Coroners and Justice Bill

This is another amendment prepared by my noble friend Lord Thomas of Gresford which I beg leave to move. I shall speak also to Amendments 153 and 158 and any consequential amendments flowing therefrom. The amendments would amend Clause 42(1), which amends Section 2(1) of the Homicide Act 1957, to allow a charge of murder to be reduced to manslaughter if the person who killed another was suffering from an abnormality of mental functioning which arose from developmental immaturity. The amendments would give effect to the Law Commission’s recommendation that for defendants under 18, developmental immaturity could be a possible basis for reducing murder to manslaughter. The age of criminal responsibility begins at 10, but there is a great deal of research showing that a child of 10 does not have the same reasoning processes as an adult. They may have—but they may well not have. Under the current proposals an adult with a learning difficulty who has the mental age of a child can plead diminished responsibility. On the other hand, a child without a medical condition but with developmental immaturity will not be able to plead diminished responsibility under the current proposals. These amendments would mean that if the child could show that the killing took place because he or she suffered from an abnormality of mental functioning that arose because of developmental immaturity and this substantially impaired the child’s ability to understand the nature of his or her conduct, to form a rational judgment or to exercise self-control, and this provides an explanation for the child’s actions, that could reduce a murder charge to manslaughter. Those would still be substantial hurdles to overcome and a successful plea or verdict would still result in a conviction of a very serious offence—manslaughter. In Committee in the Commons the Government said that this amendment should not be introduced because they said that they had not seen any evidence showing that it was necessary. They said, too, that one of the problems was that many children would raise this as a defence. Many children might raise it as a defence because it has merit both in law and in an analysis of children. I simply do not understand the logic of saying that because it might be a defence that will avail many people, possibly justly, we should not entertain it. The mere fact that this defence might be relied on but ultimately not succeed in other cases cannot justify the Government’s position. In its 2004 report, Partial Defences to Murder, the Law Commission recommended that the diminished responsibility partial defence should be available to a child or young person under 18 on the ground of developmental immaturity. These amendments would simply give effect to that report. There are many platitudes that one could use about children’s development. However, the scientific evidence—the evidence to which we should pay attention—seems to show that in the physiological development of their brains, children are markedly more impulsive. They are driven more by fear and gut reactions. They are more influenced by their circumstances, including what may be very adverse circumstances, and react much less rationally than typical adults. Further, their intellectual development is incomplete. They are still learning about the world and how it works. They do not have the practical experience of situations that adults have. Under-18s mature at different rates. Their ability to decide to engage in criminal activity, including committing murder, in the clear knowledge of the full implications and consequences of doing so, must be subject to the developmental level that the individual young person has reached. Knowing the difference between what is legal and illegal is not intrinsic to a child, and it is certainly not intrinsic to every child in the same way at the same rate of development. It needs to be learned. It is a lesson much harder learned by vulnerable children—those who have been neglected, those who have been abused, those who are less able to take logical account of the differentials in behaviour that at least many of us in this House recognise sometimes. The omission of developmental immaturity from Clause 42 is particularly material as a result of the abolition of the presumption of doli incapax. It means that any child over the age of 10 in this country is now to be held to understand the significance of their actions and that a partial defence to murder should only be available if a child meets the proposed conditions for a defence of diminished responsibility. The effect is wholly unjust. An adult of 40 with the emotional maturity of a 10 year-old will be able to plea diminished responsibility if they are diagnosed to have a recognised medical condition. On the other hand, a 10 year-old without such a recognised condition but suffering from developmental immaturity of a significant kind cannot succeed with the plea as their development has not been arrested. It is simply ongoing. It seems to us that this is a merited defence that will ensure that the law remains just for those under 18. I beg to move.