The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle): Is it the position of the hon. Gentleman’s
party that the mandatory life sentence should be
abolished?
David
Howarth: My position is the same as the Law
Commission’s, that what we should do is to say where the
mandatory life sentence should apply, which is in a narrow range of
cases—although in some instances, the Law Commission pointed out
that there are some anomalies where it should, but does not, apply now.
We start with what we want to define as murder, which gives us the
scope of the mandatory life sentence. I would be happy then to have
very narrow defences, as under the Bill, because if we have a mandatory
life sentence, we should not allow pathways out of it—we have
decided that it is mandatory—but then the rest should consist of
optional sentences for murder two and manslaughter. I prefer to do that
through definitions of offences rather than using slippery defences, as
under the
Bill. Returning
to the point that I was making, juries will have their way with such
defences anyway. If the Government went too far in trying to narrow the
defences, all that would happen is that in reality—though not in
the world of law—we would have something like the French system;
in France, there is a general rule that extenuating circumstances, as
found by the jury, remove the mandatory life sentence. Returning to the
Minister’s comments, it might well be, after a number of years
of trying to renew a set of definitions, that we come to the conclusion
that the best thing that we can do is keep up with reality itself and
move to something like the French
system.
Maria
Eagle: It is a pleasure to be back in Committee this
morning—as the hon. Member for Cambridge has said, we may be
here for some time. Given that the clause stand part debate is included
in the group of
amendments, I shall begin by talking about clauses 39 and 40, which we
are debating the stand part of, before moving on to deal with the
amendments and some of the points that have been made by the hon. and
learned Member for Harborough in moving his
amendment. Clause
39, as Members have mentioned, reforms the law on diminished
responsibility, which is a partial defence to murder. The hon. Member
for Cambridge gave a brief exposition about the Law Commission’s
report and his views on it, which has been helpful to the Committee in
setting out the wider context of the offence generally, some of the
developments that have taken place over the past few years and attempts
to look at how to best reform the law—I think everybody admits
that the law could do with some
reforms. The
partial defence was examined along with other matters in the 2006
report by the Law Commission, called “Murder, Manslaughter and
Infanticide”. It concluded
that “The
definition of ‘diminished responsibility’ should be
modernised, so that it is both clearer and better able to accommodate
developments in expert diagnostic
practice.” The
Government agree with that view, and the clause is designed to try to
do that. It replaces, as the hon. Member for Cambridge has alluded to,
the existing definition of the partial defence to murder of diminished
responsibility with a new one is based on the concept of an abnormality
of the mental functioning arising from a “recognised medical
condition” by amending section 2 of the Homicide Act
1957. The existing partial defence defines diminished responsibility,
which the hon. Gentleman has made reference to,
as: “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 [the defendant’s]
mental responsibility for [his or her] acts or omissions in doing or
being party to the
killing.” The
many lawyers in Committee, I think, will remember fondly learning those
things at law school—in some cases, rather longer ago than in
others. The Law Commission has two main
criticisms—[Interruption.] Enough has been
said about how long ago it was in my case. The Law Commission has two
main criticisms of the partial defence. First, that the defence was not
drafted with the needs and practices of medical experts in mind, and
secondly that it does not explain what is involved in the substantial
impairment of the defendant’s mental responsibility, which is
required for it to succeed. Subsection (1) deals with the first
criticism; namely, that the definition of diminished responsibility in
the Homicide Act 1957 is not consistent with medical practice. The
phrase “abnormality of mind” is not a psychiatric term,
and the permissible causes as set out in the current definition do not
represent current thinking on all causes that could give rise to mental
impairment. Its meaning has had to be developed by the
courts.
The hon.
Member for Cambridge is a big fan of the common law. Common law has
enormous advantages but also some disadvantages in the way that it
develops. The changes that take regard of the concept of a recognised
medical condition are to ensure that we replace the existing definition
with one that will not have to be developed through time by common law,
but that will keep up with developments in medical practice and
understanding of the way in which diseases
work.
David
Howarth: This is an important point, because precisely the
same point can be made about the law of murder, which is a common-law
offence. As the Law Commission has said, it is such a common-law
offence that it is difficult to state what it means with any precision.
Why do the Government take that view about the defence of diminished
responsibility, but do not hold the same view of the offence of murder
in the first
place?
Maria
Eagle: I explained at the time that we responded to the
Law Commission’s report and came forward with some of the
proposals, which were, of course, consulted on before the production of
the Bill. The Law Commission’s proposals were somewhat radical,
and they did not command total agreement between all stakeholders and
users of the system, whom we must get on board to ensure that the
system works and is credible. We were therefore not able to reach
agreement that led us to believe that we should go forward with the
full panoply of restructuring the offence as well as splitting it
up—as set out by the hon. Member for Cambridge—at this
time. However, we believed that it was important to proceed with some
of the valuable reforms of the partial defences that are in the Bill.
There will be a second stage to our considerations about whether to go
forward with some of the other proposals in the Law Commission’s
report. All
the lawyers, and perhaps others on the Committee, accept that the law
sometimes moves in a glacial fashion and does not always speed ahead as
fast as the intellectual thought of the Law Commission. We must ensure
a general consensus that we are going in the right direction, which was
explained at the time of the consultation. We made it clear that we did
not intend to go ahead at this stage with the entire proposal for
reform, but that reforming the partial defences in this way was a
valuable contribution to developments. We undertook to look further at
whether the other proposals should be taken forward, in view of
experiences arising from the changes, and we are still in that
position. The
hon. Gentleman talked about classificatory systems. There are a number
of accepted systems that encompass recognised physical, psychiatric and
psychological conditions. Foremost among those is the World Health
Organisation’s international classification of diseases, ICD10,
as well as, as has been said, DSM4, which is the American Psychiatric
Association’s diagnostic and statistical manual of mental
disorders—please do not test me on that
one. The
Government envisage that such accepted classification systems will be
used later. If a qualified medical expert gives evidence that, at the
time of the killing, a defendant was suffering from a condition
included in one of these lists, and the jury accepts that, that part of
the test will be met. There is also scope for conditions that are not
included in such a list to be deemed recognised medical conditions for
the purposes of the test, which addresses one of the concerns alluded
to by the hon. Gentleman. Flexibility is important, as it caters for
emerging conditions that, while they have not been recognised and put
on the classificatory lists, are part way through being recognised and
medical people out there are expert at dealing with them. The defence
could therefore call a recognised specialist who has had their work
peer-reviewed, although it has not quite got on the list. It would then
be for the jury to decide whether that met the partial defence
requirement.
11
am Subsection
(1) provides that a person who kills or who is a party to a killing is
not to be convicted of murder if he or she was suffering from an
abnormality of mental functioning that arose from a recognised medical
condition, which substantially impaired his or her ability to do
certain things that are set out under subsection (1)(1A), and which
provides an explanation for their acts or omissions in doing things or
being a party to the killing. The hon. Member for Cambridge referred to
causation. The meaning of the “explanation” is expanded
in subsection (1)(1B), which I shall cover when dealing with the
amendments. The
Law Commission’s second main criticism of the law is that it
refers to the
defendant “suffering
from such an abnormality of mind...as substantially impaired his
mental responsibility for his acts or omissions in doing or being a
party to the killing”.
However, it does not
explain what is involved in such a substantial impairment. Subsection
(1)(1A) deals with the issue, following the Law Commission’s
recommendation, by specifying that the abnormality of mental
functioning that has arisen from the recognised medical condition must
have substantially impaired the defendant’s ability to do at
least one of the following actions: to understand the nature of his or
her conduct; to form a rational judgment or to exercise self-control.
If that test is not met, the partial defence cannot
succeed. The
Government agree with the Law Commission that it is necessary for there
to be some causal connection between the abnormality of mental
functioning and the killing in order for the partial defence to
succeed. It is right for there to be some connection between the
condition and the killing, otherwise the partial defence could succeed
in cases when the defendant’s mental condition made no
difference to their behaviour, and they would have killed regardless of
the medical condition. For that reason, subsection (1)(1B) provides
that, for the partial defence to succeed, any such abnormality of
mental functioning must have been at least a significant contributory
factor in causing the defendant to do as he did. It need not have been
the only cause, the main cause or the most important factor, but it
must be more than merely trivial. The partial defence cannot succeed
when the truth is that the recognised medical condition and the
impairment were randomly present by coincidence and made absolutely no
difference to the behaviour that
ensued.
David
Howarth: I do not want to go into the technicalities of
causation and the law because that would take me and the whole
Committee back to my previous life. I just want to draw attention to
the practical problem caused when psychiatrists are called to give
evidence but they say that they do not deal with such categories,
contributory factors or cause, and deal only with people’s
minds. There is a lack of connection between the way in which lawyers
think and how psychiatrists
think.
Maria
Eagle: There certainly will be other evidence of what went
on in the individual circumstances of the case before the court, as
well as the medical evidence. While we would not necessarily expect the
medical expert to be an expert on causation, it would be for the jury
in respect of all the evidence it has before it to decide whether it
was merely coincidence or whether a
cause contributed more or was of some significance and related the
behaviour to the medical condition. We would expect the expert to at
least be able to say whether the kind of behaviour that was exhibited
was the sort that often related to the medical condition that was being
discussed. I am sure that the 12 good men, women and true would be able
to use their sense in respect of the medical and other evidence before
them. Clause 40 extends the provision that we are discussing under
clause 39 to Northern
Ireland. Amendments
17 to 20 tabled by the hon. and learned Member for Harborough would
extend the partial defence of diminished responsibility in murder cases
significantly beyond the scope of current legislation. It would mean,
recalling the hon. and learned Gentleman’s speech at our
previous sitting, that the defence could be used not when the defendant
was suffering an abnormality of mental functioning arising from a
recognised mental condition, but when the deceased had been suffering
in that way—in other words, the victim, the person who had been
killed. The defence would need to show that the defendant’s
ability, not that of the dead person, to understand the nature of his
conduct, to form a rational judgment or to exercise
self-control—or any combination of the three—had been
substantially impaired by the deceased’s abnormality of mental
functioning, and that the deceased’s abnormality provided an
explanation for the
killing. The
hon. and learned Gentleman’s remarks set out what he was
reaching for, and he accepted that there might be some confusion in the
amendment. He was setting out that the abnormality of mind was that of
the deceased, rather than that of the person doing the killing. Those
present understood what he was getting at. However, his amendments
would lead to some bizarre and undesirable effects if we were to accept
them. The
partial defence of diminished responsibility has never been designed to
provide for such circumstances, but has always operated to make
allowance for defendants who at the time of the killing were mentally
impaired. We agree that that is the best basis for the continuation of
the partial defence and wish to retain that limited scope. The partial
defence should be limited to those whose own ability to exercise
self-control, make a rational judgment or understand the nature of
their conduct has been substantially impaired by their own abnormality
of mental functioning. For the defence to succeed, they would need to
show that the abnormality of mental functioning provided an explanation
of the killing—we have just been discussing that—so there
would have to be an element of causation, although not a heavy one. We
do not believe, therefore, that the amendments of the hon. and learned
Gentleman work
conceptually. It
is a bit unusual to suggest that one person’s abnormality of
mental functioning arising from a recognised medical condition would
have the effect of substantially impairing a different person’s
ability to understand the nature of their conduct, to form a rational
judgment or to exercise control. The amendments would not serve the
interests of justice, although we all understood the narrow ambit of
the cases that he was talking about. However, explicitly providing the
opportunity for the defence to inquire into the state of mind or
general health of the deceased would be a worry. We would not want such
things to
become commonplace in cases where the deceased had been suffering from
an illness of one kind or another, or to create a specific defence for
the killing of people who are mentally impaired. The signal that sends
to society and the public would be difficult to defend, and we cannot
support the amendments of the hon. and learned
Gentleman. There
has been a bit of discussion about the concept of “mercy
killings” and a person who kills out of some feeling to relieve
the suffering of the deceased. The current law of diminished
responsibility requires the defendant to have been suffering from an
abnormality of mind arising from one of a number of specified sources.
Our proposal introduces the concept of a recognised medical condition.
Conditions currently amounting to an abnormality of mind fall within
the definition of a recognised medical condition in the new test. Our
change of wording for the partial defence is designed to make the law
clearer, easier, more modern and better able to move into the future.
The definition should be easily understood rather than left behind by
medical developments, as the current one arguably has been. Amendments
17 to 20 seek to address a perceived problem that we do not believe
exists. Even if the problem existed as the hon. and learned Gentleman
set out, we do not believe that his amendments would work in a
desirable way to deal with what he had to
say. Amendments
164 and 165 of the hon. Member for Cambridge would undermine our
efforts to modernise the partial defence. The effect of amendment 164
would be to remove the requirement that the defendant’s
abnormality of mental functioning arose from a recognised medical
condition, and he explained why he put that forward.
However, we
believe that the inclusion in clause 39 of the requirement for a
recognised medical condition to have given rise to the abnormality of
mental functioning follows the Law Commission’s recommendations
in its report “Murder, Manslaughter and Infanticide”. It
is designed to bring the existing terminology of the partial defence up
to date in a way that encourages defences to be grounded in valid
medical diagnosis, linked to accepted classificatory systems, with the
flexibility to allow for future developments in diagnostic
practice. We
believe that “recognised medical condition”, despite the
concerns that have been expressed in the Committee, is a substantial
improvement on the current law. It is supported by organisations such
as the Bar Council, the Law Society and the Royal College of
Paediatrics and Child Health. We believe that it will bed down quickly
and it will be easier for the courts and medical practitioners to use
than is currently the
case. Amendment
165 would remove the requirement that the defendant’s
abnormality of mental functioning must have been at least a significant
contributory factor in causing him to act as he did. We have rehearsed
some of the arguments about causation. We do not believe that the
partial defence should succeed where random coincidence has brought
together the activity of the person and the recognised medical
condition. We want to be more explicit about the extent of the required
connection than the Law Commission was. We recognise that the Law
Commission was not engaged in legislative drafting, and that is why we
say that there must have been at least a significant contributory
factor in causing the defendant to act as he did. We do not require the
defence to prove that it was the only cause or the main cause or the
most important factor, but there must be something that is more than a
merely trivial factor. There needs to be a link and we believe that the
current wording gets that link
right. Amendment
165 removes all the detail and relies on the requirement that the
abnormality of mental functioning must provide an explanation. Although
the hon. Gentleman would no doubt argue that that does not remove a
need for causation altogether, we do not consider that it is
sufficiently precise. It is not clear how it would be interpreted by
the courts and the
defence.
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