Coroners and Justice Bill

I thank the noble Baroness, Lady Murphy, for Amendment 161. It is an important subject. I am very conscious, as have all speakers been, that we went over some of the general ground in a long and important debate before our adjournment. The amendment is about the presumption of doli incapax that was in our law until 1998. I would like to make some comments in my reply dealing with that issue and about some of the other issues. I take exception in a gentle way with the noble Lord, Lord Patel, when he claims that young people between the ages of 10 and 18 are subject to the same justice system as adults. They are not. They have youth courts, and the way they are disposed of by the courts if they are found guilty could not be more different. The trouble that is taken with young people—indeed, the noble Earl, Lord Listowel, was making this point before dinner—who are convicted of committing offences is different in kind from the trouble that is taken with those over that age. I will return to that when I have dealt with the subject matter of the amendment. The doctrine of doli incapax involved a rebuttable presumption in criminal proceedings that a child of between 10 and 14 years of age did not know the difference between right and wrong and was, consequently, incapable of committing crime. This is a probing amendment and obviously we could not just put the law back to what it was by the amendment, so let me try to explain why we do not believe that that doctrine should be resurrected. In the White Paper No More Excuses, published in November 1997, the Government said: ""To prevent offending and re-offending by young people, we must stop making excuses for youth crime. Children above the age of criminal responsibility are generally mature enough to be accountable for their actions and the law should recognise this"." That remains our view. It is both the right approach and, as it happens, also the view of the vast majority of people who live in our country. Our communities are entitled to be protected from anyone who sets out to cause harm and to have confidence that the criminal justice system will protect them and deal with those who break the law, but will take special notice and care of those who break the law but are of a young age. The presumption in practice led to delays, to cases being dropped and to unjust, paradoxical and unfair outcomes for victims, for witnesses and, not least, for the young person in question. In addition to having to prove both that the defendant committed the criminal act and that he or she had the required mental state at the time to the criminal standard— that is, beyond reasonable doubt—the prosecution in cases involving a child aged under 14 would have to rebut the presumption. I say to the noble Lord, Lord Carlile, that I am not sure that some of those other countries that he mentioned, where the age of criminal responsibility is older, have quite the same standard and burden of proof as we have in all criminal proceedings in this country. That presumption could be rebutted only by clear positive evidence that the child knew that his or her act was seriously wrong at the time when he committed the act concerned. Mere proof of intentionally doing the act concerned, however terrible or obviously wrong that act might have been, could not establish the requisite guilty knowledge and rebut the presumption. That would bring back delay into our court system, and nothing is worse than delay, particularly when it involves young offenders. It would also bring back the need for further evidence, quite separate from the evidence of the offence itself, to show that the young person knew what they had done was not just wrong but seriously wrong at the time when he or she committed the act concerned. We are determined that people who offend—and that includes young people, too—take responsibility for their actions. We should not return to a culture of excusing such behaviour. That is in no one’s interests, least of all those of the young people themselves. We all accept that there has to be a point at which an individual becomes responsible for what they do. The courts of course take account of the young person’s age, first, in how the case is conducted. It is conducted in separate courts from adults, in youth courts set up specifically to deal with young people. Account is taken, secondly, in the disposal: the sentence handed down. About a year ago, we spent night after night discussing a criminal justice Bill. We discussed for a long time, the noble Lord, Lord Kingsland, may recall, issues surrounding youth sentences: what should we do with young people who are convicted of offences? The last thing being suggested was that we should somehow treat them as adult offenders. So it is not fair to say that they are somehow subject to the same justice system, as though there is no distinction made between young people and adults under our justice system. Every difference is made, particularly in terms of venue and how we deal with them if they are convicted. I very much took on board the point of the noble Earl, Lord Listowel, about social workers. They are completely unfairly denigrated, and I find astonishing the amount of money that experienced social workers can get for a lifetime’s work in that profession compared to, for example, what young lawyers can sometimes get. The comparison is ridiculous under our system, and it is right that a Minister should say that social workers do a fantastic job, particularly for young people. I thank the noble Earl for his comments. The suggestion was made that we do not react enough as a Government, whatever party is in power, to the influence of the press—and the popular press, at that. Well, sometimes that may be true. I concede that, of course. However, on the case that I think the noble Baroness, Lady Murphy, was hinting at that led to a change in the law—the Bulger case—after their years in custody, being looked after as young offenders should be, those two young men had a chance to start a new life. That was done with complete hostility from large sections of the popular press, but it was still done. Governments and the system do not always give way to popular opinion of that kind. I hope that some credit can be gained from that. I end on a slightly lighter note, if there can be a lighter note on such a serious subject. I invite noble Lords and the noble Baroness in particular to look at the Mail online this morning, which deals with a study from the University of Chicago, which makes the point—I am not saying that this is right or wrong, but it is an interesting part of the argument—that, ""Children have an inbuilt sense of right and wrong, researchers claimed last night"." I hand my copy to the noble Baroness. There is an argument that states that children do have that inbuilt sense. They are talking about the ages from seven to 12. It is part of the argument that psychiatrists and others use. We would be taking a retrograde step if we were to change the law back to what it was prior to 1998. I take many of the points that are made about how children and young people are different from adults and need to be treated differently from adults once they have been convicted under the criminal justice system. I would argue that they are treated very differently under our system and that is the right way for us to carry on. Having thanked the noble Baroness again for instigating this short debate, I ask her to withdraw her amendment.