Coroners and Justice Bill

My Lords, Amendments 57, 58 and 59 in the name of the noble Lord, Lord Hunt of Wirral, deal with the important question of developmental immaturity in the context of the diminished responsibility partial defence to murder. We remain unpersuaded of the need for the amendments, and I will do my best to explain why. The current reform of the partial defence to murder of diminished responsibility is designed to modernise the law; we do not intend it to change its scope fundamentally or at all. We do not believe that the law needs to be opened up in the way proposed. Interestingly, I can pray in aid the Criminal Bar Association, which takes the same view on this issue. Originally it supported the inclusion of a developmental immaturity clause in the diminished responsibility partial defence to murder, but it changed its position when responding to the consultation and now considers that it is not necessary. Let us put that to one side, though, and deal with the issue. The current law of diminished responsibility does not include any such concept as developmental immaturity, and we have not been shown any convincing evidence of a problem with its absence. The new formulation in these clauses is based on the concept of a recognised medical condition. We do not consider that the defence of diminished responsibility should be available where no such medical condition is present. It has been argued that that is unfair to juveniles, as it will be harder for them to benefit from the defence of diminished responsibility than for adults to do so. We do not accept that either. Where a defendant under 18 has killed, he or she may be able to benefit from the partial defence if they are suffering from a recognised medical condition. In many cases where the child defendant could be described as being developmentally immature, this immaturity will have resulted from a recognised medical condition; for example, learning difficulties, autistic spectrum disorder or frontal lobe disorder. One might characterise that as "abnormal" immaturity. It has also been argued that a normal 10 or 11 year-old who must face the full force of the law is disadvantaged when compared with an adult with a recognised medical condition who functions similarly to a 10 or 11 year-old child and may succeed with a diminished responsibility partial defence. We think that there are some problems with that argument. First, it is not realistic to talk about people behaving in a way consistent with a particular age; behaviour varies so much, both between and within individuals of the same and different ages, that we are not sure that the concept is helpful. Secondly, the reason why the adult in this scenario benefits from the partial defence is not that he is behaving like a child but because his medical condition results in a mental abnormality substantially impairing his ability to make a rational judgment, understand the nature of his conduct or exercise self-control. On the other hand, a child who is developmentally immature but who has no recognised medical condition is not suffering in this way; they are, as it were, "normally" immature. In any event, we argue that this does not constitute an argument for a developmental immaturity limb to the partial defence to be added but, rather, for a change in the age of criminal responsibility. That is not a matter up for discussion today with regard to any amendments. It certainly was in Committee; I think it was the noble Baroness, Lady Murphy, who introduced such an amendment. If this is really an argument about the age of criminal responsibility, that is a different matter altogether. I do not believe that the noble Lord is arguing for such a change. It has also been argued that clinical experts are not able to diagnose certain conditions in those under 18 where, if an adult displayed similar characteristics, this would result in a diagnosis of a recognised medical condition. However, we know that in practice the psychological conditions in relation to which this argument is made—for example, various personality disorders—are diagnosed in juveniles, so we do not think this is an insuperable difficulty. It is our view that where a child over the age of criminal responsibility kills, they should be held fully responsible for their actions unless they are suffering from a recognised medical condition even if they are immature for their age. A developmental immaturity limb in the diminished responsibility partial defence would have a number of significant disadvantages. Let us suppose that a teenager, in a fight with another teenager, pulls the knife he routinely carries and stabs to death the other youth. He could potentially argue the defence even if he has no medical condition but is simply immature for his age, however that immaturity might be explained or described. We do not believe that a partial defence to murder should be even potentially available in such circumstances. Again, we are concerned that young defendants would routinely seek to plead the partial defence, even in cases manifestly lacking any merit. The courts would be required to contend with this and it would inevitably lead to delays and unproductive use of criminal justice services. In 2007, 38 trials and 26 convictions involved homicide where the defendant was under 18, so the number of cases likely to be affected is significant. Importantly, we have not seen evidence that the absence of a developmental immaturity limb in the current law has resulted either in injustice or practical difficulties. For these reasons we oppose the amendment and invite the noble Lord to withdraw it.