Mr.
Garnier: We have dealt with those parts of the Bill that
relate to coroners reform and data sharing, and we are now getting on
to criminal law. In any sensibly organised Government, the parts of the
Bill that we have completed would have been parts of two separate
Bills. There should have been a discrete amending data protection Bill,
and a discrete coroners Bill, as promised in 2006. But there we
are—this is how the Government do it, and we must do the best
that we can with what we have.
The amendments
tabled in my name and those of my hon. Friends are short to describe
and short to debate. Under clause 39, we are dealing with partial
defence to murder: diminished responsibility. Under current law, that
permits someone who might otherwise be convicted of murder to be
convicted of manslaughter under certain circumstances, by virtue of
diminished responsibility. Our amendment 17, which is allied to our
amendment 18, seeks to clarify as best we can a rather
distressing aspect of the law of homicide which, with the ageing of the
population, may become more apparent.
I want to say
at the outset that I am not proposing a licence for mercy killing or
for ridding the world of inconvenient elderly people or the terminally
ill. What I ask for—I say this on the basis of representations
from parties outside the House—is a discussion and some
understanding of the issue in relation to amendments 17 and
18.
The second
raft of amendments deals with those under the age of 18. If the clause
passes unamended, they will not have the same access as those over 18
to the partial defence under clause 39. Amendment 400 would reinsert
the provisions recommended by the Law Commission in its 2004 report
“Partial defences to murder”, which was designed to bring
criminal law into compliance with article 40 of the UN convention on
the rights of the child. Amendment 400 has been brought to my attention
by the Standing Committee for Youth Justice, and I shall discuss it
briefly. Amendments
19 and 20 and new clause 40 are broadly identical amendments dealing
with clause 40, which covers diminished responsibility under the
criminal law of Northern Ireland. I shall not deal with those in my
discussions, save by implication in my discussion of clause
39.
May I take the
Committee to the top of page 24 of the Bill and section 2(1) of the
Homicide Act 1957? The Bill seeks to amend the Homicide Act so that a
person—let us call them D, or the defendant—who kills or
is party to the killing of another is not to be convicted of murder if
D was suffering from an abnormality of mental functioning. The Bill
goes on to describe a number of factors that come into play.
Amendments 17
and 18 attempt to permit the law of diminished responsibility to apply
not only to the person who kills while suffering from an abnormality of
mental functioning, as described in paragraphs (a), (b) and (c) and
further described under proposed new subsection (1A) to the
Homicide Act 1957, but to the person killed. That may seem strange, but
I have received representations from a number of people and
organisations who are concerned that D, the person responsible for the
killing, may suffer some disturbance of the mind or loss of
understanding about what he is doing and be driven to a terrible state
that leads to the killing of another by virtue of the recognised
medical condition of his victim.
It is easy,
but perhaps dangerous, to give too-precise examples. I do not want to
shut myself out from a sympathetic hearing by giving the wrong example,
nor do I want to be too prescriptive. Essentially, I am suggesting the
following. There may be an elderly couple in which one partner is
gravely mentally ill or suffering from Alzheimer’s or some other
form of dementia. That might cause a reaction in D, the person who
kills, that although not medically recognisable is sufficient to lead
him or her to kill out of desperation and a sense of
hopelessness.
I underline
that I am not suggesting that we should legislate to licence for mercy
killing or to rid the world of the inconvenient, but we need to bear in
mind that there may be people who kill others out of a sense of
hopelessness caused by the medical or other condition of the victim. I
appreciate that that is a controversial thing to try to advance, and I
want to make it clear that I am not requiring it be put to a vote but
to be
compassionately and sensitively discussed. I ask the Committee to
consider whether clause 39 covers sufficient situations in order that
justice can be done in the cases that I have
described. Maria
Eagle: Will the hon. and learned Gentleman articulate for
the Committee precisely how what he has just described—his
intention in drafting the amendments—differs from what he
referred to as a mercy
killing?
Mr.
Garnier: The Minister is perfectly right to ask that. It
is not an aggressive question but one that I need to be able to answer
or that the Committee needs to discuss. When I opened my remarks, I did
not want to give too many examples or appear to be too prescriptive.
There will be cases when a perfectly sane and undisturbed person
strangles or suffocates their terminally ill partner, which would be a
mercy killing. Clearly the husband, wife or partner is deeply concerned
about the quality of life of that other individual. They do not
necessarily want to see the end of their life, but they can see that
the potential victim has no quality of life, and the only way that they
can see of relieving that other person of their miserable existence is
to kill
them. The
hon. Lady will be aware of court cases where, because the facts of
those cases sometimes can only lead to a conviction for murder, and the
court has no discretion other than to give a life sentence, one is left
with the position where a court will give a life sentence with a very
low custodial tariff. That is one way of dealing with
it. However,
I am talking about the sort of case where the husband—it does
not matter which sex we are talking about; let us assume that the
husband is the killer—has been so adversely affected by the
condition of his partner or his wife that he kills her. The recognised
medical condition belongs to the victim under my amendment. The
impairment of the killer’s ability to do one or more of the
things mentioned in proposed new subsection (1A), that is to say, to
understand the nature of his conduct, to form a rational judgment, to
exercise self-control, is imposed from without rather than derived from
within. It is a difficult thing to explain in a sensible way, but I
think that the Minister understands what I am trying to get
across.
Maria
Eagle: Would the husband in that instance not be suffering
from a recognised medical condition that would fall within the clauses
drafted?
Mr.
Garnier: He may be. I would need to be shown medical or
other expert evidence that would persuade me. It may be that the
condition caused by the victim, which is impacting on the killer, is
not a recognised medical condition under the clause, as currently
directed. I am trying to find a just way forward. I am putting my stick
into the water and walking forward step by step, appreciating that I
may get knocked over by a question such as the one advanced by the
Minister or by other
contributions. I
have probably said enough now to explain what I am attempting to do. I
fully accept that the way in which I have drafted the amendments may
not be apt to deal with the problem that I am describing. I am
reasonably sure that the Minister has an understanding of the
problem that I have identified, which has been drawn to my attention by
outside
parties. Amendment
400 deals with the anomaly that the clause, in so far as it amends
section 2 of the Homicide Act 1957, will protect those over the age of
18, but will not do so, as I understand it, for those under that age.
So we could get a situation where a man of 40, with the emotional or
intellectual maturity of a 10-year-old, can rely on the clause, because
he has a recognised medical condition or a substantial impairment of
his ability to do one or more of the things mentioned in proposed new
subsection (1A). But a 10-year-old in the same condition, as I
understand from the Standing Committee for Youth Justice’s
briefing, will not have the ability to
rely on the clause for defence. I see the Minister shaking her head. It
may well be that I have misunderstood the briefing, or that that
committee has misunderstood how the law is to be amended—or
both. But there we are—such things happen from time to time,
even in the best of worlds. I place the two amendments before the
Committee for their consideration, and look forward to other
contributions or a response from the Minister. Ordered,
That the debate be now adjourned.—(Ian
Lucas.) 3.52
pm Adjourned
till Tuesday 3 March at half-past Ten
o’clock.
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