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Lord Hardie: I am grateful to your Lordships for having raised this point. I consider that the words which are sought to be deleted are unnecessary and what I would propose to do, if the noble Earl would withdraw his amendment at this stage, is to table a similar amendment at Report, to delete the words which he seeks to delete. I would propose to make a statement at that stage if noble Lords should wish to have any clarification as to what the position would then be.

The Earl of Mar and Kellie: I am particularly grateful to the noble and learned Lord the Lord Advocate for those consensual words and I look forward to seeing what he comes forward with at Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 agreed to.

Clause 27 [Abolition of rebuttable presumption that a child is doli incapax]:

[Amendment No. 173 had been withdrawn from the Marshalled List.]

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Lord Goodhart moved Amendment No. 174:

Page 21, line 43, at end insert--
("( ) Where a child aged 10 or over is accused of an offence, it shall be a defence for him to show on the balance of probabilities that he did not know that his action was seriously wrong.").

The noble Lord said: Amendment No. 174 proposes the abolition of the rule known by one of those tiresome expressions of legal Latin, doli incapax. The doli incapax rule has come under considerable attack in recent years and that attack is indeed, I believe, to a large extent justified. In many cases the presumption that a child or young person under the age of 14 does not know that what he is doing is seriously wrong is indeed contrary to common sense. It is a waste of time and money to call evidence to prove what is in fact obvious: that a 13 year-old defendant who has done something extremely unpleasant knew that his conduct was seriously wrong.

We on these Benches are not prepared to support the rule as it now stands, but it is still true that 10 year-olds do not have the same degree of understanding of right and wrong as adults. Many 10 year-olds who commit criminal offences or acts which in the case of someone of capacity would be a criminal offence are children who have grown up in families where they have had inadequate guidance as to right and wrong and they cannot always be treated as being legally responsible for criminal actions.

One alternative possibility, apart from leaving the rule in existence as it now stands, would be to abolish the presumption completely but at the same time to raise the age of responsibility to 11 or 12. That is a proposal which is supported in fact by a number of voluntary organisations and it is a proposal with which I must say I have some sympathy. That sympathy has not been reduced by the disaster--I do not think any lesser word is appropriate--of the recent rape trial at the Old Bailey which, despite the extremely sensitive way in which it was handled by a very experienced judge, can in the end have done nothing but harm to all the children involved.

Our age of criminal responsibility is in fact very low by European standards. Of significant European countries apart from the United Kingdom, the only ones with an age of responsibility of less than 12 are Ireland and Switzerland; so I must say that I think the complete abolition of the doli incapax rule is wholly inappropriate. If the Government are not prepared to consider the possibility of raising the age of criminal responsibility, a better solution would be that which is in fact set out in Amendment No. 174: that is not to abolish the presumption but in effect to reverse it.

This will deal with the present situation because it will abolish the need for the prosecution automatically to have to lead evidence to show that the child defendant knew that what he or she was doing was seriously wrong. At the same time it will leave it open to the defence to call evidence that the child did not have the degree of understanding which is needed to establish criminal responsibility.

If we are to retain the age of 10 as the age of criminal responsibility I do not believe that it is right to abolish absolutely, as Clause 27 proposes, the presumption of

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doli incapax. In that case we need to retain the right to establish that in fact the child does not have criminal responsibility. I believe that that is a reasonable price to pay for the removal of the rebuttable presumption that exists now. I beg to move.

7 p.m.

Baroness Mallalieu: I support this amendment. In doing so it is right that I should declare an interest as a practising member of the criminal Bar who acted in the case to which the noble Lord, Lord Goodhart, has just referred and, sadly, other cases involving children as young as 10. The present law is plainly ripe for review and change, but to say goodbye to this doctrine altogether and put no safeguards in its place would be a major error that we would very soon come to regret. If we wanted to see more 10 year-olds sitting in the dock of our major Crown Courts sucking their thumbs and colouring in books during trials this particular clause unamended would be a way of achieving it.

Some 4,000 children aged between 10 and 13 pass through our criminal courts each year despite the existence of the doli incapax doctrine. If that presumption goes and nothing replaces it that number must increase. I accept it is far from satisfactory that at present in order to try to obtain the necessary evidence that a child understands right from serious wrong a police officer is obliged to question him or her from a pro forma list of questions about a range of irrelevant situations, asking him or her to indicate what, on a numeric scale, he or she considers the seriousness of such matters to be. I doubt that the right result is produced by this method or by calling to give evidence for the Crown people who sometimes hardly know the child but then profess on oath to be able to express an opinion on this issue.

At least the present doctrine requires the prosecuting authorities, and later the courts if the case proceeds, to give careful thought to whether the individual child is criminally responsible. It may well be that at present some who are so responsible escape justice because the evidence to prove that they understand cannot be adduced. Therefore, I accept the need for change. But equally I am sure that at present we try some children who should never reach a court. I fear that there will be many more if we simply adopt the course that the Government propose.

A child of 10 cannot be treated for the purposes of the criminal law like an adult. A child of 10 is unlikely to understand the complexities of a prosecution or the trial process no matter how carefully and sympathetically they are explained. He is unlikely to have the concentration to be able to follow the evidence properly. Often he cannot begin to give clear and consistent instructions to his lawyers. Often decisions which only the defendant should take about how to plead or whether or not to give evidence cannot be made by children of this age. The ordeal of giving evidence in a public forum, however sympathetically it is done, is magnified if one is dealing with a young child, not to mention the strain of awaiting trial, no matter how much it is expedited, which may have lasting and damaging effects.

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Where and how we try children for serious offences needs urgent examination and reform. Clearly, this amendment is not the place to explore that. Maybe we should be looking for ways of trying serious cases before judges sitting in youth courts. This amendment is no substitute for proper detailed examination of the case involving each individual proposed child defendant before the prosecuting authorities decide to proceed; in other words, before the trial process begins. If the law changes, the prosecuting authorities will have to be a great deal more rigorous than they are now in saying that there should be no action. At least under this amendment if it is left open to the defence to argue at some stage that the child is not criminally responsible, even as late as the trial itself, the injustice of a wrongful conviction may still be avoided.

It is perhaps the ultimate irony that no child under 14 is allowed into the public gallery at the Old Bailey, yet we put children of 10 in the dock there. If this clause is not amended I am afraid that we shall see even more of them there.

The Earl of Mar and Kellie: Since this is a United Kingdom parliament, I remind the Committee that for many years the age of criminal responsibility in Scotland has been eight.

Lord Ackner: I fully understand the concern of the noble Baroness as to whether we properly try children of very young ages. But I do not believe that what we are concerned with here has anything to do with that. One is concerned with the extent to which one changes the law in relation to a presumption. The present presumption obliges the prosecution to prove not only that a child under 14 committed a criminal act but also that he knew that the act was seriously wrong as opposed to being merely naughty or mischievous. That is all we are concerned with--nothing else.

Two years ago the Appellate Committee considered the case of C. (a minor) v. DPP reported in [1996] A.C. 1. The noble and learned Lord, Lord Jauncey, who presided said (at page 20):

    "The presumption has been subject to weighty criticism over many years, by committees, by academic writers and by the courts ... I add my voice to those critics and express the hope that Parliament may once again look at the presumption, perhaps as part of a larger review of the appropriate methods in a modern society of dealing with youthful offenders".

He went on to make the point:

    "No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation. In this connection"--

this point is related to what the noble Baroness has said--

    "it is worth mentioning that the system of children's hearings constituted by the Social Work (Scotland) Act 1968 which enables many offending children between 8 and 16 years of age to be effectively dealt with outside the criminal courts works extremely well".

That raises a quite different question.

Among the criticisms that have been voiced with regard to this presumption is an interesting article written way back in 1954 by Professor Glanville Williams. That

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can be found in the Criminal Law Review at page 493. He observed that the test of knowledge of right and wrong was bound up with the theory of moral responsibility and the right to inflict retributive punishment, since no one can justly be punished unless he is morally responsible.

The article continued:

    "Yet in respect of children it is just as generally abandoned. No one whose opinion is worth considering ought as a matter of moral necessity to expiate his wrong by suffering. Punishment may sometimes be the best treatment, but if so it is because this is the only way in which the particular child can be made to see the error of his ways ... In this climate of opinion the 'knowledge of wrong' test no longer makes sense ... Thus at the present day the 'knowledge of wrong' test stands in the way not of punishment, but of educational treatment. It saves the child not from prison, transportation or the gallows, but from the probation officer, the foster-parent or the approved school. The paradoxical result is that, the more warped the child's moral standards, the safer he is from the correctional treatment of the criminal law. It is perhaps just possible to argue that the test should now be regarded as even legally obsolete. The test was designed to restrict the punishment of children and should not be used where no question of punishment arises. This argument has to face the difficulty that the test traditionally protects the child from conviction, whereas the choice between punishment and other treatment is only made after conviction".

That emphasises how out of touch the presumption is in the present day approach to dealing with children.

I suggest that the experience in Scotland justifies the provision as set out in the Bill, and that, as the noble Baroness pointed out, we should dig more deeply into the question: do we try children in the appropriate environment? That is another and greater matter.

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