Coroners and Justice Bill

I am trying to say that where a child’s maturity is consistent with its chronological development and falls within the normal spectrum, we have not had any evidence to indicate that it causes difficulty in cases. Where a child suffers from a recognised abnormality or a condition which falls within the recognised list that all medical practitioners use, that enables consideration of whether advantage could be taken of the diminished responsibility provisions. These lists are probably the best known and most highly regarded of the accepted classificatory systems which together encompass the recognised physical, psychiatric and psychological conditions and which the Government expect will be used when considering whether a medical condition is recognised. The noble Baroness, Lady Murphy, is right in supposing that this kind of list will be relied on to determine whether something constitutes a recognised medical condition, and these together will encompass the recognised physical, psychiatric and psychological conditions. She need not worry that that term does not encompass all those things that she would wish it to do. 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 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 Commission’s recommendations and is intended to replace the existing terminology of the partial defence of diminished responsibility with a more helpful and, we hope, modern definition so that defences can be grounded in a valid medical diagnosis based on the accepted classificatory systems and so that it is possible to accommodate future developments in diagnostic practice. 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.