Wednesday, 26 May 2010

Criminal liability of Children and their trials

Two boys (now aged 10 and 11) have been convicted of attempted rape - see The Independent 24th May 2010. The trial was held at the Old Bailey and has sparked outrage in some quarters (especially children's charities) - see the BBC report.  The age of criminal responsibility in England and Wales is 10.  This is among the lowest in Europe and the United Nations has recommended that the age be raised -see House of Commons Briefing Paper February 2009.   Law and Lawyers looked at this back in March 2010. when, with rather unfortunate timing, the Children's Commissioner raised the issue.  Scotland is considering raising the age to 12 years.

The method of trying children and young persons in the Crown Court for serious crimes is crying out for radical reform. [In April, Law and Lawyers looked at the trial protocol to enable trial of serious sexual offences within youth courts].  It is now 17 years since the trial of Robert Thompson and Jon Venables for the murder of James Bulger.  In 1999 their cases were considered by the European Court of Human Rights (Grand Chamber) which was critical of the trial process used - see the judgements - T v UK and V v UK.  Since the trial of Thompson and Venables there has been considerable improvement, particularly with regard to "special measures" to enable child witnesses (and other vulnerable witnesses) to give their evidence.  Nevertheless, a child must still be subjected to live cross-examination which, of course, may be a considerable time after the events in issue.  There is little doubt that "special measures" have been (generally-speaking) beneficial to the trial process but the serious question remains as to whether different processes and procedures are required.

This is a complex issue but it should be examined with some urgency.  Former D.P.P. Sir Kenneth MacDonald has said - "..., we've been witnessing a spectacle that has no place in an intelligent society: very young children do not belong in criminal courts."  He must be right.

See also - "Children and Young People Now" - 25th May 2010

Scotland - a rather different approach:

Interestingly, since 1971, Scotland has used a system of Childrens Hearings to which those under age 16 (sometimes under 18) can be referred unless the Procurator Fiscal considers the seriousness of the case to justify trial by the Sheriff's Court or the High Court of Justiciary. It cannot however be claimed that everything about the Scottish Youth Justice system is perfect though the Childrens Hearing system is generally well regarded.  The Scottish system came out of the Kilbrandon Report of 1964. 

For an interesting article see "The Politicization of Youth Crime in Scotland .." (Laura Piacentini and Reece Walters) and see The Guardian 26th May for a useful article about the Scottish system (author Douglas Bulloch, a former Chairman of the Scottish Children's Reporter Administration).

Centre for Crime and Justice Studies - "10 years of Labour's Youth Justice Reforms" - May 2008.

Addendum - 7th June 2010:  Paul Mendelle QC, the Chairman of the Criminal Bar Association, has called for the age of criminal responsibility to be raised.   See Telegraph 7th June.


  1. I always find it hard to make sense of young children being prosecuted for "serious" crimes.

    I have a hard time believing that children have a real appreciation of just what it is they are doing wrong. Especially when children are highly curious, and that includes curiosity about their and other's bodies.

    Even the victim in this case said she was being "naughty"; apparently not differentiated to nicking an extra biscuit while no one is looking or reading a book under the covers after lights out. Does this admission not also somehow imply a level of consent?

    Maybe what we need is to lock up all 10 year olds for playing "doctors and nurses" for indecent exposure, sexual assault and have them all sign the sex-offenders register for life?

    When does "doctors and nurses" become attempted-rape? Where is the line drawn? What makes this case so special that it's rape and not simply childhood exploration?

    Will these boys be scarred for life, unable to have normal relationships with women, because anything approaching intimacy will be associated with attempted rape to them?

    Rape is such an emotive term; so much so that it clouds our sense of perspective. If the kids had had a fight, would we take them to court and prosecute them for actual bodily harm?

  2. Sympathy for the difficulties faced by vulnerable witnesses is all very well, but we must remember that cross-examination is an important protection for defendents, who may as in this case be under-age themselves, and sometimes will be in fact innocent.

    The more dreadful the offence, the more severe the punishment faced by the defendent, and the more important he have the protections of an adversarial trial.

    A young or vulnerable victim is an aggravating factor, so it makes no sense to me that an vulnerable victim can justify abridging the protections afforded the defendant. That must cut both ways.

    There is no doubt that the measures required to make sure a trial is fair will often make it a much worse experience for witnesses. The solution cannot be to abandon those measures, or abridge the right of defendents to challenge evidence.

  3. Anonymous, I have not (yet) looked at the possible consequences for the convicted boys. They are potentially very serious.

    Ben - I think the questions are (a) whether the age of criminal responsibility should rise - (I happen to think it should rise to 12) and, if so, (b) how would you then deal with:

    i) those below the new age of criminal responsibility who commit serious acts; and
    ii)those above the new age of criminal responsibility who are under age 18.

    We all need to give serious thought to those questions. You are, of course, absolutely right in saying that those accused of serious conduct must be able to have the evidence tested. I am sure that we will come back to this subject.

  4. ObiterJ, for your first question, there is general consensus globally that it should be somewhere between 7 and 18. I am not being purposefully unhelpful but the fact is there is a very broad spectrum of opinion, and no obvious bright lines.

    Changing the age to 12 would have removed these two boys from the criminal justice system. Would that have been a good thing? I am not sure it would.

    In your second question, you are assuming that the cut-off for special measures should be 18. Why not 21? Why not 16? Why not on a case-by-case basis?

    The spectacle of children on trial is disturbing. It doesn't follow there is any better option.

  5. Thanks for the article, interesting read.

  6. "very young children do not belong in criminal courts"

    Maybe not - but how young is "very young".
    There's no obvious answer to this.
    And which children do not belong there? victims?
    other witnesses? defendants? The first two can be there it would seem without too much "outrage".

    Or is the proposition that somehow young defendants should be dealt with in an un-criminal court ?

    "doctors and nurses"

    Remember that this is not so much a fact (or even evidence) but rather a characterisation of the events by the defence who (properly) were seeking to avoid their clients being found guilty. And (apparently) not a view that the jury took. Nor, merely because a defence lawyer says something does not it make it "true".

    perhaps some of this reaction is aimed at preventing the undoubtedly distressing impact for the victim of the trial process. If at some time the age of criminal responsibility is raised (particularly if towards the higher end of the ranges that some propose) will we not see "outrage" along the lines of "vulnerable young victim denied justice because his/her attackers were 'too young'.

  7. At risk of wearing out my welcome, can I add a couple of points.

    In juristictions with a high age of criminal responsibility, this does not mean that nothing happens if an underage person commits a criminal act. Proceedings still take place, penalties are still imposed, including confinement, enforced supervision, enforced activity, enforced inactivity, and enforced estrangement from friends and even family. In combination with care proceedings, our criminal courts have all these at their disposal already.

    I fully agree that juveniles should be treated differently by the system. That can happen as part of sentencing, or as part of the duties of the prison service. Bulger's killers were nominally jailed for life, but in practice they were in secure care, and received education and pastoral care under close supervision. That is little different in practice to what would have happened to them had they been processed through a juvenile system, except that they had the protection of jury trial, with the country's best lawyers pleading their case.

    That is as it should be.

    The problem is that juvenile procedures generally involve a curtailment of the rights of the defendant, (in their interests of course), while still often imposing penalties (in the form nominally of compulsory supervision) which are every bit as severe as the penalties our criminal courts give in practice. America, which always has an interesting variety of legal phenomena for study, has several examples of juvenile justice systems which have been found wanting on that basis.

    It does not help that juvenile procedures are (usually? always?) closed to the public, and publicity orders often effectively prevent any details being discussed. This produces an unhealthy atmosphere of "secret courts" - the same criticism is raised, and valid, in family cases. Ofsted and HMIP prove that oversight, while useful, is no substitute for journalists and the public being able to see for themselves what is going on.

    The inability to talk about particulars is a highly effective barrier to public discusssion of the general.

  8. Of course, special measures apply only to witnesses and not to Defendants. So even if Thompson and Venables had been tried today from their point of view the trial would have looked almost exactly the same save that any child or vulnerable adult witnesses would not have had to face the defendants as they gave evidence (usually they are on a video-link or behind a screen).

  9. According to the report of the case in The Independent, the two boy defendants did not give evidence. Special measures would have applied to the young girl victim.

    An important case in which the lack of special measures for defendants was discussed is R v Camberwell Youth Court [2005] UKHL 4. The case is discussed here.

  10. A further case is R(S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin in which the court held that there is no inherent power to allow a defendant to give evidence by live link.