Coroners and Justice Bill

I have a number of amendments in this group. I will address developmental immaturity first, but before I do, I shall get in yet another side-swipe on the issue of diminished responsibility as a partial defence. Lawyers and psychiatrists—it is nearly always psychiatrists who appear in court—come from different planets. I think lawyers are from Mars and psychiatrists are from Venus, or something like that. The problem is that lawyers deal in definite contributions to causality, whereas we psychiatrists—I look for support from the other psychiatrist in this House who sits on the Liberal Democrat Benches—tend to deal in small proportions of causality in quite a different way, and we cannot be quite so definite about when something is caused or not. The difficulty with all these partial defences is that they use expert psychiatric evidence within contested trial hearings directed towards the jury determining the verdict. As we know, this is an unseemly process for many psychiatrists. It has led to a bunch of so-called expert witnesses who are not properly qualified forensic psychiatrists—the "rent a doc" brigade—who are there to be tapped into to produce a range of expert evidence that the jury has to make a decision about. It is an unseemly job, and psychiatrists are much better at giving evidence at the disposal phase when the jury has already made a decision about guilty or not guilty. This is why it is so important to have these other verdicts available to us. One of my psychiatrist colleagues said: "Actually, we don’t have all that much difficulty with diminished responsibility when somebody is really mad. It is the ones who aren’t mad that create the problems". I am sorry if I am not being politically correct, but the problem is that if you have someone with a rip-roaring psychosis, then everybody is agreed on the issue. The problem is when he does not. For all kinds of reasons that I shall come to later, people do not want to go for not guilty by reason of insanity. So, we are stuck with it. I recognise that, and therefore I am going to probe on a number of issues in the Bill. Psychiatrists have looked very carefully at the Bill. The Royal College of Psychiatrists was closely involved in the discussions that led to the changes that have come now as slight shifts in the diminished responsibility criteria. Some of my amendments—not the one on developmental immaturity—are probing amendments to get the thinking of the Government and the processes clearly established in the record. I particularly refer to Amendments 155, 157 and 162. I am grateful for the letter I have received from the Attorney-General and the opportunity I had to discuss the amendments with the noble Lord, Lord Bach. On developmental immaturity, I support the amendment that refers specifically to normal children. The Law Commission recommended that developmental immaturity should be added to the phrase, ""arose from a recognised medical condition"," as the noble and learned Lord, Lord Lloyd, mentioned, but people who have a recognised medical condition, particularly if it is a learning disability, already have a defence in that regard. The introduction of the additional basis for a finding of diminished responsibility of immaturity should be restricted to children who are immature as part of their normality and stage of development. To allow immaturity as a discrete and separate basis for arguing abnormality of mental functioning in an adult would be problematic. There would be disagreement about what constituted immaturity in adults, in both qualitative and quantitative terms, with the prospect of returning to unseemly discussions between experts. There is a case for allowing developmental immaturity. The current legislation is unfair in restricting the availability in murder cases of a defence of reduced responsibility to adults who are mentally abnormal. Children in adolescence may, as a result of their normal, less-than-fully-mature stage of development, be incapacitated in their thoughts, emotions and actions in ways that should properly reduce the level of responsibility for their actions. Biological factors such as the functioning of the frontal lobe of the brain play an important role in the development of self-control and of other abilities. The frontal lobes are involved in the individual’s ability to manage the large amount of information entering consciousness from many sources, in changing behaviour and in determining impulsivity. The frontal lobes are thought to mature at approximately 14 years of age. However, in a case involving a child under 14, it would still be open to the prosecution to seek to rebut evidence of poor frontal lobe development by arguing that the child had matured to a sufficient degree to be fairly convicted of murder. The jury should be trusted to reject implausible claims, as it is with other defences based on expert evidence. Offenders under the age of 18 commit a very small proportion—about 4 per cent—of homicides. It is hard to imagine that more than a small proportion of the even smaller number of children from this group who find themselves charged with murder will be in a strong position to claim that they were suffering from diminished responsibility solely because of developmental immaturity. Even those who succeed in persuading a jury of the merits of their claim—they are likely to be in the younger age group, who commit the fewest homicides—will still be convicted of a lesser degree of homicide and can be sentenced to anything up to and including life imprisonment. For the few cases that meet the criteria, the recommendation meets requirements of justice recognised as fundamental in civilised legal systems across the world. The amendment is necessary because the principle of doli incapax has been abandoned. We will return to that later—although the noble Earl, Lord Listowel, has spoken about it—when we debate Amendment 161. Amendments 155 and 157 are designed to explore the rationale for the new criteria of diminished responsibility. Overall, the concept of abnormal mental functioning is better than the current concept of abnormality of mind because it emphasises mental processes rather than a static idea. I strongly favour this adjustment because it offers a legislative route towards ensuring that conditions put forward in the defence come within accepted diagnostic criteria. I think that we will move towards the World Health Organisation’s ICD-10 criteria, or those specified by the American Psychiatric Association’s Diagnostic and Statistical Manual—we currently use number 4. That will avoid the idiosyncratic diagnoses that have been offered in the past by many experts. Many lawyers here will have sat through some very eccentric explanations of diminished responsibility. We would like to see the definition narrowed, and I accept that the new definition will ensure consistency. I was concerned that the word "medical" might rule out evidence of psychological conditions, and seek reassurance from the Government that it does not. I realise that to add "or psychological" would open up the concept too much and allow in all manner of conditions that might offer more in the way of explanation of the offence than valid partial exculpation. The phrase, ""substantially impaired D’s ability to do one or more of"," introduces a notion of relative incapacity consistent with the civil law, as expressed, for example, in the Mental Capacity Act. However, it adds a layer of complication to expert evidence, and the mere inability to do (a), (b) or (c) would be enough. By definition, if there is evidence that the defendant did not understand or form a rational judgment or exercise self-control, his relative incapacity is demonstrated. The argument in favour of incapacity is that any mental condition can then be described in terms of inferred disability expressed in medical terms. It is the criteria (a), (b) and (c) that cause problems: to understand the nature of D’s conduct; to form a rational judgment; to exercise self-control. Elements (a) and (b) are very restrictive in terms of the types of medical disability that are allowed. They seem to mirror the old McNaughton rules for insanity in being highly cognitive. This raises concerns because, although there is also the self-control element (c) available, (a) and (b) imply a narrowing of the defence. The decision in R v Byrne, the seminal case in diminished responsibility, which identified abnormality of mind as anything that the reasonable man would term abnormal, was far broader in its potential use for justice. I should like to understand what the Government intend by their specification of particular types of disability. It would be better to clarify which situations might underpin diminished responsibility. The fact that the great majority of defendants will have to rely on (c), the exercise of self-control, emphasises that the reform is one that narrows the defence. For example, many defendants with quite severe schizophrenia would fail to come within the terms of (a) and (b), as they do with the insanity defence at present. The law allows them to utilise the defence. I remind noble Lords that in 1843, the McNaughton rules on insanity, to which these are very similar in many ways, were drawn up after McNaughton was found not guilty by reason of insanity. The rules were created after the public outcry following the case, which even involved Queen Victoria. The criteria are so stiff that McNaughton himself, who took a pot shot at Robert Peel’s private secretary, would not have satisfied them. This appears to be going back towards very difficult cases of "not guilty by reason of insanity". With regard to (c)—self-control—although this does allow an aspect of Byrne back in, because that case allowed an "irresistible impulse", it may be argued by the Crown that it is only an irresistible impulse that reflects (c). The current proposal is very restrictive in cases where there is a determined, even planned, intention to kill. For example, a severely depressed woman may kill her children on the basis of a delusion that this world is such a terrible place that her children, whom she loves, would be better off no longer in it. She might still be able to judge whether her actions were legally right or wrong. Or a man may be paranoid and deluded about someone else, kill them in a planned way, based on delusions, yet still know that it is legally or even morally wrong to kill per se. Thus (a) and (b) would not be satisfied. Lack of self-control might also be very difficult to prove. A severely mentally ill person could be denied a psychiatric defence unless loss of control was clearly proven. I want to explore the Government’s thinking on that. The likely effect of the proposed reform will be to limit further the application of diminished responsibility. This will occur against a background of changing social attitudes, also affecting jurors, away from allowing partial exculpation—as evidenced by the substantial drop in the number of successful pleas of diminished responsibility in the past two decades. So Amendment 155 allows for mere distortion of thinking or perception as the basis for a successful plea of diminished responsibility where the defendant was able to exercise self-control. I turn now to causation in Amendment 157. The inclusion of the causation element is understandable, and in giving evidence under the current law, it is always necessary for an expert in effect to offer evidence about the connection between the abnormality of functioning and the act. However, connection or offering a narrative that explains the relationship between abnormality and the act allows for a broader approach and references explicitly to causes. It seems likely, therefore, that defence experts will be cross-examined beyond what science can offer in relation to causation. However, if cause is interpreted more loosely, the problem will not necessarily arise, but of course psychiatry cannot say with hand on heart what caused a killing per se. That said, the operation of diminished responsibility in both its current and proposed versions makes it inevitable that whatever language is used in statute, doctors will be asked to say what element, if any, of a defendant’s mental disorder contributed to the killing. Causation will be addressed in fact whatever the wording of the statute, but "causes" is too restrictive. Certainly I acknowledge that the abnormality of mental functioning need only be a cause of the killing since clearly it is only in extreme cases of severe mental disorder that a person’s actions are driven solely from within themselves and without any influence on their behaviour arising from the circumstances or the words and actions of others, including the victim. Thus, abnormality of mental functioning should surely be a contributory cause or a basis for understanding the offence, but be neither a necessary cause nor a sufficient cause of the killing. Amendment 157 proposes that nothing beyond the word "understanding" is required in the statute and that causation is too restrictive a term. Again, I want to probe what the Government think will be the outcome of the use of the defence. Finally, I know that many of the lawyers here will say that Amendment 162 is completely loopy because it is entirely unnecessary, and I have had the benefit of discussions with the noble Lord, Lord Bach, about it. Why is it necessary to give a partial defence of diminished responsibility to a charge of attempted murder when the whole point of the diminished responsibility plea is to move from murder to manslaughter, where a range of sentence options is already available? I accept that that is a very good point. I want to talk about what happens in practice, because although the offence of attempted murder in legal terms is thought of as a lesser offence than murder, in psychiatric terms it is actually often as severe because the risk that the individual poses is exactly the same as the risk of murder. In terms of preventing risk to others, the person often requires a rapid disposal from the courts to an appropriate place for treatment. The difficulties lie in persuading individuals charged with an offence that was not followed through to the completion of a murder but was an attempted murder to plead insanity. At this point the only defence—if they are going to be disposed of quickly by the court—is the defence of not guilty by reason of insanity. Getting people to plead insanity is very difficult indeed. Trying to persuade a patient is hard to do because it is one thing for someone to say, "I accept that I have diminished responsibility for this act, and please put forward that point", but quite another for them to say, "Yes, I am insane or was insane when I did it". Defendants do not like to have it charged. What happens in practice is that juries often bring in a guilty verdict and individuals are sent to prison where they languish while waiting for a psychiatric opinion. It can take three or four months for someone with a psychosis to get out of prison and into an appropriate special hospital or regional secure unit. While I accept that in legal terms this amendment puts forward an odd proposal, I would like to explore how a similar provision can be made for those charged with attempted murder.