The following article by Allan Levy Q.C. - a leading counsel in family law -
appeared in the 1994 lecture brochure. It came in the wake of a very disturbing case
in Liverpool where a very young child, Jamie Bulger, was brutally murdered by two
older boys, Robert Thompson and Jon Venables. The article caused a furore in the Press
where there was considerable dissatisfaction with Allan Levy's views. However, over
the years the wisdom of his opinions have become more clear.
At the time of this article, the Home Secretary faced with the problem of the Bulger case was Michael Howard.
CHILDREN AND CRIMINAL JUSTICE.
A wise judge observed that children are especially vulnerable because
they have not formed the defences inside themselves which other
people have and therefore they need special protection. When one
surveys aspects of our criminal justice system, it appears that reasonable
observation is being pointedly ignored. A spectacularly awful death of a young
child caused by young children the Bulger case and a juvenile crime rate
which is said by some to be out of control seems to have resulted in a kind of
campaign against some children in which the fact of childhood is no longer
apparently to be considered relevant.
The Bulger case itself raises fundamental questions about the very nature
of our criminal justice system. Sympathy for the family of the unfortunate
victim and shock at the facts should not deflect this process which is long
overdue. Should Robert Thompson and Jon Venables, both aged 10, have been
held criminally responsible! However skilled their legal advisers, -were they
really able to comprehend the complexities of a major criminal prosecution and
trial! Should they have appeared in the full glare of the media anti the public in
a Crown Court! Should a campaigning Home Secretary have a major role
The age of criminal responsibility at common law was seven. In 1933, it was
raised by statute to 10. In 1969, Parliament decided that generally, though not
in respect of homicide, it should be 14, but the provision they provided has
never been brought into force. Political timidity may well be the reason for this
lack of faith in the thinking of 25 years ago. The general trend elsewhere has
been in favour of reform by actually raising the age. In Canada the age was
moved from seven to 12; in Israel from 9 to 13; in Norway from 14 to 15; in
Cuba from 12 to 16; and in Rumania from 14 to 18. We are well out of line
with most major European countries: in France the age of responsibility is 13;
in Germany and Italy it is 14; in Denmark and Sweden it is 15; in Spain it is 16.
The whole basis of the provision in 1969 to increase the age to 14 here was
that children should receive care and control and not be subject to the criminal
process. This was surely an enlightened policy which should have been carried
through to eventually include homicide. For those crying for retribution and
for keys to be thrown away presumably nothing will be satisfactory as an
alternative. For the reasonably concerned, however, the key word was control.
The need for control would permit care proceedings to be instituted and where
necessary restrictions to be imposed. The statutory scheme provided by the
Children Act 1989 would apply. It would appear that any extension of
restrictions, necessary beyond the age of 18, would require further provisions.
It seems extraordinary that whilst many other countries advance both their
thinking and the age for criminal responsibility we spend a generation failing to
do either. The realities of the Bulger trial only confirm the sad message. The
full adversarial process of a major criminal prosecution enveloped the two 10
year olds. The highly-experienced police officers, psychiatrists, lawyers,
magistrates and the high court judge involved as the case progressed at length
were no doubt properly in their element. What of the two children each aged
10! Do we seriously try and maintain that they understood all the issues, the
language used and gave clear instructions as was necessary. Despite the skilled
efforts of those professionally involved, only a moments thought is surely
required to refute such wishful thinking.
Additionally, the exposure of the case to the voracious national and
international media is inexcusable. A number of observers of the case later
wrote of their embarrassment regarding the spectacle. The disquiet does not
unfortunately end with the Verdict and the sentence. The length of time the
two children have to spend in detention is ultimately in the hands of the Home
Secretary. Firstly, the trial judge makes a recommendation of a tariff Period to
reflect retribution and deterrence. He put forward eight years. The Lord Chief
Justice amended the period to 10 years Then came the decisive intervention.
The Home Secretary has laid down that the period is to be 15 years. One
editorial in a national broadsheet has argued that Michael Howard is the last
person to make the decision as no one has done more to politicize law and
order. He has seized every opportunity to exploit his hard-line views about the
police, prisons and punishment in a bid to bolster his party politically.
Sentencing, it is said, should be a judicial process and not a Political exercise.
Whatever the reality of the motivation for the Home Secretary's
intervention, the appearance of a political act is surely enough to disqualify him
from his role. Indeed the European Commission and Court of Human Rights in
Strasbourg is eventually likely to restrict the sentencing process to acts of the
judiciary and the Parole Board.
The Bulger case has revealed the unacceptable face of our criminal justice
system concerning children. It provides an unpalatable insight into outmoded
thought, reform denied and the appearance of political calculation.
RIGHT AND WRONG
The temptation to treat children as if they were adults has also led a Divisional
Court last March to an extraordinary decision. Prior to the case, there was a
presumption that a child under 14 is incapable of committing crime. The onus
was on the prosecution to rebut this by adducing positive evidence that the
child aged between 10 and 14 knew full well that what he did was seriously
wrong. It is now said that this presumption is out of date and no longer accords
with the changing conditions of society. What looks like a usurpation of the
role of Parliament will hopefully be reconsidered on an appeal to the House of
The Divisional Court's reasoning that the presumption dates from a time
when the criminal law was altogether more draconian in its treatment of
children is somewhat ironic bearing in mind the proposed introduction soon of
secure training centres. Similar themes to those emerging from the Bulger case
apply to the proposed introduction of these centres for offenders aged between
12 and 14. The centres have been authorised by the Criminal Justice and Public
Order Act which have just completed its course through Parliament. Their
appearance is a retrograde step of a high order and is based on outmoded
thinking which was discredited years ago.
The legislation provides for five centres to be built and run by one or more private companies. The centres come under the Prison Service. Each centre will hold 40 children, each of whom will ave
committed at least three offences, for up to a year. A spartan regime is promised. Sites for the centres include old detention centres and one next to an immigration detention centre. Families will have difficulty reaching the sites by public transport. All the available evidence points to the centres being
plagued by bullying and self-harm and generating more offending. The draft Rules for these institutions have been powerfully criticised by Frances Crook, director of the Howard League for Penal Reform (the Guardian, July 20, 1994). She noted that the original draft for the rules used
the word "children". This was apparently unacceptable to ministers and was altered to "trainers". The rules as to punishment, restraint, visiting and family contact, and communications with outside the centres are unacceptable by the standards of the Children Act and regulations for residential care and by the European Convention on Human Rights. No lessons have been learnt from recent scandals.
The failings of the criminal justice system are unfortunately not restricted to
alleged and actual offenders. The treatment of child victims in the criminal
courts is eloquent evidence of the prevalent tendency to suppress the fact of
childhood as a relevant factor. Many adults view the prospect of giving
evidence in court with trepidation. It is not surprising that the anxiety is
multiplied in the case of children. The Pigot Committee on Video Evidence
recommended in 1989 that child witnesses should not have to attend court. It
noted that "The confrontation with the accused, the stress and embarrassment
of speaking in public, especially about sexual matters, the urgent demands of
cross-examination, the overwhelming nature of courtroom formalities and the
sense of insecurity and uncertainty make giving evidence in court a harmful,
oppressive and often traumatic experience."
Pigot recommended an initial videotaped interview which police would
show to the suspect. Later there would be a preliminary hearing before a judge
in chambers, again recorded on videotape, when the defence could
cross-examine the child. The two tapes would replace the child's live evidence.
The proposal was supported by, among others, the NSPCC, the Law Society,
The Criminal Bar Association, and the Council of Circuit Judges. The Criminal
Justice Act 1991, however, put a half-baked scheme in its place. This permits
video evidence of the child's evidence in chief so long as the child attends the
trial for cross-examination.
Attempts to amend the new Criminal Justice and Public Order Act to
implement the full Pigot recommendations failed. One does not need to know
of recorded instances of children, while giving evidence, breaking down in
tears, vomiting, having asthma attacks and, in at least one case, an epileptic fit
to be aware of the urgent need to, take children out of the courtroom.
RELEVANCE OF CHILDHOOD
Recent trends are, therefore, very disturbing. An increasingly reactionary
approach in the criminal justice system is leading to the victimization of
children. The relevance of childhood and the special need for protection is well
recognised in civil law. It is ironic that in circumstances in which the
disabilities of childhood need more not less recognition, the often politically
motivated agenda is geared towards the equating of the child with the fully
responsible adult. Those who produced the Children Act 1989 and the
ratification of the United Nations Convention on the Rights of the Child,
however belatedly, should as a matter of urgency think again.
This is also an area where the previous insularity of the approach should be
reconsidered. While we seem to go backwards, other countries appear to
progress. Political complacency and the return to previously discredited ideas,
spurred on by so-called public opinion, is no substitute for a thorough
consideration of the more enlightened approaches in other countries
particularly in Europe. The same wise judge also observed that children are a
country's most valuable asset for the future. This should not be lost sight of
even if some of them may be in need of care and protection.
Allan Levy Q.C.
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