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Lord Campbell of Alloway: My Lords, I speak with deference and considerable respect, but on this occasion I do not believe that the noble Baroness, Lady Mallalieu, has got it quite right. The noble Baroness has vast experience in this sphere. In this day and age this presumption makes no sense when squared against the annals of the kinds of serious criminal conduct committed by those who are of the age where the presumption applies. The concern, as put by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Goodhart, is understood: if the child did not know that what he was doing was seriously wrong, he ought not to stand trial. However, I am not sure that that is the right way of dealing with this issue. I shall be interested to hear what the noble Lord, Lord Williams of Mostyn, has to say about it.

The reason I am not sure is that most crimes involve a relevant element of intention which has to be proved by the Crown beyond all reasonable doubt. If for some reason--and some examples have been given--the child really did not know that what he was doing was seriously wrong, it is open to the court or the jury to conclude that he had not, beyond all reasonable doubt, that intention. Even if it is shown that the child had that intention, the circumstances, the fact that it is a child and all other factors will be taken into account in mitigation. Courts are very reluctant to deal harshly with children.

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It seems to me that the clause as it stands is a sensible and brave contribution relevant to the needs of reducing crime committed by these very people, often in gangs and with severe ruthlessness. As presently advised, I shall oppose the amendment, but I shall be interested to hear the reply.

Lord Northbourne: My Lords, I too am inclined to oppose the amendment and to argue with the noble Baroness, Lady Mallalieu. If a child of 10 or 11 really does not know that a serious offence is wrong, it is important that that child should learn that it is wrong. To unconditionally discharge the child will not help him. It is much better that the courts should take the necessary action to ensure that the child is taken into care or given some other help so that he can learn that what he has done is wrong before he commits a more serious offence. For example, in the case of taking away and driving a car, the child should know that it is wrong before he does it again and kills someone.

Lord Judd: My Lords, like others, I need no convincing that my noble friend the Minister is on the side of enlightenment, compassion and concern in the administration of justice. He must therefore find this part of the Bill very difficult to defend.

This issue is a good illustration of the way in which law is often drafted by decent, responsible people who have had the benefit of a good education and a good family background and cannot conceive of the reality of the background from which some of the people who end up in court have come. As a constituency Member of the other place--which I was for 13 years--in the course of my casework I repeatedly came up against the most disturbing and horrific family situations in which it would have been quite amazing if a young person had reached the age of 10, 11, 12 or 13 with any clear sense of what was right and wrong. It is in that sense that the noble Lord, Lord Goodhart, is standing for decency in the law in saying that we must accept and face that reality and make sure that the position of young people coming from such a background is properly defended.

The other observation which I must make in this context--some of those who share my anxieties about this part of the Bill may not endorse my argument--is that there is a deeper issue which concerns me in regard to this part of the Bill. In the context of a rather materialistic society, I hope that we are not moving into an over-punitive approach towards the administration of justice. It seems to me that the biggest challenge--we will no doubt return to this argument on other elements of the Bill--in the administration of justice is always rehabilitation; that is, how we win the offender back to full constructive citizenship. That should be our primary concern in a civilised society.

What worries me is not what the intention was in the drafting of the Bill, but that the effect of this part of it plays to a social attitude which wants to pile all the blame onto the shoulders of the young child who is in court; that it fails to accept the collective social responsibility for the situation in which the child finds itself. The child may come from an environment of

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appalling schools, appalling housing; media which plays to sensationalism and violence and parents who had no chance to develop their sense of responsible parenthood in their education, upbringing and environment.

If one takes into account all those wider challenges of the reality of the age in which we are living, this part of the Bill is not right. I hope therefore that the Minister--for whom I have tremendous respect, not only politically, but personally--will find a way when responding to say that, even if he cannot accept Amendment No. 81 today, he will look at the case that is being made; take it away and talk to his colleagues to see how at a later stage of the Bill he can come back and meet the genuine and widespread anxieties of this House.

4.30 p.m.

Earl Russell: My Lords, F.W. Maitland, who is perhaps still our greatest ever legal historian, once wrote an article under the title, The Early History of Malice Aforethought. But Amendment No. 81 is concerned rather with the pre-history of malice aforethought. Malice aforethought--mens rea--as far back as criminal records go, has been just about the central constituent idea of criminal responsibility. But that guilty intent is made up of several elements. It is made up of rote learning, of knowledge and imagination. One cannot necessarily assume that all parts of those constituent elements are necessarily acquired at the same moment, which is why the phrase, the "pre-history" of malice aforethought is relevant.

We can take, for example, children who pull the wings off butterflies; I have known such children among my school contemporaries. They know perfectly well that what they do is wrong in the sense that they know that mummy will be cross; but they do not have any conception at all of the sort of pain and horror that they may be creating.

The noble Lord, Lord Northbourne, said rightly that a child in that situation must be helped to learn. That is the centre of the point. But in moving the amendment my noble friend Lord Goodhart said that there is nothing about the carrying of this amendment which would in any way impede that process. Indeed, it may help it, for the full panoply of the criminal law is not necessarily the best way to help a child to learn.

I will take one single case, though it is not in any sense a criminal case, which perhaps pinpoints that mixture of fantasy and reality which these intermediate stages of childhood may involve. I am told--though I do not answer for the truth of it--that the youngest child ever to give birth was a Peruvian girl aged nine. She was offered the baby to hold and pushed it away and asked for her doll. It is that mixture of reality and fantasy which I should like to see protected by this amendment.

Lord Ackner: My Lords, one should bear in mind what a narrow subject we are dealing with. We are dealing with the question of the abolition of an out-of-date presumption and the sole question is: should the presumption be tempered so that part of it remains?

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What is being overlooked by some is that we are not concerned with retributive punishment; that will not be applied in the cases with which we are dealing because the Children and Young Persons Act 1933, Section 44(1), provides that,

    "Every court in dealing with a child or young person ... shall have regard to the welfare of the child or young person".

That is why in Committee I submitted that there was wisdom in what Professor Glanville Williams said in 1954, that the presumption was out of date:

    "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".

Lord Thomas of Gresford: My Lords, on re-reading what was said at Committee stage and listening to your Lordships today, it occurs to me that there is a general consensus on all sides of the House. Regardless of whether those who have spoken are for or against the amendment, everybody accepts that where a child of the ages about which we are talking has not developed a moral sense and does not appreciate that what he or she is doing is seriously wrong, then the proper way of dealing with the child is rehabilitation, redemption and so forth.

The noble and learned Lord, Lord Ackner, said that we are dealing with an out-of-date presumption. We are actually dealing with an out-of-date system for dealing with offenders of this age. If one goes to Scotland--reference has been made to the age of responsibility in Scotland being as low as eight--the Youth Panel system deals with young children in an entirely different way. It just so happens that in the Labour Government of 1966 to 1970 there was a division about the way in which young children should be treated. In Scotland the Youth Panel was implemented; in England and Wales, due to the intervention of the Magistrates' Association and the Justices' Clerks' Society which at that time made strong representations, the old system of a judicial process of proving a charge and of punishment was maintained for ourselves.

In Scotland, if a child is brought before the Youth Panel, that child will be dealt with by the justices, the magistrates and the members of the panel altogether. The child will be present, as will the parents, while the evidence is gone into; while the mitigating circumstances are discussed; while the reports are read. But, more particularly, the child is there while the members of the Youth Panel discuss among themselves and with the parents, in the presence of the child, what is the best way of bringing about redemption and rehabilitation. What we are urging from these Benches in later amendments is that we should seriously consider adopting that kind of regime in England and Wales. However, until we get there, and while we are still using the system we have at the present time, which I suggest is an out-of-date system, the amendment put forward by my noble friend has a great deal of validity.

It offends us, when we are considering the proving of a criminal offence and the punishment for that offence--which is the way in which things are framed at the

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moment--for a child to be castigated as a criminal at the age of 10 when the premise of my noble friend's amendment is that the child does not fully appreciate or understand what it has done. Until we change the system in England and Wales, the amendment proposed by my noble friend has a great deal of validity, and I am very happy to support it.

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