modern definition so that defences can be grounded in a valid medical diagnosis based on the accepted classificatory systems and so that it is possible to accommodate future developments in diagnostic practice.
The concept of “recognised medical condition” represents in our view a much more helpful, up-to-date formulation than the current law and it has found widespread support. We are confident that it will prove to be a much more helpful term than the current phrase “abnormality of mind”, an expression that has no meaning in current medical terminology—we have heard that explored extensively this evening.
There is a risk that if the requirement for a recognised medical condition is removed it will allow the partial defence to be raised both by anyone who considers themselves mentally abnormal, even where there is no medical basis whatever for the claim, and by those whose abnormality of mental functioning results from actions on their part, such as consuming alcohol or illegal drugs. The partial defence should not succeed in such circumstances. I can assure your Lordships that the term “recognised medical condition” is sufficiently flexible to accommodate any changes in the consensus about whether a particular set of symptoms constitutes an actual condition. The accepted classificatory systems which cover recognised physical, psychiatric and psychological condition systems will be used when seeking to establish that the defendant was suffering from a recognised medical condition. It will also be possible, however, in relation to a condition not yet included in such a list for the defence to call on evidence from a recognised specialist who has had their work peer-reviewed or validated in some other way. A jury would then decide how to treat this evidence after appropriate direction had been given by the judge. This is important because it allows the law to keep abreast of medical developments in this area, which we have not been able to do in the past.
As to Amendment 155, the noble Baroness, Lady Murphy, would extend the scope of what must be substantially impaired by the abnormality of mental functioning arising from a recognised medical condition to include the defendant’s perception of reality. The Government do not believe this is necessary or appropriate, as in most cases where the defendant’s perception of reality is substantially impaired, the defendant’s ability to understand the nature of his conduct or to form a rational judgment will also be substantially impaired. That part of the test for diminished responsibility would already have been met and there would be no need for the amendment. In the unlikely event of cases arising where a defendant’s perception of reality is substantially impaired but his ability to understand the nature of his conduct, form a rational judgment and exercise self-control are not, we do not consider that he should be able to benefit from the partial defence as these issues go right to the heart of the case for reduced responsibility in homicide cases where there is an abnormality of mental function.
As to Amendments 156 and 157, they would appear to be aimed at removing the requirement that a defendant’s abnormality of mental functioning must have been at least a significant contributing factor in causing him to act as he did and I am happy to explain that as the noble Baroness invited me to. The Government consider it is necessary to spell out what connection between the abnormality of mental functioning and the killing is required for the partial defence to succeed. Otherwise, random coincidence would suffice. For this reason, Clause 42 provides that the abnormality of mental functioning must provide an explanation for the killing in the sense that it must have been at least a significant contributing factor in causing the defendant to act as he did. It need not be the only cause or even the most important factor in causing the behaviour but it must be more than merely a trivial factor. We believe this gets the balance about right.
The effect of Amendment 156 would be to leave only the requirement that the abnormality of mental functioning must provide an explanation for the defendant’s acts and omissions in doing or being party to the killing. We do not consider that this provides enough clarity about what is required. The defence could easily end up being either too easy or too difficult to access, depending on the interpretation of the courts, whether by requiring a full explanation so that it has to be the main cause or by allowing any explanation, however obscure, to suffice.
I am saddened that the noble Baroness should have described her Amendment 162 in such deprecating terms. I am sure nobody would have addressed her in such an unkind way. Amendment 162 would extend the ambit of the partial defence of diminished responsibility so that it applies to attempted murder. I understand what she says about the dilemma that many people are in with regard to the diagnostic assessment of a person’s condition. The whole concept of diminished responsibility, however, works as a partial defence to murder because of the availability of the alternative verdict of manslaughter. As the noble Baroness is aware, no such alternative is available in the case of attempted murder. It would in effect therefore be a full defence leading to an acquittal. I know that is not what the noble Baroness would want to see.
The verdict of manslaughter serves a particular function in relation to homicide in that it allows the mandatory life sentence to be avoided. The same considerations do not apply in relation to other offences where mitigating factors can already be prayed in aid at the point of sentencing. I hope the noble Baroness will find that, albeit I am a lawyer, I still belong to Venus.
For these reasons, I hope the noble Lords, Lord Alderdice, Lord Carlile, and Lord Kingsland, the noble Earl, Lord Listowel, and the noble Baroness, Lady Murphy, will find that the Government’s reasoning on this is sound and that the noble Lord, Lord Carlile. will be content to withdraw his amendment.
It falls to me as the person who moved the amendment to thank everyone who has spoken in this interesting debate on this congeries of amendments, involving all kinds of issues. I am disappointed by the Government’s response. Although the noble and learned Baroness may have received few, if any, representations about this matter, I offer her the prediction that textbooks will be written after many long appeal cases in relation to Clause 42, if it becomes law. It may have to be judicially reformed—if that is the proper way to put it—because of its effect on children with developmental immaturity. But we shall return to these things on another occasion. In those circumstances, I beg leave to withdraw the amendment.
Amendment 151 withdrawn.
Amendment 152 had been withdrawn from the Marshalled List.
Amendments 153 to 157 not moved.
Clause 42 agreed.
Clause 43 : Persons suffering from diminished responsibility (Northern Ireland)
Amendments 157A to 160 not moved.
Clause 43 agreed.
House resumed. Committee to begin again not before 9.16 pm.