Frank Cook (Stockton North, Labour)

I remind the Committee that with this we are taking the following: amendment 18, in clause 39, page 24, line 3, after ‘D’, insert ‘or V’.

Amendment 164, in clause 39, page 24, leave out line 5.

Amendment 400, in clause 39, page 24, line 9, at end insert—

‘(1ZA) A person (“D”) who kills or is party to the killing of another is not to be convicted of murder if D was under the age of eighteen and his developmental immaturity—

(a) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and

(b) provides an explanation for D’s acts and omissions in doing or being a party to the killing.’.

Amendment 165, in clause 39, page 24, leave out lines 14 to 16.

Amendment 401, in clause 39, page 24, line 14, after ‘(1)(c)’, insert ‘, and subsection (1ZA)(b)’.

Amendment 402, in clause 39, page 24, line 15, after ‘functioning’, insert ‘or D’s developmental immaturity’.

Clause stand part.

Amendment 19, in clause 40, page 24, line 24, after ‘another’, insert ‘(“V”)’.

Amendment 20, in clause 40, page 24, line 25, after ‘D’, insert ‘or V’.

Clause 40 stand part.

David Howarth (Cambridge, Liberal Democrat)

Good morning to you, Mr. Cook, and to the rest of the Committee on what threatens to be a long day. We are discussing the law of murder and whether and to what extent the defence of diminished responsibility should be reformed. The law of murder is not easy to understand. It is a common law crime, with statutory defences. There are fundamental problems with the crime itself without even reaching the defences, which is why the debate is so complex. It would be useful for the Committee to  remind itself of what the Law Commission said originally about what we are discussing today. Paragraph 1.8 of its 2006 report states:

“The law governing homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have remained unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform. Other rules are of uncertain content, often because they have been constantly changed to the point that they can no longer be stated with any certainty or clarity.”

For the law on the most important serious crime to be in such a state is nothing short of a scandal. The Law Commission goes on to say that under the existing law, the law of murder is both too broad and too narrow, that it catches actions that most ordinary people would think were manslaughter and fails to catch actions that most ordinary people would think were murder but, in fact, legally are manslaughter. I remind the Committee of what the Law Commission said about that. On the category of when the law of murder appears to be broad, paragraph 1.17 of its report states that under the current law the defendant

“is liable for murder not only if he or she kills intentionally but also if he or she kills while intentionally inflicting harm which the jury considers to have been serious. In our view, the result is that the offence of murder is too wide. Even someone who reasonably believed that no one would be killed by their conduct and that the harm they were intentionally inflicting was not serious, can find themselves placed in the same offence category as the contract or serial killer.”

The Law Commission explains under paragraph 1.24 where the law of murder is too narrow and how people who would generally in public terms be thought to have committed murder end up being convicted of the lesser offence of manslaughter. It states:

“The scope of murder is both too broad and too narrow. Where the scope of murder is too narrow, the scope of manslaughter is correspondingly too broad. In particular, the law is too generous to some who kill by ‘reckless’ conduct, that is those who do not intend to cause serious harm but do realise that their conduct involves an unjustified risk of causing death. The law is too generous in treating all those who realise that their conduct poses a risk of causing death but press on regardless as guilty only of manslaughter.”

That is the starting point for our debate. The Law Commission proposed that the law of murder should be reformed. If we reform first the law of murder and what counts as an offence, we can then start to think about the partial defences that have the effect of turning murder into manslaughter. That is what we should have been doing, but we are not doing that at all. We are simply attempting to reform the defences without reforming the underlying offence.

Another important part of the problem is the mandatory life sentence for murder—the issue that dare not speak its name in this debate. Everyone who practises in the criminal courts knows that the real problem is the scope of the mandatory life sentence. The difference between murder and manslaughter is the difference between a mandatory life sentence and an optional one, which is optional at the choice of the sentencing judge. The Law Commission was tasked by the Government, who told it that it was not allowed to say that there should not be a mandatory life sentence, which is the view of many judges. The Law Commission approached the task by asking what the mandatory life sentence should apply to, and to define that as murder in the first degree. Then it asked whether there are murders or homicides that  are not murder in the first degree, and to those it would attach not the mandatory life sentence but the optional life sentence, and they would count as murder in the second degree.

If one did that—murder one, murder two and perhaps murder one, murder two, manslaughter—the defence of diminished responsibility that we are discussing becomes a completely different question. It is not about all the circumstances when one might want the mandatory life sentence not to apply, with an optional life sentence instead. It is only about specific circumstances where murder one would be charged, which is a murder that one wants a mandatory life sentence to apply to. In those circumstances, as one has already made a policy decision that those are cases to which the mandatory life sentence should apply, the scope of the diminished responsibility defence—this also applies to the loss of control defence that we will discuss later—ought to be narrow, because it contradicts the underlying polices about what should count as murder one.

Unfortunately, the Government have changed the reformed defences from the Law Commission’s work and have put the narrower versions of the defences into the Bill without having reformed the law of murder itself, and it is arguable that that makes no sense at all. The Government need to come back with a complete reform. When the Committee was taking evidence, I tried to get at the underlying policy reasons. The Government seem to intend that more people be convicted of murder, but they need to answer the question, “Why?” Looking at the particular terms of clause 39, we need to ask the Government precisely what in each case where they are narrowing the defence they intend to achieve by that narrowing.

Diminished responsibility at the moment, before clause 39 reforms it, is not a precise defence. It is deliberately so. Its function is to allow juries to say that people should not be found guilty of murder and should not receive a mandatory life sentence. It speaks of mental abnormality, but a mental abnormality is usually defined by the court as a state of mind different from the ordinary, not as any kind of clinical condition. That mental abnormality has substantially to have impaired the defendant’s mental responsibility. That is all it is—there is no accurate or precise definition of mental responsibility. It is just left at large and the jury gets to decide what it means in particular cases. There is no strict causation requirement—no requirement that the mental abnormality that substantially impaired the defendant’s mental responsibility should, in some clear sense, have caused the homicide. It is left up to the jury to think about the general idea of responsibility.

What does the clause do? First, it adds to the mental abnormality leg of the definition of diminished responsibility that the mental abnormality should arise from a “recognised medical condition”. Secondly, instead of the idea of mental responsibility being a broad question for the jury to decide upon, we get a precise definition of what that might mean, and what it can mean—understanding the nature of the defendant’s conduct, the ability to form a rational judgment, and exercising self-control. It has become much more precise, but what is the point of it? Thirdly, and one of our amendments deals with this specifically, is the addition to the responsibility concept of a precise notion of  causation—that there has to have been causation. In other words, the homicide would not have happened if the mental abnormality, which amounts to a recognised medical condition, had not occurred.

Our amendments are intended to test those changes and to ask the Government what is intended by them. First, I shall address the “recognised medical condition”. Broadly, that appears to mean that the defendant has to be suffering from something with the label DSM4 in the diagnostic and statistical manual of the American Psychiatric Association. That is what appears to be intended. Why is that? I do not think psychiatrists, in particular, are calling for this change, which means that they will be in court more often giving expert evidence with regard to particular labels to be added to the defendant’s condition. Why is that necessary?

With regard to the specific list of mental responsibility—understanding the nature of the conduct, forming a rational judgment and exercising self-control—what is the purpose of that extra specificity? What if there is some other way in which the person should not count as mentally responsible? In particular, there is the issue of mercy killings, which the hon. and learned Member for Harborough raised at our last meeting. If one forms a rational judgment, the paradoxical effect is that the more rational it would appear to carry out such a killing, the less likely one is to qualify for the defence. That appears to be the opposite of the current position. Is the Government’s intention to try to ensure that in mercy killing cases, such issues are taken away from the jury, which is instructed through the legal case to find mercy killers guilty of murder rather than manslaughter? At the moment it is rare in a mercy killing case for the verdict to be murder rather than manslaughter.

Finally, I turn to the causation issue. People who represent psychiatrists object to the extra specificity because they say that they cannot tell whether a particular condition caused a particular thing to happen, and they cannot give evidence in court to that effect. They can talk about people’s mental processes, their attitudes and what was happening in general inside that person’s head, but they cannot talk about it in the specific terms that seem to be required by clause 39. Why, against expert advice in the legal and medical professions, has the extra specificity been added?

With one exception, I do not want specifically to comment on the Conservative amendments, which raise important issues that I am sure that the Minister will address. Certain drafting problems have been raised, but the point of the amendments is not them but policy questions. However, I would like to put on the record my support for Conservative amendments 400 to 402 about developmental immaturity.

The drafting of the clause raises an anomaly. An addict, who in a sense lives with a developmental immaturity problem—in layman’s terms, although they are inaccurate, that person might have a chronological age of 40 but a mental age of 10—would have that condition taken into account, because it is a recognised medical condition. The trial would continue on the basis that there was a recognised medical condition. However, a child is only covered in the same way. A child of, say, 14 only has as a defence that their developmental condition is such that  their mental age—again using the lay term—is less than 14. If they were 10, the age of criminal responsibility, their mental age would have to be less than 10.

The anomaly involves children who are 10 and who have the maturity of a 10-year-old. An adult who acts like a 10-year-old gets that taken into account, but a 10-year-old who acts like a 10-year-old does not. As I understand it, the intention of the amendments is to correct that point and to give children the benefit of being children, without having to say that they are immature for their age.

Returning to the mandatory life sentence, the Law Commission says that the current law is a sort of “benign conspiracy”. That was confirmed in the evidence session, in which the Director of Public Prosecutions said that he could not see, technically, even under the existing law, how in a lot of cases a jury wanting to show mercy to a defendant could count the offence as manslaughter rather than murder. Quite a lot of jury nullification is going on, by which juries apply not the technical words of the law but their own moral standards. I like that; it goes to the heart of the common law and is how our system should work. In the end, no law should be enforced in this country if 12 ordinary people cannot be persuaded to apply it—the ultimate democratic test of any law. What follows is, simply, that the same thing will happen to clause 39—no matter what the Government try to put in the clause, juries will still have their way with the law.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Is it the position of the hon. Gentleman’s party that the mandatory life sentence should be abolished?

David Howarth (Cambridge, Liberal Democrat)

My position is the same as the Law Commission’s, that what we should do is to say where the mandatory life sentence should apply, which is in a narrow range of cases—although in some instances, the Law Commission pointed out that there are some anomalies where it should, but does not, apply now. We start with what we want to define as murder, which gives us the scope of the mandatory life sentence. I would be happy then to have very narrow defences, as under the Bill, because if we have a mandatory life sentence, we should not allow pathways out of it—we have decided that it is mandatory—but then the rest should consist of optional sentences for murder two and manslaughter. I prefer to do that through definitions of offences rather than using slippery defences, as under the Bill.

Returning to the point that I was making, juries will have their way with such defences anyway. If the Government went too far in trying to narrow the defences, all that would happen is that in reality—though not in the world of law—we would have something like the French system; in France, there is a general rule that extenuating circumstances, as found by the jury, remove the mandatory life sentence. Returning to the Minister’s comments, it might well be, after a number of years of trying to renew a set of definitions, that we come to the conclusion that the best thing that we can do is keep up with reality itself and move to something like the French system.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

It is a pleasure to be back in Committee this morning—as the hon. Member for Cambridge has said, we may be here for some time. Given that the clause stand part debate is included in the group of  amendments, I shall begin by talking about clauses 39 and 40, which we are debating the stand part of, before moving on to deal with the amendments and some of the points that have been made by the hon. and learned Member for Harborough in moving his amendment.

Clause 39, as Members have mentioned, reforms the law on diminished responsibility, which is a partial defence to murder. The hon. Member for Cambridge gave a brief exposition about the Law Commission’s report and his views on it, which has been helpful to the Committee in setting out the wider context of the offence generally, some of the developments that have taken place over the past few years and attempts to look at how to best reform the law—I think everybody admits that the law could do with some reforms.

The partial defence was examined along with other matters in the 2006 report by the Law Commission, called “Murder, Manslaughter and Infanticide”. It concluded that

“The definition of ‘diminished responsibility’ should be modernised, so that it is both clearer and better able to accommodate developments in expert diagnostic practice.”

The Government agree with that view, and the clause is designed to try to do that. It replaces, as the hon. Member for Cambridge has alluded to, the existing definition of the partial defence to murder of diminished responsibility with a new one is based on the concept of an abnormality of the mental functioning arising from a “recognised medical condition” by amending section 2 of the Homicide Act 1957. The existing partial defence defines diminished responsibility, which the hon. Gentleman has made reference to, as:

“such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired [the defendant’s] mental responsibility for [his or her] acts or omissions in doing or being party to the killing.”

The many lawyers in Committee, I think, will remember fondly learning those things at law school—in some cases, rather longer ago than in others. The Law Commission has two main criticisms—[Interruption.] Enough has been said about how long ago it was in my case. The Law Commission has two main criticisms of the partial defence. First, that the defence was not drafted with the needs and practices of medical experts in mind, and secondly that it does not explain what is involved in the substantial impairment of the defendant’s mental responsibility, which is required for it to succeed. Subsection (1) deals with the first criticism; namely, that the definition of diminished responsibility in the Homicide Act 1957 is not consistent with medical practice. The phrase “abnormality of mind” is not a psychiatric term, and the permissible causes as set out in the current definition do not represent current thinking on all causes that could give rise to mental impairment. Its meaning has had to be developed by the courts.

The hon. Member for Cambridge is a big fan of the common law. Common law has enormous advantages but also some disadvantages in the way that it develops. The changes that take regard of the concept of a recognised medical condition are to ensure that we replace the existing definition with one that will not have to be developed through time by common law, but that will keep up with developments in medical practice and understanding of the way in which diseases work.

David Howarth (Cambridge, Liberal Democrat)

This is an important point, because precisely the same point can be made about the law of murder, which is a common-law offence. As the Law Commission has said, it is such a common-law offence that it is difficult to state what it means with any precision. Why do the Government take that view about the defence of diminished responsibility, but do not hold the same view of the offence of murder in the first place?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I explained at the time that we responded to the Law Commission’s report and came forward with some of the proposals, which were, of course, consulted on before the production of the Bill. The Law Commission’s proposals were somewhat radical, and they did not command total agreement between all stakeholders and users of the system, whom we must get on board to ensure that the system works and is credible. We were therefore not able to reach agreement that led us to believe that we should go forward with the full panoply of restructuring the offence as well as splitting it up—as set out by the hon. Member for Cambridge—at this time. However, we believed that it was important to proceed with some of the valuable reforms of the partial defences that are in the Bill. There will be a second stage to our considerations about whether to go forward with some of the other proposals in the Law Commission’s report.

All the lawyers, and perhaps others on the Committee, accept that the law sometimes moves in a glacial fashion and does not always speed ahead as fast as the intellectual thought of the Law Commission. We must ensure a general consensus that we are going in the right direction, which was explained at the time of the consultation. We made it clear that we did not intend to go ahead at this stage with the entire proposal for reform, but that reforming the partial defences in this way was a valuable contribution to developments. We undertook to look further at whether the other proposals should be taken forward, in view of experiences arising from the changes, and we are still in that position.

The hon. Gentleman talked about classificatory systems. There are a number of accepted systems that encompass recognised physical, psychiatric and psychological conditions. Foremost among those is the World Health Organisation’s international classification of diseases, ICD10, as well as, as has been said, DSM4, which is the American Psychiatric Association’s diagnostic and statistical manual of mental disorders—please do not test me on that one.

The Government envisage that such accepted classification systems will be used later. If a qualified medical expert gives evidence that, at the time of the killing, a defendant was suffering from a condition included in one of these lists, and the jury accepts that, that part of the test will be met. There is also scope for conditions that are not included in such a list to be deemed recognised medical conditions for the purposes of the test, which addresses one of the concerns alluded to by the hon. Gentleman. Flexibility is important, as it caters for emerging conditions that, while they have not been recognised and put on the classificatory lists, are part way through being recognised and medical people out there are expert at dealing with them. The defence could therefore call a recognised specialist who has had their work peer-reviewed, although it has not quite got on the list. It would then be for the jury to decide whether that met the partial defence requirement.

Subsection (1) provides that a person who kills or who is a party to a killing is not to be convicted of murder if he or she was suffering from an abnormality of mental functioning that arose from a recognised medical condition, which substantially impaired his or her ability to do certain things that are set out under subsection (1)(1A), and which provides an explanation for their acts or omissions in doing things or being a party to the killing. The hon. Member for Cambridge referred to causation. The meaning of the “explanation” is expanded in subsection (1)(1B), which I shall cover when dealing with the amendments.

The Law Commission’s second main criticism of the law is that it refers to the defendant

“suffering from such an abnormality of mind...as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing”.

However, it does not explain what is involved in such a substantial impairment. Subsection (1)(1A) deals with the issue, following the Law Commission’s recommendation, by specifying that the abnormality of mental functioning that has arisen from the recognised medical condition must have substantially impaired the defendant’s ability to do at least one of the following actions: to understand the nature of his or her conduct; to form a rational judgment or to exercise self-control. If that test is not met, the partial defence cannot succeed.

The Government agree with the Law Commission that it is necessary for there to be some causal connection between the abnormality of mental functioning and the killing in order for the partial defence to succeed. It is right for there to be some connection between the condition and the killing, otherwise the partial defence could succeed in cases when the defendant’s mental condition made no difference to their behaviour, and they would have killed regardless of the medical condition. For that reason, subsection (1)(1B) provides that, for the partial defence to succeed, any such abnormality of mental functioning must have been at least a significant contributory factor in causing the defendant to do as he did. It need not have been the only cause, the main cause or the most important factor, but it must be more than merely trivial. The partial defence cannot succeed when the truth is that the recognised medical condition and the impairment were randomly present by coincidence and made absolutely no difference to the behaviour that ensued.

David Howarth (Cambridge, Liberal Democrat)

I do not want to go into the technicalities of causation and the law because that would take me and the whole Committee back to my previous life. I just want to draw attention to the practical problem caused when psychiatrists are called to give evidence but they say that they do not deal with such categories, contributory factors or cause, and deal only with people’s minds. There is a lack of connection between the way in which lawyers think and how psychiatrists think.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

There certainly will be other evidence of what went on in the individual circumstances of the case before the court, as well as the medical evidence. While we would not necessarily expect the medical expert to be an expert on causation, it would be for the jury in respect of all the evidence it has before it to decide whether it was merely coincidence or whether a  cause contributed more or was of some significance and related the behaviour to the medical condition. We would expect the expert to at least be able to say whether the kind of behaviour that was exhibited was the sort that often related to the medical condition that was being discussed. I am sure that the 12 good men, women and true would be able to use their sense in respect of the medical and other evidence before them. Clause 40 extends the provision that we are discussing under clause 39 to Northern Ireland.

Amendments 17 to 20 tabled by the hon. and learned Member for Harborough would extend the partial defence of diminished responsibility in murder cases significantly beyond the scope of current legislation. It would mean, recalling the hon. and learned Gentleman’s speech at our previous sitting, that the defence could be used not when the defendant was suffering an abnormality of mental functioning arising from a recognised mental condition, but when the deceased had been suffering in that way—in other words, the victim, the person who had been killed. The defence would need to show that the defendant’s ability, not that of the dead person, to understand the nature of his conduct, to form a rational judgment or to exercise self-control—or any combination of the three—had been substantially impaired by the deceased’s abnormality of mental functioning, and that the deceased’s abnormality provided an explanation for the killing.

The hon. and learned Gentleman’s remarks set out what he was reaching for, and he accepted that there might be some confusion in the amendment. He was setting out that the abnormality of mind was that of the deceased, rather than that of the person doing the killing. Those present understood what he was getting at. However, his amendments would lead to some bizarre and undesirable effects if we were to accept them.

The partial defence of diminished responsibility has never been designed to provide for such circumstances, but has always operated to make allowance for defendants who at the time of the killing were mentally impaired. We agree that that is the best basis for the continuation of the partial defence and wish to retain that limited scope. The partial defence should be limited to those whose own ability to exercise self-control, make a rational judgment or understand the nature of their conduct has been substantially impaired by their own abnormality of mental functioning. For the defence to succeed, they would need to show that the abnormality of mental functioning provided an explanation of the killing—we have just been discussing that—so there would have to be an element of causation, although not a heavy one. We do not believe, therefore, that the amendments of the hon. and learned Gentleman work conceptually.

It is a bit unusual to suggest that one person’s abnormality of mental functioning arising from a recognised medical condition would have the effect of substantially impairing a different person’s ability to understand the nature of their conduct, to form a rational judgment or to exercise control. The amendments would not serve the interests of justice, although we all understood the narrow ambit of the cases that he was talking about. However, explicitly providing the opportunity for the defence to inquire into the state of mind or general health of the deceased would be a worry. We would not want such things to  become commonplace in cases where the deceased had been suffering from an illness of one kind or another, or to create a specific defence for the killing of people who are mentally impaired. The signal that sends to society and the public would be difficult to defend, and we cannot support the amendments of the hon. and learned Gentleman.

There has been a bit of discussion about the concept of “mercy killings” and a person who kills out of some feeling to relieve the suffering of the deceased. The current law of diminished responsibility requires the defendant to have been suffering from an abnormality of mind arising from one of a number of specified sources. Our proposal introduces the concept of a recognised medical condition. Conditions currently amounting to an abnormality of mind fall within the definition of a recognised medical condition in the new test. Our change of wording for the partial defence is designed to make the law clearer, easier, more modern and better able to move into the future. The definition should be easily understood rather than left behind by medical developments, as the current one arguably has been. Amendments 17 to 20 seek to address a perceived problem that we do not believe exists. Even if the problem existed as the hon. and learned Gentleman set out, we do not believe that his amendments would work in a desirable way to deal with what he had to say.

Amendments 164 and 165 of the hon. Member for Cambridge would undermine our efforts to modernise the partial defence. The effect of amendment 164 would be to remove the requirement that the defendant’s abnormality of mental functioning arose from a recognised medical condition, and he explained why he put that forward.

However, we believe that the inclusion in clause 39 of the requirement for a recognised medical condition to have given rise to the abnormality of mental functioning follows the Law Commission’s recommendations in its report “Murder, Manslaughter and Infanticide”. It is designed to bring the existing terminology of the partial defence up to date in a way that encourages defences to be grounded in valid medical diagnosis, linked to accepted classificatory systems, with the flexibility to allow for future developments in diagnostic practice.

We believe that “recognised medical condition”, despite the concerns that have been expressed in the Committee, is a substantial improvement on the current law. It is supported by organisations such as the Bar Council, the Law Society and the Royal College of Paediatrics and Child Health. We believe that it will bed down quickly and it will be easier for the courts and medical practitioners to use than is currently the case.

Amendment 165 would remove the requirement that the defendant’s abnormality of mental functioning must have been at least a significant contributory factor in causing him to act as he did. We have rehearsed some of the arguments about causation. We do not believe that the partial defence should succeed where random coincidence has brought together the activity of the person and the recognised medical condition. We want to be more explicit about the extent of the required connection than the Law Commission was. We recognise that the Law Commission was not engaged in legislative drafting, and that is why we say that there must have been at least a significant contributory factor in causing the defendant to act as he did. We do not require the  defence to prove that it was the only cause or the main cause or the most important factor, but there must be something that is more than a merely trivial factor. There needs to be a link and we believe that the current wording gets that link right.

Amendment 165 removes all the detail and relies on the requirement that the abnormality of mental functioning must provide an explanation. Although the hon. Gentleman would no doubt argue that that does not remove a need for causation altogether, we do not consider that it is sufficiently precise. It is not clear how it would be interpreted by the courts and the defence.

David Howarth (Cambridge, Liberal Democrat)

The Minister has just expressed precisely why I want it to be like that, as the amendment intends. The attempt at precision is what is causing all the trouble. It is sometimes better to leave things to courts and to juries than to try to overdo the precision even more, which will get a reaction from the courts and from juries, which will be precisely what the Government did not want in the first place.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I do not think that we are an enormous distance apart. We are talking about how much causation is necessary between the recognised medical condition and the abnormality that gives rise to the act. Given that we are changing the statute, we need a certain amount of provision, but we hope that the wording that we are putting forward does not imply that there must be a hard causal link. It has to be the main cause or even the most important cause, but it must be more than trivial. I am not clear that the hon. Gentleman’s wording of explanation is sufficiently precise, but we may have to agree to disagree. I do not think that we are an enormous distance apart.

Amendments 400 to 402 introduce the concept of developmental immaturity into the partial defence of diminished responsibility for people between the ages of 10 and 18. On the previous occasion that we met, the hon. and learned Member for Harborough was worried that it was excluding children from the partial defence. It does not do that. There are many people under the age of 18—indeed under the age of 10—who are diagnosed with recognised medical conditions that may substantially impair their ability to do all kinds of things, and it would certainly fit them into the kind of defence that we are setting out here. Autistic spectrum disorders, for example, spring to mind. They are sometimes diagnosed at a very early age, and parents usually know about it before doctors. However, that is not to say that they are not diagnosed at an early age—they are. Of course, the defence would still be open in respect of children who have had a recognised medical condition diagnosed.

The effect of the amendments would be to extend the partial defence to where the defendant’s ability to understand the nature of his conduct, form a rational judgment, or exercise self-control were substantially impaired by developmental immaturity. The Government came to the conclusion that it would not be appropriate to extend the partial defence of diminished responsibility to include the developmental immaturity limb when we were considering the recommendations of the Law Commission. We looked at this very carefully and the reasons are essentially twofold. First we are not persuaded  that there is an underlying problem that needs to be addressed. Secondly, we think that there may be distinct disadvantages to introducing this limb to the defence.

During our consultation, the Government did not receive any evidence that the absence of a developmental immaturity provision in the existing law is causing any significant difficulties in practice, or resulting in injustice in specific cases. That being the case, we are not persuaded of the need to introduce this new concept in the context of modernising the partial defence.

We also believe that including the provision will create a serious risk of opening up the defence too widely and catching inappropriate cases. Opening the door to young people to plead developmental immaturity would complicate the trial unnecessarily in many cases where a defence of diminished responsibility should not be available, because the defendant is clearly in possession of all their normal faculties and is at a level that one might expect at their age. One could not blame advocates for trying any available defence—those of us on the Committee who have ever practised law have all looked at every possible angle. That is part of being an advocate. Therefore, no matter how unlikely it might be that it could succeed, including the provision may open the defence in a way that we do not want to, to a much wider range of cases, in order to deal with an issue with which we are not confident that there is a real practical problem.

However, we are confident that obviously deserving cases—I have given the example of a child with an autistic spectrum disorder—are covered by the defence as it is currently cast. On that basis, we do not believe that there is a serious issue of young people being denied the defence of being disadvantaged with respect to adults. The defence may be available to a person of any age, whether over or under 18. In essence, wherever a defendant, young person or adult, suffers from an abnormality of mental functioning arising from a recognised medical condition, it would be open to them to make the case that that substantially impaired their ability to understand the nature of their conduct, to form a rational judgment, and to exercise self control—or a combination of those three things. Even where a relevant abnormality of mental functioning is present, a defence will succeed only if the impairment of those abilities caused, or was a significant contributory factor in causing, the defendant to carry out the killing. We believe that that is the right balance and that the partial defence should apply only in those circumstances. I hope that that explains why we have come to the conclusion that we should not follow the Law Commission’s recommendation in respect of developmental immaturity.

I have probably been speaking for quite long enough on this group of amendments. I should like to invite the hon. and learned Member for Harborough to withdraw his amendments, but no doubt he will have something to say to us about that.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I am grateful to the Minister for explaining the Government’s response to the arguments put forward by the hon. Member for Cambridge and me. However, I am still of the view that if the Bill were a ship, it would capsize. It is constructed on a small hull—its title, the Coroners and Justice Bill—but the superstructure is too heavy and too big for the vessel. Over the past hour or so and at the end of  our previous sitting, we have had reasonable debate about one of the most important aspects of the criminal law. However, this part of the Bill is spatchcocked into a measure that deals, literally, with between 15 and 20 other discrete and complicated areas of the law. I urge the Government not to do that because although we have been having a good conversation, it is not the way to develop the criminal law.

I also urge the Government not to rely on or be seduced by the adjective “modern”; although it sounds nice and effective, it hides a multitude of ill-considered ideas. The reason why the common law—if I may say so—works is that it has been thought about in a developmental way over many centuries, not cobbled together in an overcrowded Bill in a timetabled Committee sitting. We cannot do anything about that now, and we have done our best in the short time we have, but I repeat my plea to the Government not to do that spatchcocking again. I said the same thing during the Criminal Justice and Immigration Bill, the Offender Management Bill and a number of the other Bills related to criminal justice that the Government have presented since 1997. I say it not only because I think that the system would be better in itself, but because it would make my life more comfortable. As the Committee knows, and is bored of me saying, I am not only a Member of Parliament, but a Crown court recorder, a part-time criminal judge. One of the things that I have to do is to take judicial refresher courses, which I do on both a day-case basis and a three-day residential course basis at Warwick university.

Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)

Take the Minister with you.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

My hon. Friend anticipates me. I urge Ministers, if they ever have the time, to come to the Judicial Studies Board courses, because they will see how devastating the analysis of the legislation is. Nobody suggests that Ministers are ill-motivated, but people suggest that Ministers are in too much of a hurry to pass legislation, as if that answers the public policy problem that is revealed.

Listening to the hon. Member for Cambridge has reminded me somewhat of the lectures I have heard by David Thomas, John Spencer and Nicola Padfield, who are all colleagues of the hon. Gentleman in academic life at Cambridge university. Although we are in Committee to legislate, not to have an academic discussion, it is important that if we are developing the criminal law, we should do so with some measure of understanding about what we are doing. The law should be fair, particularly in relation to homicide, and the punishment should fit the crime. The law should also produce a rational division of function between the judge and the jury. Perhaps more important in relation to the discussion we are having, it should be easy for the citizen to understand and for the jury to apply.

Despite all the references to the words “modern” and “modernisation”—

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I only said it once.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

Now the Minister is getting defensive. We are in danger of producing more and more law that is less and less easy to understand. The Minister may  not suffer from it but I do, because when I go to the JSP courses, as the only parliamentary representative on such occasions, they blame me for passing those laws. I urge both Ministers to spare a few moments and come to one of the courses—they would find it instructive.

James Gray (North Wiltshire, Conservative)

They would be lynched.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

They might avoid that. Both the hon. Member for Cambridge and the Minister rehearsed the existing law. They took us through section 2 of the Homicide Act 1957 and the Law Commission’s recommendations. From their different standpoints, they told us why the commission’s recommendations should or should not be followed. My sympathies, I am afraid, lie more with the hon. Gentleman than with the Minister on this occasion—albeit that I fully accept the political difficulty that all Governments face in relation to the question of the mandatory life sentence for murder. Until we unravel that difficulty—today is not the day to do that—we will go through the complicated hoops and over the hurdles that have been mentioned today.

I fully accept the Minister’s points in relation to my arguments about the victim’s state of mind affecting that of the killer. I will not pursue those arguments further but they were worth putting on the record. They might be more suitable for writers and academics than for a Public Bill Committee, and perhaps such arguments can be further developed in another place. I do not want to press the amendments further, and I thank the Minister for responding carefully to them.

There is more work to be done on the issue of developmental immaturity. Although I accept the Government’s response, and I understand why it differs from that of the Law Commission and from the views held by the hon. Member for Cambridge and me, the argument will not go away. The difference between what the Government propose and what we argue for relates to the question of developmental immaturity. The Law Commission was anxious to include that because criminal responsibility begins at the age of 10. At that age the frontal lobes of the brain, which govern self-control among other things, are not fully developed. Most experts who were consulted considered it essential to have regard to that factor when considering the extent of a young defendant’s responsibility for his conduct.

As the Minister said, the Government did not accept that line of argument for two reasons. First, they do not believe that the absence of such a provision is causing serious problems in practice and, secondly, they felt that it would open up the defence too widely and catch inappropriate cases. Even if it were to succeed only rarely, as the Law Commission suggests, the Government thought it likely that far more defendants would try to run that defence, thereby diverting attention from the key issue in too many trials.

As a matter of practice, judges are quite acute at preventing defences from going down cul-de-sacs or chasing irrelevant issues. Juries can spot a dodgy case when they see one, even if they might not approach the issue in the same academic or rational way as the hon. Member for Cambridge or a trial judge. There is a certain paradox in the Government’s approach to the arguments that have been put forward by the Law Commission and those who agree with it.

At present, natural developmental immaturity in a child who has reached the age of 10 does not constitute a defence. That may be why developmental immaturity is not causing problems in practice. However, it is surely offensive to justice that a child whose brain has not yet developed to the extent necessary to provide the self-control found in an adult should be unable to pray that fact in aid, at least as a partial defence. Children develop at different speeds. If—I accept that this is a big if—some are sufficiently mature at the age of 10 to have full criminal responsibility, those who are not should be entitled to pray that fact in aid.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Is not the hon. and learned Gentleman making an argument for raising the age of criminal responsibility, rather than including a developmental maturity limb in the partial defence? What is his party’s position on that?

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

We are at a stage of developmental immaturity in relation to the issue of doli incapax. I will not pretend to come back with a smart Alec answer. None the less, this is a live issue that needs to be considered. I hope that I have answered the Minister’s question in a way that does not dismiss it off hand.

We must ask ourselves about the key issue from which a plea of diminished responsibility by reasons of developmental immaturity would detract. Such a plea is likely to be advanced only when there is no issue about the fact that the defendant had committed the killing. If provocation was also being used as a defence, the age of the defendant, and its effect, would have to explored for that purpose.

There is perhaps a wider issue about whether under common law it would still be open to a child to advance a plea of doli incapax, or lack of criminal responsibility. That issue has been discussed in textbooks and I will not delay the Committee further by going through it. In all events, it will be apparent that my sympathies, and those of the Conservative party—and this might be true of individuals in other parties as well—tend towards the Law Commission’s view rather than that of the Government.

Having said that, as I indicated last Thursday, I am not going to press this matter to a vote; it is almost too important to be limited to a yes or no answer and requires a lot more thought. The Government are in a hurry, the Bill is too big and we in the House of Commons cannot properly discuss these issues in a way that produces a law that is clear, fair and understandable to the jury and the wider public.

I will leave the matter there for the moment and invite the Government to think about it between now and the time that the Bill arrives in the other place. In closing, I invite those in the other place to use the opportunities that they have, untrammelled by time constraints, to think about this and advise us more clearly. Should they come back with any amendments, I hope that we will be given the time to consider them. I beg to ask leave to withdraw the amendment.