Coroners and Justice Bill

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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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