David
Howarth: The Minister has just expressed precisely why I
want it to be like that, as the amendment intends. The attempt at
precision is what is causing all the trouble. It is sometimes better to
leave things to courts and to juries than to try to overdo the
precision even more, which will get a reaction from the courts and from
juries, which will be precisely what the Government did not want in the
first
place.
Maria
Eagle: I do not think that we are an enormous distance
apart. We are talking about how much causation is necessary between the
recognised medical condition and the abnormality that gives rise to the
act. Given that we are changing the statute, we need a certain amount
of provision, but we hope that the wording that we are putting forward
does not imply that there must be a hard causal link. It has to be the
main cause or even the most important cause, but it must be more than
trivial. I am not clear that the hon. Gentleman’s wording of
explanation is sufficiently precise, but we may have to agree to
disagree. I do not think that we are an enormous distance
apart. Amendments
400 to 402 introduce the concept of developmental immaturity into the
partial defence of diminished responsibility for people between the
ages of 10 and 18. On the previous occasion that we met, the
hon. and learned Member for Harborough was worried that it was
excluding children from the partial defence. It does not do that. There
are many people under the age of 18—indeed under the age of
10—who are diagnosed with recognised medical conditions that may
substantially impair their ability to do all kinds of things, and it
would certainly fit them into the kind of defence that we are setting
out here. Autistic spectrum disorders, for example, spring to mind.
They are sometimes diagnosed at a very early age, and parents usually
know about it before doctors. However, that is not to say that they are
not diagnosed at an early age—they are. Of course, the defence
would still be open in respect of children who have had a recognised
medical condition diagnosed.
11.15
am The
effect of the amendments would be to extend the partial defence to
where the defendant’s ability to understand the nature of his
conduct, form a rational judgment, or exercise self-control were
substantially impaired by developmental immaturity. The Government came
to the conclusion that it would not be appropriate to extend the
partial defence of diminished responsibility to include the
developmental immaturity limb when we were considering the
recommendations of the Law Commission. We looked at this very carefully
and the reasons are essentially twofold. First we are not persuaded
that there is an underlying problem that needs to be addressed.
Secondly, we think that there may be distinct disadvantages to
introducing this limb to the defence. During our
consultation, the Government did not receive any evidence that the
absence of a developmental immaturity provision in the existing law is
causing any significant difficulties in practice, or resulting in
injustice in specific cases. That being the case, we are not persuaded
of the need to introduce this new concept in the context of modernising
the partial
defence. We
also believe that including the provision will create a serious risk of
opening up the defence too widely and catching inappropriate cases.
Opening the door to young people to plead developmental immaturity
would complicate the trial unnecessarily in many cases where a defence
of diminished responsibility should not be available, because the
defendant is clearly in possession of all their normal faculties and is
at a level that one might expect at their age. One could not blame
advocates for trying any available defence—those of us on the
Committee who have ever practised law have all looked at every possible
angle. That is part of being an advocate. Therefore, no matter how
unlikely it might be that it could succeed, including the provision may
open the defence in a way that we do not want to, to a much wider range
of cases, in order to deal with an issue with which we are not
confident that there is a real practical problem.
However, we
are confident that obviously deserving cases—I have given the
example of a child with an autistic spectrum disorder—are
covered by the defence as it is currently cast. On that basis, we do
not believe that there is a serious issue of young people being denied
the defence of being disadvantaged with respect to adults. The defence
may be available to a person of any age, whether over or under 18. In
essence, wherever a defendant, young person or adult, suffers from an
abnormality of mental functioning arising from a recognised medical
condition, it would be open to them to make the case that that
substantially impaired their ability to understand the nature of their
conduct, to form a rational judgment, and to exercise self
control—or a combination of those three things. Even where a
relevant abnormality of mental functioning is present, a defence will
succeed only if the impairment of those abilities caused, or was a
significant contributory factor in causing, the defendant to carry out
the killing. We believe that that is the right balance and that the
partial defence should apply only in those circumstances. I hope that
that explains why we have come to the conclusion that we
should not follow the Law Commission’s recommendation in respect
of developmental immaturity.
I have
probably been speaking for quite long enough on this group of
amendments. I should like to invite the hon. and learned Member for
Harborough to withdraw his amendments, but no doubt he will have
something to say to us about
that.
Mr.
Edward Garnier (Harborough) (Con): I am grateful to the
Minister for explaining the Government’s response to the
arguments put forward by the hon. Member for Cambridge and me. However,
I am still of the view that if the Bill were a ship, it would capsize.
It is constructed on a small hull—its title, the Coroners and
Justice Bill—but the superstructure is too heavy and too big for
the vessel. Over the past hour or so and at the end of
our previous sitting, we have had reasonable debate about one of the
most important aspects of the criminal law. However, this part of the
Bill is spatchcocked into a measure that deals, literally, with between
15 and 20 other discrete and complicated areas of the law. I urge the
Government not to do that because although we have been having a good
conversation, it is not the way to develop the criminal law.
I
also urge the Government not to rely on or be seduced by the adjective
“modern”; although it sounds nice and effective, it hides
a multitude of ill-considered ideas. The reason why the common
law—if I may say so—works is that it has been thought
about in a developmental way over many centuries, not cobbled together
in an overcrowded Bill in a timetabled Committee sitting. We cannot do
anything about that now, and we have done our best in the short time we
have, but I repeat my plea to the Government not to do that
spatchcocking again. I said the same thing during the Criminal Justice
and Immigration Bill, the Offender Management Bill and a number of the
other Bills related to criminal justice that the Government have
presented since 1997. I say it not only because I think that the system
would be better in itself, but because it would make my life more
comfortable. As the Committee knows, and is bored of me saying, I am
not only a Member of Parliament, but a Crown court recorder, a
part-time criminal judge. One of the things that I have to do is to
take judicial refresher courses, which I do on both a day-case basis
and a three-day residential course basis at Warwick
university. Mr.
Henry Bellingham (North-West Norfolk) (Con): Take the
Minister with
you.
Mr.
Garnier: My hon. Friend anticipates me. I urge Ministers,
if they ever have the time, to come to the Judicial Studies Board
courses, because they will see how devastating the analysis of the
legislation is. Nobody suggests that Ministers are ill-motivated, but
people suggest that Ministers are in too much of a hurry to pass
legislation, as if that answers the public policy problem that is
revealed. Listening
to the hon. Member for Cambridge has reminded me somewhat of the
lectures I have heard by David Thomas, John Spencer and Nicola
Padfield, who are all colleagues of the hon. Gentleman in academic life
at Cambridge university. Although we are in Committee to legislate, not
to have an academic discussion, it is important that if we are
developing the criminal law, we should do so with some measure of
understanding about what we are doing. The law should be fair,
particularly in relation to homicide, and the punishment should fit the
crime. The law should also produce a rational division of function
between the judge and the jury. Perhaps more important in relation to
the discussion we are having, it should be easy for the citizen to
understand and for the jury to
apply. Despite
all the references to the words “modern” and
“modernisation”—
Maria
Eagle: I only said it
once.
Mr.
Garnier: Now the Minister is getting defensive. We are in
danger of producing more and more law that is less and less easy to
understand. The Minister may
not suffer from it but I do, because when I go to the JSP courses, as
the only parliamentary representative on such occasions, they blame me
for passing those laws. I urge both Ministers to spare a few moments
and come to one of the courses—they would find it
instructive.
Mr.
James Gray (North Wiltshire) (Con): They would be
lynched.
Mr.
Garnier: They might avoid that. Both the hon. Member for
Cambridge and the Minister rehearsed the existing law. They took us
through section 2 of the Homicide Act 1957 and the Law
Commission’s recommendations. From their different standpoints,
they told us why the commission’s recommendations should or
should not be followed. My sympathies, I am afraid, lie more with the
hon. Gentleman than with the Minister on this occasion—albeit
that I fully accept the political difficulty that all Governments face
in relation to the question of the mandatory life sentence for murder.
Until we unravel that difficulty—today is not the day to do
that—we will go through the complicated hoops and over the
hurdles that have been mentioned today.
I fully
accept the Minister’s points in relation to my arguments about
the victim’s state of mind affecting that of the killer. I will
not pursue those arguments further but they were worth putting on the
record. They might be more suitable for writers and academics than for
a Public Bill Committee, and perhaps such arguments can be further
developed in another place. I do not want to press the amendments
further, and I thank the Minister for responding carefully to
them.
There is more
work to be done on the issue of developmental immaturity. Although I
accept the Government’s response, and I understand why it
differs from that of the Law Commission and from the views held by the
hon. Member for Cambridge and me, the argument will not go away. The
difference between what the Government propose and what we argue for
relates to the question of developmental immaturity. The Law Commission
was anxious to include that because criminal responsibility begins at
the age of 10. At that age the frontal lobes of the brain, which govern
self-control among other things, are not fully developed. Most experts
who were consulted considered it essential to have regard to that
factor when considering the extent of a young defendant’s
responsibility for his conduct.
As the
Minister said, the Government did not accept that line of argument for
two reasons. First, they do not believe that the absence of such a
provision is causing serious problems in practice and, secondly, they
felt that it would open up the defence too widely and catch
inappropriate cases. Even if it were to succeed only rarely, as the Law
Commission suggests, the Government thought it likely that far more
defendants would try to run that defence, thereby diverting attention
from the key issue in too many trials.
As a matter
of practice, judges are quite acute at preventing defences from going
down cul-de-sacs or chasing irrelevant issues. Juries can spot a dodgy
case when they see one, even if they might not approach the issue in
the same academic or rational way as the hon. Member for
Cambridge or a trial judge. There is a certain paradox in the
Government’s approach to the arguments that have been put
forward by the Law Commission and those who agree with it.
At present,
natural developmental immaturity in a child who has reached the age of
10 does not constitute a defence. That may be why developmental
immaturity is not causing problems in practice. However, it is surely
offensive to justice that a child whose brain has not yet developed to
the extent necessary to provide the self-control found in an adult
should be unable to pray that fact in aid, at least as a partial
defence. Children develop at different speeds. If—I accept that
this is a big if—some are sufficiently mature at the age of 10
to have full criminal responsibility, those who are not should be
entitled to pray that fact in aid.
Maria
Eagle: Is not the hon. and learned Gentleman making an
argument for raising the age of criminal responsibility, rather than
including a developmental maturity limb in the partial defence? What is
his party’s position on
that?
11.30
am
Mr.
Garnier: We are at a stage of developmental immaturity in
relation to the issue of doli incapax. I will not pretend to come back
with a smart Alec answer. None the less, this is a live issue that
needs to be considered. I hope that I have answered the
Minister’s question in a way that does not dismiss it off
hand.
We must ask
ourselves about the key issue from which a plea of diminished
responsibility by reasons of developmental immaturity would detract.
Such a plea is likely to be advanced only when there is no issue about
the fact that the defendant had committed the killing. If provocation
was also being used as a defence, the age of the defendant, and its
effect, would have to explored for that purpose.
There is
perhaps a wider issue about whether under common law it would still be
open to a child to advance a plea of doli incapax, or lack of criminal
responsibility. That issue has been discussed in textbooks and I will
not delay the Committee further by going through it. In all events, it
will be apparent that my sympathies, and those of the Conservative
party—and this might be true of individuals in other parties as
well—tend towards the Law Commission’s view rather than
that of the Government.
Having said
that, as I indicated last Thursday, I am not going to press this matter
to a vote; it is almost too important to be limited to a yes or no
answer and requires a lot more thought. The Government are in a hurry,
the Bill is too big and we in the House of Commons cannot properly
discuss these issues in a way that produces a law that is clear, fair
and understandable to the jury and the wider public.
I will leave
the matter there for the moment and invite the Government to think
about it between now and the time that the Bill arrives in the other
place. In closing, I invite those in the other place to use the
opportunities that they have, untrammelled by time constraints, to
think about this and advise us more clearly. Should they come back with
any amendments, I hope that we will be given the time to consider them.
I beg to ask leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
Clause 39
ordered to stand part of the Bill.
Clause 40
ordered to stand part of the Bill.
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