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Here I risk offending, without meaning to, the noble Lord, Lord Pannick, but on this proposal, as the noble Lord, Lord Hunt, said, there has been no consultation with the wide range of interested stakeholders who have been involved in the development of our proposals. In an area such as homicide, where reasonable people disagree so strongly, and where the timetable for change has been sufficient to offer every opportunity for the engagement of stakeholders, effecting such a radical change, as this would be, without due consultation, is unacceptable.

Lord Clinton-Davis: Is not the real truth that, whatever the time and whatever the circumstances, my noble friend would oppose any change along these lines? Would it not be more accurate to say exactly that than to say what he has just said? Why cannot he say, having listened to this debate, in which noble Lords all around the Chamber have expressed support for the amendment proposed by the noble and learned Lord, Lord Lloyd, that he will look at the debate and come back to it later on?

Lord Tunnicliffe: My Lords, I remind noble Lords of the statement in the Companion on the interruption of speeches. At paragraph 4.37, it says:

"A member of the House who is speaking may be interrupted with a brief question for clarification ... Lengthy or frequent interventions should not be made, even with the consent of the member speaking".

I hope that noble Lords will reflect on that before we have more interruptions that are neither brief nor clearly just for clarification.

Lord Bach: I come back to my noble friend's comment. Of course I welcome this debate, which is part of the wider debate that we should be having on the law of murder. I cannot but believe that, when we come to

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have that wider debate, the debate in this Chamber this afternoon will be like a textbook for it. It will certainly be considered important. This debate is part of a wider debate, without any doubt, but I do not think that I could have been much clearer in stressing why the Government disagree with the amendment. What it actually does is to abolish the mandatory life sentence once and for all. It is a radical measure-and, once it came in, there would be no turning back from it.

In conclusion, I return to the heart of the issue. As has been said:

"Either the mandatory sentence stays or it goes".

We do not think that this particular way of circumventing it is a solution to the problem. Those were, again, the words used by Professor Horder of the Law Commission in response to this amendment-and we agree.

Before finishing, I shall make two very small points on the amendment. I do not want to waste the House's time, but one part of the amendment refers to the Attorney-General's powers. She would have powers in any event, whether or not that was in the amendment. I know that the noble and learned Lord says that, but it is obviously there for the sake of completeness. There is a slightly greater problem with what she would be able to do in the event of a sentence being appealed against for being too lenient. She might not be able to challenge the extenuating circumstances finding, which would go to the heart of the non-life sentence, because that finding would be part of the verdict about which she has no concern at all, as part of her powers, rather than the sentence itself. I think that that point may be accepted around the House.

For the reasons that I have stated, we cannot support the amendment in the name of the noble and learned Lord.

6.15 pm

Lord Lloyd of Berwick: My Lords, we had a remarkable debate in Committee on this amendment, and have had an even more remarkable one this evening. I am grateful to the noble Lord for his reply. However, this is not an amendment to abolish the mandatory life sentence. I disagree, as he knows, with Professor Horder, when he says that it would rip,

It would do no such thing. It provides a limited exception to the mandatory life sentence, just like the existing limited exceptions of the partial defences of provocation and diminished responsibility.

I thank all those who have supported the amendment. I am particularly grateful for the psychiatric support of the noble Baroness, Lady Murphy, the philosophic support of the noble Baroness, Lady Warnock, and the theological support of the right reverend Prelate, and for having converted the noble Lord, Lord Stewartby. Perhaps the noble Lord might go and convert some of his fellow Back-Benchers, and we might then have a chance of winning this debate. In the mean time, I wish to take the opinion of the House.

6.17 pm

Division on Amendment 56

Contents 113; Not-Contents 155.

Amendment 56 disagreed.



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Division No. 2


CONTENTS

Addington, L. [Teller]
Alderdice, L.
Barker, B.
Bew, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brennan, L.
Broers, L.
Butler-Sloss, B.
Cameron of Dillington, L.
Campbell of Surbiton, B.
Carlile of Berriew, L.
Chidgey, L.
Chorley, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Condon, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Dear, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Elton, L.
Elystan-Morgan, L.
Emerton, B.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Finlay of Llandaff, B.
Forsyth of Drumlean, L.
Garden of Frognal, B.
Goodhart, L.
Greengross, B.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Haskins, L.
Howe of Idlicote, B.
Hylton, L.
James of Blackheath, L.
Jay of Ewelme, L.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Listowel, E.
Lloyd of Berwick, L. [Teller]
Low of Dalston, L.
Luce, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Manningham-Buller, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Monson, L.
Montgomery of Alamein, V.
Moonie, L.
Morris of Aberavon, L.
Murphy, B.
Neill of Bladen, L.
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Bengarve, B.
Onslow, E.
Pannick, L.
Prashar, B.
Ramsbotham, L.
Razzall, L.
Rennard, L.
Ripon and Leeds, Bp.
Rodgers of Quarry Bank, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Skidelsky, L.
Slim, V.
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Taverne, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tordoff, L.
Tugendhat, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Waverley, V.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Woolf, L.
Young of Hornsey, B.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Astor of Hever, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.


26 Oct 2009 : Column 1029

Browne of Belmont, L.
Campbell-Savours, L.
Clark of Windermere, L.
Colwyn, L.
Cope of Berkeley, L.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Desai, L.
Dixon-Smith, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fookes, B.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gardner of Parkes, B.
Garel-Jones, L.
Gavron, L.
Giddens, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Griffiths of Fforestfach, L.
Hanham, B.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Henley, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe, E.
Howell of Guildford, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kilclooney, L.
Kinnock, L.
Kinnock of Holyhead, B.
Knight of Collingtree, B.
Lea of Crondall, L.
Lipsey, L.
Luke, L.
McColl of Dulwich, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Montrose, D.
Morgan, L.
Morgan of Drefelin, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Neville-Jones, B.
Noakes, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Patel of Bradford, L.
Patten, L.
Pendry, L.
Perry of Southwark, B.
Peston, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Powell of Bayswater, L.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rawlings, B.
Rendell of Babergh, B.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Seccombe, B.
Selsdon, L.
Sewel, L.
Shaw of Northstead, L.
Sheldon, L.
Simon, V.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Strathclyde, L.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Tebbit, L.
Thornton, B.
Tombs, L.
Tomlinson, L.
Triesman, L.
Trumpington, B.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wakeham, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Wilcox, B.
Williams of Elvel, L.
Young of Norwood Green, L.
6.28 pm

Clause 46 : Persons suffering from diminished responsibility (England and Wales)

Amendment 57

Moved by Lord Hunt of Wirral

57: Clause 46, page 27, line 28, at end insert-



26 Oct 2009 : Column 1030

"(1ZA) A person ("D") who kills or is party to the killing of another is not to be convicted of murder if D was under the age of eighteen and his developmental immaturity-

(a) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(b) provides an explanation for D's acts and omissions in doing or being a party to the killing."

Lord Hunt of Wirral: My Lords, Amendments 57, 58 and 59 would add to Clause 46 another category of persons to whom the partial defence to murder of diminished responsibility should apply. That category is, in short, children or young persons under the age of 18. The reasoning behind this is straightforward. The partial defence of diminished responsibility is available under Clause 46 to a person who is suffering from a mental abnormality that arises from a recognised medical condition, which impaired his or her ability to act as one would expect a person to act without such an abnormality in a way that explains why the murder took place. For example, a 40 year-old man who had the mental capacity of 12 year-old child would be able to draw on the partial defence. The amendments try to address an anomaly. While the hypothetical 40 year-old would have a partial defence because he could not help but act as a 12 year-old, a child who was actually 12 years old but with no medical condition, who acted in the same way, would not have recourse to the same partial defence.

This is not an unreasonable thing to take into consideration. It is quite possible that a 12 year-old child may not, simply as a result of his age and developmental immaturity, have the capacity to understand his conduct in a way that we would expect of an adult. Therefore, the amendment does not simply provide a get-out-of-jail-free card for young people who have committed the appalling crime of homicide. They must still be able to show that the degree of their developmental immaturity was such that they could not without impairment fulfil the requirements of proposed new subsection (1A):

Lord Clinton-Davis: My Lords, is there in any legislation the provision for developmental immaturity? I would be very interested to hear about that.

Lord Hunt of Wirral: My Lords, I am unaware that there is any direct precedent for this amendment. However, we are seeking to probe and hear from the Government as to how they will deal with the circumstances that I have just outlined. I hope the noble Lord, Lord Clinton-Davis, understands that that is our approach.

The Earl of Listowel: My Lords, I beg the noble Lord's pardon, but are the Government themselves not introducing in this clause the defence of developmental immaturity?

Lord Hunt of Wirral: My Lords, I think the noble Earl has misunderstood.

The Earl of Listowel: My Lords, I have misunderstood; I apologise and withdraw what I said.



26 Oct 2009 : Column 1031

Lord Hunt of Wirral: My Lords, I agree with the noble Earl: it is quite difficult to get one's head around exactly what this amendment seeks to do. I suppose I am trying to emphasise that there should still be a high bar to overcome before the defence could be successfully deployed. Even if it was successful, noble Lords must remember that Clause 46 allows a partial, not a full, defence. The conviction is not overturned but reduced from murder to manslaughter. That is important because, as noble Lords well know, a conviction for murder attracts the mandatory life sentence, whereas a broader range of sentences-which may be more appropriate in the circumstances-are available for manslaughter.

These amendments were proposed by the Standing Committee for Youth Justice in an effort to give effect to the Law Commission's recommendation in its 2004 report, Partial Defences to Murder, which was itself designed to bring the criminal law into compliance with Article 40 of the United Nations Convention on the Rights of the Child. In Committee your Lordships gave these and other similar amendments a full and considered debate. I think considerable support was then voiced around the House for them. I therefore hope that the Minister and his colleagues have been able to reflect on these amendments over the summer and will give them a serious hearing. I beg to move.

Baroness Murphy: My Lords, I support this amendment. The problem is to do with so-called normal children. The noble Lord has already talked about the partial defence that is available to the mentally handicapped adult who is intellectually functioning, or who may have a developmental delay in other emotional areas as a result of learning disabilities, for example. The law provides for that, but developmental delays are quite frequently seen in perfectly normal children. Children all develop at different rates in different parts of their brains. Heavens, I could talk about the development of the medulla being at a different stage to that of the frontal lobe, and at a different stage to the parietal lobes, but I do not think that I need to. All noble Lords who have had children and adolescents around the house will know very well that there are different stages. It is normal for children to have different stages of developmental maturity at different ages in the course of growing up.

All the amendment seeks to do is to allow for children without obvious profound developmental delay or learning disabilities to be considered in respect of those areas where they may have very specific emotional or developmental problems. Really, it would allow them to be treated in the same way as adults. As the noble Lord, Lord Hunt, has said, this does nothing to lower the bar and, indeed, still allows a court to find murder in the right circumstances and diminished responsibility in others. This amendment would allow for a very small group of children and adolescents to be treated more appropriately, given that we have now given up the doli incapax provisions, and the difficulties that children now face before the courts.

The Earl of Listowel: My Lords, I have my name attached to the amendments, and I strongly support them. It is hard to follow the eloquent and pithy contribution from my noble friend, with all her experience in psychiatric matters. As vice-chair of the All-Party

26 Oct 2009 : Column 1032

Group for Children and Young People in Care and a trustee of a fostering agency, I am particularly concerned that children who have experienced trauma may not be recognised or caught by the system. We should treat all our children fairly and, in particular, take care to treat our neglected children fairly.

I will never forget hearing from a 20 year-old ex-offender-a young woman-about her experience of being removed from her children's home at the age of 14. She was told on the day of her removal that she was to be given another placement, having settled and become attached to where she was. She was then forcibly removed from her children's home. At the age of 20, when she spoke to parliamentarians in the House, she said that she dated her history of criminal activity from that experience. On another occasion I heard another young woman describing her experience in a children's home. It was as if she was describing a waiting room for prison. Children develop differently, as my noble friend has said. Neglected children can follow particularly tortuous lines of development. These amendments seek to recognise that. It is possible to be developmentally immature without having a recognised abnormality of mental functioning. The law needs to recognise this.

In April of this year, at a one-day legal conference organised by the Michael Sieff Foundation, Lord Justice Toulson, chairman of the Law Commission, described the omission of these amendments as "significant". He said:

"The inclusion of the phrase 'a recognised medical condition' in the definition of diminished responsibility would represent a tightening as well as a clarification of the defence, but to include that requirement while excluding developmental immaturity in the case of a young offender has consequences which I do not think could have been thought through. It produces the bizarre result that if a 25 year old killer has the developmental age of a 12 year old".

Here I end the quotation because I think we have already covered that point. The point here is that Lord Justice Toulson, the chairman of the Law Commission, in referring to the current clause, talks about,

and uses the term "bizarre" in describing the way that the commission's recommendations on this matter have been treated.

I strongly support the amendments and hope that the Minister may now agree to them. I have good reason to hope that he might, given the achievements for children, particularly vulnerable children, that he and his colleagues have been responsible for over the past 10 years. I look forward to his response.

Baroness Butler-Sloss: My Lords, I think we all feel horror at gangland killings by young people, but one has to put them to one side when discussing this amendment; one also has to remember that children of 10 are convicted of murder. Perhaps some children of that age should be convicted of murder, but others undoubtedly should not. To have a child of 10 detained for an indefinite life sentence is something that we ought to have in mind.

It is important that the emotional and physical immaturity of young people who kill should be taken into account. There is a lacuna in the law, which this

26 Oct 2009 : Column 1033

amendment deals with. As several people have said, why should you be able to pray that immaturity in aid if you are over 21 but not do so if you are 14? There seems to be something grossly unjust in that. I, too, support the amendment.

Lord Clinton-Davis: I am afraid I do not. I have a great deal of sympathy with the argument that is being adduced, but in my view the law has to be precise. The term "developmental immaturity" has no precedent, is not precise and ought to be rejected. The arguments that have been put forward invite us to visit the situation again, but that term has to be considered and revised. The one thing that I think about the law is that it has to be precise, but with the use of this term we are invited to amend the law in an imprecise way. I reject that proposition altogether.

Lord Thomas of Gresford: My Lords, my name is attached to this amendment. I remind your Lordships of what I said on the previous amendment: nothing could be more imprecise than the words that are used in the proposed Clause 48 on provocation, or indeed more imprecise than the concept of provocation in the law as it exists at the moment. It has been through the courts over and again in an attempt to derive some clarity for the concept, yet the Government stay with it. So I am not moved by the suggestion of the noble Lord, Lord Clinton-Davis, that "developmental immaturity" is an imprecise term. Certainly the Law Commission, after looking at the whole of the law of homicide, came to the conclusion that the term could be the basis of a partial defence, in its Partial Defences to Murder published in 2004.

It is not just developmental immaturity that is at issue. The partial defence does not come into play unless it is shown that that developmental immaturity substantially impaired the defendant's inability to do one or more of the things that are mentioned, as in the proposed diminished responsibility clause; provides an explanation for his acts or omissions; and, further, that it is a significant contributory factor in causing the defendant to carry out the conduct in question. There are all sorts of hoops to get through.

I remind your Lordships that, again, it being a partial defence, the jury do not get to consider it unless they are satisfied that the defendant has killed someone with the necessary intent to kill or to cause serious bodily injury. That is the precondition before they even look at the developmental immaturity that is referred to here. This is a perfectly correct and proper amendment in principle and we will support it from these Benches, notwithstanding the Division that has recently occurred.


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