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.

See this speech in context