Coroners and Justice Bill

I move Amendment 161 with a degree of pessimism. We have already referred to the reversed provisions of doli incapax today, and I will be very brief. I was hoping that this would be debated before the other amendment on children, but I throw it in anyway and offer it for discussion. This amendment reverses the Crime and Disorder Act 1998 which, in turn, reversed the previous law that children under the age of 10 could not be held criminally responsible for a crime. The law with respect to children who kill is very different in England from that of most other European countries. It is not just that the age of criminal responsibility, at 10 years old, is exceptionally low, but also that the doctrine of doli incapax, or being incapable of crime, was abolished in 1998. Moreover, the distinction between manslaughter and murder means that those convicted of the latter are subject to a mandatory penalty of indefinite detention, with its duration assessed by the Home Secretary and not by the courts or the Parole Board. This means that children who have not yet reached puberty are treated as if they were adults but their handling puts them at particular disadvantage. There was a very celebrated case that preceded this law. There are several reasons why this seems quite unreasonable to me. First, there is extensive evidence which we have talked about before that the important development changes continue throughout the teenage years. To reduce this to the question of whether children know right from wrong is highly misleading. Even pre-school children appreciate this distinction, although they approach it more in terms of fear of detection and the punishment that will follow rather than from internal justice principles and concern for the victims of wrong acts. During early adolescence, young people’s thinking tends to become more abstract, multi-dimensional and self-reflective. In addition, they are able to generate more alternatives in their decision-making. There is a marked increase in emotional introspection, together with a greater tendency to look back with regret and look ahead with apprehension. The transition to more adult modes of thinking does not emerge, as we have already heard, from any single age, but it is clear that it is very far from complete at age 10. As with any aspect of development, there are marked individual differences in how children achieve maturity. The second consideration is that homicide is rather different from the rest of juvenile delinquency in that it has not shown the same marked rise over the past half century or so. Nevertheless, homicide and serious juvenile delinquency have much in common. Thirdly, children who commit homicide are likely to be seriously psychologically disturbed—again, as we have discussed—and often have experience of very serious adversity. This means that they will usually require residential care in order to receive the intensive psychological treatment and rehabilitation that they urgently require. However, it also means, very positively, that rehabilitation is a realisable goal. As with any other criminal behaviour, there is a crucial need to balance the protection of society and the rehabilitation needs of the offender. Changes in the law should be viewed in terms of meeting both. That is, the change should not automatically mean that children receive a reduced sentence; rather, the argument is that they should be treated with respect to the differences between children and adults. This means that if we are to fail with our previous amendments—although I hope that we shall support the noble Lord, Lord Carlile of Berriew, and his colleagues if they come back with their amendment on Report—there would be a need to reintroduce doli incapax in that it is suggested that it would be reasonable to assume a lack of capacity below the age of 14 but to reverse the assumption over that age. In either instance, it should be open to the courts to decide in the case of that particular child with that particular background and with that particular crime that there was capacity below the age of 14 or that there was not over it. It is essential that careful consideration be given to the state of the offender before release, but this needs to be done with the benefit of expert advice from the Parole Board—I am afraid that the Executive would not be my choice. It would also be helpful for juveniles to have one offence of homicide, removing the distinction between manslaughter and murder with the implication that follows from that. I beg to move that we reinstate an amendment for doli incapax.