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We are therefore quite sure that young people suffering from these conditions would in no way be excluded from running the diminished responsibility defence by absence of a developmental immaturity limb. On the other hand, were the developmental immaturity provision to be included, there is a risk that the defence would become too wide and permit potentially unmeritorious cases to succeed. Such a change would complicate and probably lengthen the trial without good reason in many cases where a defence of diminished responsibility should not be available as the defendant knows what they are doing and are able to function "normally".
We recognise that the level of maturity of defendants, even within so-called "normal" maturity, will vary. Some defendants will have lower levels of maturity for their age than others, but we do not consider that such developmental immaturity should of itself be sufficient grounds for reducing a murder conviction to manslaughter, which would set the threshold for partial defences too low. It should be available only where the killing was linked to an abnormality of mental functioning arising from a recognised medical condition. We are concerned that, should developmental immaturity be available as a basis for the partial defence, there would be clear potential for it to operate unacceptably and undesirably.
A teenager, in a fight with another teenager, who impulsively pulls the knife that he is carrying and stabs the other youth to death, could seek to argue the defence, even if there was nothing identifiably-to put it colloquially-"wrong" with them and they were not "abnormally" developmentally immature for their age but simply less mature than adults. We do not believe that there should be the possibility of this amounting to sufficient grounds to reduce the ensuing verdict from murder to manslaughter.
There is no issue of young people being denied access to the diminished responsibility partial defence or being disadvantaged with respect to adults. Wherever the defendant, young person or adult suffers from an abnormality of mental functioning arising from a recognised medical condition, it will be open to them to argue that this substantially impaired their ability to understand the nature of their conduct, form a rational judgment, exercise self-control or a combination of the three. If the jury agrees and finds that impairment of these abilities caused or was a significant contributory factor in the defendant's carrying out the killing, the defence will succeed. We believe that it is right that the partial defence should apply only in these circumstances. I hope that that explanation will assist.
Amendment 153 would effectively negate one of the central changes that we are seeking to make to the partial defence of diminished responsibility by removing the requirement that the defendant's abnormality of mental functioning arose from a recognised medical condition. The requirement that the defendant's abnormality of functioning must have arisen from a recognised medical condition follows the Law
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The concept of "recognised medical condition" represents in our view a much more helpful, up-to-date formulation than the current law and it has found widespread support. We are confident that it will prove to be a much more helpful term than the current phrase "abnormality of mind", an expression that has no meaning in current medical terminology-we have heard that explored extensively this evening.
There is a risk that if the requirement for a recognised medical condition is removed it will allow the partial defence to be raised both by anyone who considers themselves mentally abnormal, even where there is no medical basis whatever for the claim, and by those whose abnormality of mental functioning results from actions on their part, such as consuming alcohol or illegal drugs. The partial defence should not succeed in such circumstances. I can assure your Lordships that the term "recognised medical condition" is sufficiently flexible to accommodate any changes in the consensus about whether a particular set of symptoms constitutes an actual condition. The accepted classificatory systems which cover recognised physical, psychiatric and psychological condition systems will be used when seeking to establish that the defendant was suffering from a recognised medical condition. It will also be possible, however, in relation to a condition not yet included in such a list for the defence to call on evidence from a recognised specialist who has had their work peer-reviewed or validated in some other way. A jury would then decide how to treat this evidence after appropriate direction had been given by the judge. This is important because it allows the law to keep abreast of medical developments in this area, which we have not been able to do in the past.
As to Amendment 155, the noble Baroness, Lady Murphy, would extend the scope of what must be substantially impaired by the abnormality of mental functioning arising from a recognised medical condition to include the defendant's perception of reality. The Government do not believe this is necessary or appropriate, as in most cases where the defendant's perception of reality is substantially impaired, the defendant's ability to understand the nature of his conduct or to form a rational judgment will also be substantially impaired. That part of the test for diminished responsibility would already have been met and there would be no need for the amendment. In the unlikely event of cases arising where a defendant's perception of reality is substantially impaired but his ability to understand the nature of his conduct, form a rational judgment and exercise self-control are not, we do not consider that he should be able to benefit from the partial defence as these issues go right to the heart of the case for reduced responsibility in homicide cases where there is an abnormality of mental function.
As to Amendments 156 and 157, they would appear to be aimed at removing the requirement that a defendant's abnormality of mental functioning must have been at least a significant contributing factor in causing him to act as he did and I am happy to explain that as the noble Baroness invited me to. The Government consider it is necessary to spell out what connection between the abnormality of mental functioning and the killing is required for the partial defence to succeed. Otherwise, random coincidence would suffice. For this reason, Clause 42 provides that the abnormality of mental functioning must provide an explanation for the killing in the sense that it must have been at least a significant contributing factor in causing the defendant to act as he did. It need not be the only cause or even the most important factor in causing the behaviour but it must be more than merely a trivial factor. We believe this gets the balance about right.
The effect of Amendment 156 would be to leave only the requirement that the abnormality of mental functioning must provide an explanation for the defendant's acts and omissions in doing or being party to the killing. We do not consider that this provides enough clarity about what is required. The defence could easily end up being either too easy or too difficult to access, depending on the interpretation of the courts, whether by requiring a full explanation so that it has to be the main cause or by allowing any explanation, however obscure, to suffice.
I am saddened that the noble Baroness should have described her Amendment 162 in such deprecating terms. I am sure nobody would have addressed her in such an unkind way. Amendment 162 would extend the ambit of the partial defence of diminished responsibility so that it applies to attempted murder. I understand what she says about the dilemma that many people are in with regard to the diagnostic assessment of a person's condition. The whole concept of diminished responsibility, however, works as a partial defence to murder because of the availability of the alternative verdict of manslaughter. As the noble Baroness is aware, no such alternative is available in the case of attempted murder. It would in effect therefore be a full defence leading to an acquittal. I know that is not what the noble Baroness would want to see.
The verdict of manslaughter serves a particular function in relation to homicide in that it allows the mandatory life sentence to be avoided. The same considerations do not apply in relation to other offences where mitigating factors can already be prayed in aid at the point of sentencing. I hope the noble Baroness will find that, albeit I am a lawyer, I still belong to Venus.
For these reasons, I hope the noble Lords, Lord Alderdice, Lord Carlile, and Lord Kingsland, the noble Earl, Lord Listowel, and the noble Baroness, Lady Murphy, will find that the Government's reasoning on this is sound and that the noble Lord, Lord Carlile. will be content to withdraw his amendment.
Lord Carlile of Berriew: It falls to me as the person who moved the amendment to thank everyone who has spoken in this interesting debate on this congeries of amendments, involving all kinds of issues. I am
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Lord Jay of Ewelme: My Lords, I am very glad to be able to introduce this short debate this evening, and particularly glad that it has elicited two maiden speeches-from the right reverend Prelate the Bishop of Wakefield and the Minister. I greatly look forward to hearing both speeches.
It is nearly four years since heads of state and government, at Canadian instigation, adopted the doctrine of responsibility to protect, or R2P in the jargon, at the 2005 United Nations World Summit. Behind that jargon lies a principle of huge importance: a pledge by world leaders to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We need only to recall for a moment some of the atrocities of recent years to realise the difference that this doctrine, had it been in effect, might have made-on the massacres in Rwanda, which showed that the machete is as deadly a weapon of mass destruction as the sophisticated weaponry of the West; the civil war in Sudan; the atrocities in Darfur; and the sustained misgovernment in Zimbabwe. There are others, and in other parts of the world.
The doctrine of responsibility to protect is thus important, necessary and potentially far reaching, with the possibility of making a huge and positive impact on many of the world's most vulnerable people. R2P has also, alas, been contentious. The Europeans have, on the whole, been enthusiastic, though not always at one. The United States, scarred by the intervention in Iraq, has feared that it may lead to pressure for similar adventures elsewhere. Many developing countries fear the opposite: that R2P may instead be used to justify such adventures. The Russians and the Chinese have seen it as leading to an unacceptable intervention in the affairs of other states. So, shamefully, little has happened to put the doctrine into effect.
Fortunately, the new UN Secretary-General Ban Ki-moon, has recognised the need for action and, on the basis of work by his special representative, Ed Luck, has produced a report to the UN General Assembly that will, I understand, be debated next week. This provides a real opportunity for the UN to breathe life into the doctrine of R2P; and for the Government to use their undoubted influence to ensure this happens at next week's debate and beyond. The UN Secretary-General's report makes it clear that R2P is not and should not be seen as some neo-colonialist assault by the developed countries on the sovereignty of others. It should be seen for what it is: a recognition by the international community as a whole of responsibility to do all it can to prevent atrocities in future.
The Secretary-General set out a three-pillar approach for putting the doctrine into practice: first, that states themselves-this is a hugely important point-have the primary responsibility for protecting their populations from genocide, war crimes, ethnic cleansing and crimes against humanity; secondly, that the international community has the responsibility to help them do so, by encouragement, by aid and by capacity building, and to focus in particular on countries which are under stress, and before conflicts and crises break out; and, thirdly, only where a state is "manifestly failing" to protect its population, the international community has the responsibility to take timely and decisive action to prevent atrocities; such action may range from bilateral and regional pressure on recalcitrant states through sanctions to-if all else fails-coercive measures under Chapter VII of the UN Charter, but always with UN Security Council authorisation. Responsibility, in other words, is on all of us to protect the vulnerable.
I have mentioned past atrocities that the doctrine of responsibility to protect might have averted, but the key now is to anticipate and prevent future crises. Some of these are already too clearly on the horizon. Let us for a moment consider not Darfur, which rightly gets the world's attention, but Sudan and the growing tensions between north and south, which, wrongly, do not. As part of the comprehensive peace agreement between north and south that ended one of Africa's bloodiest civil wars, the south will hold a referendum in two years' time on whether to secede. It is almost certain that it will vote to do so. It is possible, perhaps probable, that the north will try to prevent it. The result could well be yet another catastrophic civil war.
I was in south Sudan a few months ago for the medical charity I chair, Merlin-an interest I declare this evening. I saw how fragile is the recovery from the civil war. I saw, too, how, within the south, weak government is leading even now to local conflict, exacerbated by incursions from across the border. If to this already explosive mixture is added a civil war between north and south, there will be a massive humanitarian disaster.
The point is that we know all this now; we do not need to wait until disaster happens to try, too late, to stop it. Early warning of crises, as the Secretary-General's report makes clear, is an essential element in putting R2P into effect, so that the international community as a whole-neighbouring states, regional organisations, the developed world-recognises its responsibility to act. There could be no clearer example than Sudan of the need to work hard now to put that doctrine into effect.
Against that background, I ask the Minister to ensure that putting the doctrine of responsibility to protect into effect gets to the top of our foreign policy agenda, with the departments concerned, especially the Foreign and Commonwealth Office, the Department for International Development and the Ministry of Defence, working closely together so that the tools of our foreign policy-diplomacy, economic aid and our peacekeeping forces-are properly co-ordinated. I am not one of those who advocates the reintegration of the FCO and DfID, but I believe that there is a need for and scope for much closer co-operation between the departments and, in particular, between the instruments of our foreign policy that they control. I ask the Government to look again, as a number of Members of your Lordships' House have already urged, at the misguided cuts in our conflict prevention budget.
In addition, I suggest that we work to ensure the UN General Assembly reconfirms R2P at its meeting next week and agrees on the urgent need to put it into effect; that we make the doctrine a central plank of our foreign policy dialogue with the Obama Administration; that we work within the European Union, for which the Minister is uniquely well placed, and in particular with the Swedish presidency that takes office tomorrow, to put the doctrine at the top of the EU's agenda too; that we work equally hard-I hope that I am not pre-empting here the speech of the noble Lord, Lord Howell-to put responsibility to protect at the top of the Commonwealth's agenda-no issue plays better than this to the Commonwealth's unique strengths; that we work with the Canadians, as instigators of the doctrine, and as G8 hosts next year, to put the doctrine high the G8 agenda; and that we build up a dialogue on responsibility to protect with the African Union, the charter of which includes the important and welcome principle of non-indifference to grave crimes committed within African Union member states.
Speeches about Britain's foreign policy regularly vaunt the influence we can bring to bear through the network of groupings to which we belong. I have drafted many such speeches myself. Here is an opportunity to show what we mean. Finally, Britain's commitment to implementing this doctrine should be a criterion
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Lord Parekh: My Lords, I thank the noble Lord, Lord Jay of Ewelme, for securing and introducing the debate. I extend a particularly warm welcome to my noble friend Lady Kinnock of Holyhead. She brings to this House great experience, wisdom and courage as well as a fine record of commitment to the cause of justice.
I endorse the United Nations report on the responsibility to protect. It identifies four major evils and tries to tell us how to anticipate and deal with them. These evils are genocide, war crimes, ethnic cleansing and crimes against humanity. I have nothing against the doctrine of responsibility to protect. In fact, I endorse it wholeheartedly. However, as the document is formulated, there are important gaps. I will briefly highlight five of them, and hope that the Minister will feed them into the appropriate channels.
First, those four evils overlap. It is not easy, for example, to distinguish between genocide and crimes against humanity or between genocide and war crimes. Equally importantly, these evils arise differently. Some arise because the state is evil. Others arise because the state has collapsed. In one case, the state is responsible, in the other, the absence of the state is responsible. These two situations need to be distinguished because they call for two kinds of responses. The United Nations document tends to homogenise them and fails to appreciate the need for different strategies.
Secondly, we need to evolve a global consensus on what obligations and responsibilities the outside world has. We tend to assume that the West, or the world at large, has the responsibility to intervene in situations of this kind. There are major powers that take a different view because they have suffered at the hands of the West's doctrine of intervention. China, for example, places great responsibility on the doctrine of sovereignty and does not think that it is its business to interfere when evils of this kind occur. The Chinese have made that very clear in their official policy documents. To some extent, India has tended to take this view as well, because it does not want outside powers to interfere in Kashmir or with lots of other internal problems.
The United Nations document makes the mistaken assumption that there is already a universal consensus on intervening in situations of this kind. That is arrogant and presumptuous. We must develop a global consensus by encouraging a dialogue between the western and Chinese points of view. Both make important points. Unless we do so, we will be working at cross purposes.
The third point that needs some attention is the document's total absence of mention of the need to restructure the United Nations. The United Nations as it is constituted, its structure and procedures, reflect the world of the late 1940s. It is dominated by the Security Council, where five members have the right of veto. The United Nations is seen as just another stage for its members to pursue their national interests. It
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Fourthly, in situations of the four evils that we talked about, military intervention sometimes becomes necessary. No one can deny that. But military intervention cannot be the first course of action. When it is undertaken, it needs to be guided by an appropriate ethics, which is absent. There should be clear guiding principles as to when it should be undertaken to ensure consistency in international action. It should be authorised by the United Nations and well judged, because military intervention works in certain situations and not in others. It would not work in Myanmar or Burma today and it would not have worked against Zaire under Mobutu. When the legality of military intervention is in doubt, as it was in the case of Iraq, we should make it a point of law to refer to the International Court of Justice, which would have helped us greatly in the case of Iraq. The purpose of military intervention should be not to run the country or discipline the natives and sort them out but rather to restore normalcy and hope that over time the country, now handed over to its citizens, will be able to manage its own affairs.
My fifth and final point is to do with the need to explore non-military forms of intervention. We have got into a binary opposition: either we abstain and do nothing, or we move in with armed forces. Is there no other way; no middle space that we should be exploring? I should have thought that there are half a dozen ways that we could move in such situations. Countries involved in these four evils could be expelled from international bodies, or recognition given to them in international law can be withdrawn temporarily. We could involve other agencies in civil society-for example, the churches, which wield enormous power. I am struck by the fact that the Buddhist monks endorsed the murder of Pol Pot or that the Vatican itself stayed quiet in relation to Rwanda.
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