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Lord Bridges: My Lords, I am grateful to all those who have spoken and to the noble Lord, Lord McIntosh, for having given a considered reply. I emphasise again that I do not seek to move a step towards regulation of the press. This is a milestone to indicate an area where not just the press but no one should stray. I believe that it is necessary to do that. I regard it as a matter of principle. I am sure that the many problems which the noble Lord, Lord McIntosh, foresaw if we accept the amendment could be sorted out by careful consideration and production of a further amendment at Third Reading if the Government wish to do so.

However, this is a matter of principle for me and I seek the opinion of the House.

4.5 p.m.

On Question, Whether the said amendment (No. 80) shall be agreed to?

Their Lordships divided: Contents, 55; Not-Contents, 82.

Division No. 1

CONTENTS
Ackner, L.
Ailesbury, M.
Alexander of Tunis, E.
Alton of Liverpool, L.
Ampthill, L.
Braybrooke, L.
Bridges, L. [Teller.]
Brightman, L.
Charteris of Amisfield, L.
Chorley, L.
Craigavon, V.
Dearing, L.
Dowding, L.
Ellenborough, L.
Exmouth, V.
Gardner of Parkes, B.
Haddington, E.
Halsbury, E.
Hayhoe, L.
Hereford, Bp.
Hooson, L.
Hylton, L.
Hylton-Foster, B.
Lane, L.
Leathers, V.
Leigh, L.
Macleod of Borve, B.
Marlesford, L.
Milverton, L.
Monckton of Brenchley, V.
Monson, L. [Teller.]
Montagu of Beaulieu, L.
Moyne, L.
Nathan, L.
Northbourne, L.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Perry of Southwark, B.
Rees, L.
Renton, L.
Roll of Ipsden, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Strathcarron, L.
Strathcona and Mount Royal, L.
Swansea, L.
Swinfen, L.
Tenby, V.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Wharton, B.
Wilberforce, L.

NOT-CONTENTS
Acton, L.
Allen of Abbeydale, L.
Archer of Sandwell, L.
Barnett, L.
Bassam of Brighton, L.
Blackstone, B.
Borrie, L.
Brooke of Alverthorpe, L.
Bruce of Donington, L.
Burlison, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
David, B.
Davies of Oldham, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elis-Thomas, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gladwin of Clee, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Henderson of Brompton, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Jay of Paddington, B.
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
Kennet, L.
Kilbracken, L.
Lockwood, B.
Longford, E.
McCarthy, L.
McIntosh of Haringey, L. [Teller.]
Mallalieu, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Nelson, E.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L. [Lord Privy Seal.]
Simon, V.
Stallard, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Thomas of Macclesfield, L.
Turner of Camden, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

19 Mar 1998 : Column 829

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

4.14 p.m.

Lord Goodhart moved Amendment No. 81:

Page 22, line 3, 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 his action was seriously wrong.").

The noble Lord said: My Lords, in the absence of my noble friend Lord McNally, who is unwell, I rise to move this amendment.

19 Mar 1998 : Column 830

On this occasion we return to the subject of doli incapax, or, as Clause 27 of the Bill slightly more comprehensively puts it,

"The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence".

I accept, as do my noble friends on these Benches, that the present rule is, as it stands, unjustified. It should not be necessary for the prosecution to have to prove as part of its case that a 13 year-old child, who may by that time be a professional burglar, as some are, knows that breaking into someone else's house and stealing cash and jewellery is wrong. However, we seek not to abolish the rule, but to modify it.

Children develop a concept of right and wrong very early. You learn at a very young age that it is wrong to throw your porridge on the floor if you do not want to eat it. You learn that it is wrong to grab your little sister's favourite toy and make her cry. But what does not come until much later is the concept of criminality; namely, the difference between doing things which are naughty and for which you will be punished (it is to be hoped) by a parent, and doing things which are seriously wrong and liable to punishment by a court. I certainly do not believe that all children understand the concept of criminality by the age of 10.

By current international standards, 10 is a very low age for criminal responsibility. Most other European countries have an age of criminal responsibility of at least, at the lowest, 12; and of the significant European countries, ignoring one or two mini-states such as Malta, only the United Kingdom, the Netherlands and Switzerland have an age of responsibility of less than 12. I am of course aware that the age of responsibility in Scotland is eight, which is not something of which I approve. However, I also recognise that Scotland has the highly respected system of children's panels, which draws some of the sting from a very low age of criminal responsibility.

If we are to retain an age of criminal responsibility as low as 10, what is needed is an intermediate stage. We should not jump straight from no criminal responsibility at the age of nine to full responsibility at the age of 10. We need to protect 10 or 11 year-olds who do not understand that what they are doing is seriously wrong. We should do so by allowing the defence to raise and prove, on the balance of probabilities, that the child in question did not have the capacity to understand that what he or she was doing was seriously wrong.

In Committee, the noble Lord, Lord Williams of Mostyn, opposed this amendment because, as he said,

"we need to deal with intervention, rehabilitation and beginning to assist the child".--[Official Report, 12/2/98; col. 1324.]

But if the defence of lack of understanding succeeds, it does not, and should not, mean that the child walks out of the court and nothing is done about its behaviour. What it should mean is that the child should be dealt with by a care order or a supervision order made by a family proceedings court, and that that child should not be treated as a criminal. The noble Lord also said that the more warped the child's moral standards, the easier it would be to raise the defence of lack of capacity,

19 Mar 1998 : Column 831

quoting from the noble and learned Lord, Lord Ackner, who was himself quoting from an article written many years ago by Professor Glanville Williams.

However, I do not believe that that is the case. A child with warped moral standards is likely to come from a family which is itself in trouble with the law. Whatever its understanding of right and wrong, it is certain that a child with that background is likely to understand the concept of criminality earlier than most children. The child this amendment seeks to protect is not the child with warped moral standards; it is the slow child, the silly child, the child who tags along with older children on what he thinks is a prank but what is in fact something much more serious. It is for that reason that I believe this amendment would improve the Bill as regards the protection of children of 10 and 11 years old who will not be adequately protected if the existing law of doli incapax is removed and nothing put in its place. I beg to move.

Baroness Mallalieu: My Lords, I support the amendment moved by the noble Lord, Lord Goodhart, and hope that the Minister will not lightly dismiss the concerns of many who practise at the criminal bar about the abolition of this rule. I believe that most people accept that the application of the rule is unsatisfactory and has in the past led to youngsters who should have been prosecuted not being prosecuted. We all accept that reform is necessary, but the present rule provides a safeguard. I am concerned that if all we do is to abolish it we shall, in a classic manner, be throwing out the baby with the bath water.

The present rule works as a safeguard against the conviction of a child who genuinely does not know that what he or she has done is seriously wrong. It offends me--and, I suspect, other noble Lords--that someone in that position should be the subject of a criminal conviction in our courts, particularly given the age with which we are concerned of up to 13.

The present rule works as a safeguard in two ways. First, when the prosecuting authorities have to decide whether or not to proceed, someone has to look at the evidence and consider whether the child did or did not have the necessary knowledge and whether that could be proved by the Crown. If it is decided that there is evidence and the case goes ahead, there is a second stage at which the safeguard applies during the trial when the defence can raise the issue, call evidence and obtain a "not guilty" verdict if the Crown are unable to establish that the child did know. To abolish that rule without any replacement would seem to me to remove all safeguards. I should be grateful if the Minister will tell us what safeguards there will be if he does not accept the amendment.

The amendment leaves a means by which the defence, if they are able to put convincing evidence before the court, can ensure that such a conviction does not take place. Not all defendants, particularly those in the age bracket of 10 to 13, are streetwise, educated young

19 Mar 1998 : Column 832

criminals. A wide variety of people come before our courts. It is sometimes said--perhaps not seriously, but one has only to look at the list outside the Old Bailey to see how true it is--that a court list consists of a judge with an English name trying people with foreign names. It is not just people who are slow-witted or backward at that age; our courts are, unhappily, also full of people who have been in this country for a very limited time. For example, in the past year or so I am aware of a case where a child from Somalia, who had recently come here as a refugee, had known nothing but civil war and had received no formal education, was tried for rape. There are also cases of youngsters who have recently come from the backstreets of Kingston, Jamaica, who find themselves before our courts. Those children cannot be judged by the standards of a child who has been through our English education system and grown up in our society.

I hope the Minister will accept that the conviction of a child who genuinely does not know that his actions are wrong cannot be morally justified. I know that he is sympathetic on all matters concerned with juvenile offenders and that his aim would be to ensure that someone in this position received assistance. I hope that if this rule is to go, as is intended by this legislation, and nothing is to replace it, we can at the very least be assured that those in the Crown Prosecution Service who decide whether or not to bring these prosecutions will continue to look rigorously at every case involving a child of this age to see whether it is really in the interests of justice that the full procedure of the criminal law should apply.

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