HC Deb 15 July 1963 vol 681 cc268-73
Mr. MacColl

I beg to move, in page 10, line 35, and the end to insert: and by inserting after the word 'years' the words 'nor any child or young person in respect of whom a report has been made to the local health authority under section 57 of the Education Act 1944 as amended by the Mental Health Act 1959'". This Amendment is designed to amend the Clause which deals with the age of criminal responsibility and which, in turn, amends Section 50 of the Children and Young Persons Act, 1933. The Bill proposes to amend that Section 50 by substituting the age of 10 for the age of eight. The Amendment would make a further Amendment; to add a rather complicated definition regarding a … child or young person in respect of whom a report has been made to the local health authority under section 57 of the Education Act 1944 as amended by the Mental Health Act 1959". Under the 1944 Act there was a category of child who was called "ineducable" and was excluded from education. It ceased to be the responsibility of the local education authority and it became the responsibility of the public health department. That category was altered by the Mental Health Act, 1959, and the word "ineducable" was dropped. The phrase in the Amendment is, perhaps, the best when referring to the sort of child we have in mind.

2.45 a.m.

It is always a problem in looking at the age of criminal responsibility that one is looking at the chronological age while what really matters is the mental age. It is difficult to have a complete yardstick to show that at a certain age a child ought not to be held responsible for a criminal act, because a child of a certain age may have a wide range of achievement and understanding and a grasp of what is going on. But once we depart from chronological age, which can be proved by birth certificate, to mental age we get into treacherous waters, because intelligence quotients are treacherous things to which to attach too much importance. They vary according to the mental state of the child and according to his education. In any case it is not possible to know in advance what the intelligence of the child is. One cannot have intelligence quotients taken before court proceedings although normally they would be taken in the course of inquiries afterwards.

This undoubtedly leads to a good deal of injustice. Sometimes in some court it is possible for the education authority with a wink and a nod to advise the clerk of the court that a child is attending a special school for educationally subnormal children but it is not always possible to do so. Nor is it always true that all educationally subnormal children have been ascertained and are attending a special school.

Here, however, is a particular group of children who are very clearly defined, because there is a perfectly clear procedure whereby reports are made to the local health authority and the children become grossly retarded children unsuitable for ordinary education. It seems clear that a child who is so grossly retarded as to be unable to benefit from any education, even at a special school, is too grossly retarded to be held responsible for criminal acts he may perform. It is a piece of gratuitous harshness to go through the farce of bringing such a child before the court and to obtain a label of criminal conviction when he is quite illiterate and incapable of being allowed to be on his own and is not even sufficiently developed to go to a school of any kind.

I have been told that this frequently happens. It is true that a child of this sort may be a serious behaviour problem but there are other means than criminal charges of dealing with him. These children should be dealt with under the Mental Health Act. It is up to the mental health authorities to exert themselves to deal with the problems of these children. The temptation is to say, "Fortunately the child has stolen something. We can get him into court and make a charge against him and we will know that that somebody will do something about seeing that he is placed under proper care and attention." This is the temptation but it is shocking that that should be done. There is no case at all for children of this sort to be held responsible for actions for which manifestly they are not responsible. Therefore, I suggest in this Amendment that children in this category should be included with the children under the age of 10, because clearly they are under the age of 10 so far as their mental capacity is concerned. They ought to be included and there ought to be an absolute presumption that they are not criminally responsible.

I think this is a useful Amendment because there is a clearly-defined category to which it can be applied; it makes a more rational approach to the problem of responsibility than the present provision does, and I hope it will commend itself to the Government.

Mr. Brooke

I think the House will have a natural sympathy with the general intention of the hon. Member, but, as I shall explain, the matter is rather more complicated than he has indicated—and complicated in a practical sense as well as in theoretical terms.

What the hon. Member is asking is that these children, or young persons, shall be dealt with under the criminal law differently from other people suffering from mental disorder. As regards the generality of the population, the fact that a person has been found to be suffering from a mental disorder does not affect his liability to be charged with a criminal offence. The court before which he is charged has to decide by the same criteria as are applied to all other accused persons whether he is to be regarded as responsible for his act, having regard, of course, to his mental condition it the time when it was committed.

In the case of a child under 14 the court must be satisfied that he was capable of forming a guilty intention. It would be very hard indeed, I should say, for the court to be satisfied in the case of the kind of child which the hon. Member has in mind. The court applying those general criteria, if it finds him guilty, and if it believes him to be suffering from mental disorder of such a nature as warrants his compulsory admission to hospital or reception into guardianship, has power under the Mental Health Act to deal with him accordingly; and there are, of course, other powers.

If I understand the hon. Member aright, he is arguing that children in the category defined in this Amendment would best be dealt with for anti-social behaviour outside the courts altogether. I think everybody would agree that if possible they should be so dealt with. But there are cases in which that would create a real practical problem. Not only that, but it would be, as I explained, out of line with the general policy of the law towards people suffering from mental disorder. That law has been reviewed by Parliament as recently as four years ago, and Parliament has not granted any general exemption from criminal responsibility to those who are suffering from mental disorder. What the law does give in such cases is proper protection against their being unjustly labelled as delinquents. The law also enables the court, in appropriate cases, to take steps to see that the kind of treatment which is needed is secured.

The hon. Member is arguing that all these matters, in the case of children and young persons, can be dealt with administratively by the mental health services. One starts with a great deal of sympathy to that point of view, but I should like to give the House the sort of practical case that might arise. Suppose that one of these subnormal children, living at home with parents, starts to be accused by the neighbours of the kind of behaviour which, if it was proved against the child, would afford grounds for the compulsory removal of the child away from home, whether to a hospital or to some other form of care.

The parents of the child may absolutely deny the accusation that the child is so misbehaving. They might claim that those allegations against their subnormal child were malicious, ill-intentioned and ill-founded. There is then a dispute, which has to be resolved. It is not a question that can be resolved just by the doctors or by the mental welfare officers, by the social services generally or by administrative process. In the end, it is a question which must be resolved by the courts. It is a question for a court to decide.

I entirely agree that the problems presented by these subnormal children and young people can often, and should as often as possible, be dealt with without recourse to a court, but complete exemption from the jurisdiction of the courts in all circumstances would not in every case be in the best interests of the child and it would leave unresolved the kind of dispute which I have described.

It is, therefore, not with any lack of sympathy to the hon. Member's purpose, but because I sincerely do not believe that the general exemption which he is recommending would be the right way of handling these difficult cases, that I must advise the House not to accept the Amendment.

Mr. MacColl

It is difficult for the Home Secretary to run the two arguments at the same time. He says, with weight, that if the court knows that the child is grossly retarded, it is most unlikely that it would be able to discharge the obligation, which applies only under the age of 14, of establishing guilty intent. At the same time, the right hon. Gentleman says that this is a useful way of determining the facts of what happens and that, therefore, if the parent denies the charge and that such occurrences have taken place, the court can decide.

The court, however, cannot do so. If it decides that the child is incapable of forming a guilty intent, the case has to be dismissed regardless of the facts that are proved, if the case fails on the ground of intent and not of the facts. As to the under-fourteens, therefore, that argument defeats itself, provided that the court knows that the child is of that unhappy kind.

The worry arises when the court is not told. No responsibility rests upon anybody to produce that evidence. If they are not legally advised, it may be extremely difficult for the magistrates to fish around and find out what the facts of the situation are.

3.0 a.m.

Although it may be true that in the case of those over 14 it may be possible to establish the facts, the difficulty then arises, it seems to me, of the child who is grossly retarded and has a mental age of about four or five. We recognise that young children are not equipped and ought not to be charged with criminal offences. If a child is of a mental age of four or five in spite of the fact that the chronological age is 15, it is an abuse of the courts that they should be used to establish a finding of guilt against him. I am sorry that the right hon. Gentleman will not accept the Amendment.

Amendment negatived.