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CASE OF V. v.
THE UNITED KINGDOM
(Application no. 24888/94)
JUDGMENT
STRASBOURG
16 December
1999
In the case of V. v. the United
Kingdom,
The European Court of Human Rights, sitting, in accordance with
Article 27 of the Convention for the Protection of Human Rights
and
Fundamental Freedoms (“the Convention”), as amended by
Protocol No. 11[1], and the
relevant provisions of the Rules of Court2, as a Grand Chamber
composed of the following judges:
Mr L. WILDHABER,
President,
Mrs E. PALM,
Mr C.L. ROZAKIS,
Mr A. PASTOR
RIDRUEJO,
Mr G. RESS,
Mr J. MAKARCZYK,
Mr P. KūRIS,
Mr R.
TüRMEN,
Mr J.-P. COSTA,
Mrs F. TULKENS,
Mr C.
BîRSAN,
Mr P. LORENZEN,
Mr M. FISCHBACH,
Mr V.
BUTKEVYCH,
Mr J. CASADEVALL,
Mr A.B. BAKA,
Lord REED, ad hoc
judge,
and also of Mr P.J. MAHONEY, Deputy Registrar,
Having
deliberated in private on 15 September and 24 November 1999,
Delivers the
following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the
Government of the United Kingdom of Great Britain and Northern Ireland
(“the
Government”) on 4 March 1999 and by the European
Commission of Human Rights (“the Commission”) on 6 March
1999,
within the three-month period laid down by former Articles 32 § 1 and 47 of
the Convention. It originated in an application
(no. 24888/94) against the
United Kingdom lodged with the Commission under former Article 25 by a British
national, “V.”,
on 20 May 1994. The applicant asked the Court not to
reveal his identity.
The object of the Government’s application and the
Commission’s request was to obtain a decision as to whether the facts
of
the case disclosed a breach by the respondent State of its obligations under
Articles 3, 5, 6 and 14 of the Convention.
2. In accordance with
the provisions of Article 5 § 4 of Protocol No. 11 taken together with
Rules 100 § 1 and
24 § 6, a panel of the Grand Chamber decided on 31
March 1999 that the case would be examined by the Grand Chamber of the
Court. The Grand Chamber included ex officio Sir Nicolas Bratza, the
judge elected in respect of the United Kingdom (Article 27 § 2 of
the Convention and
Rule 24 § 4), Mr L. Wildhaber, the President of the
Court, Mrs E. Palm and Mr C.L. Rozakis, the Vice-Presidents of the Court,
and Mr
G. Ress, Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents of
Sections (Article 27 § 3 of the Convention
and Rule 24 §§ 3 and 5
(a)). The other members appointed to complete the Grand Chamber were Mr A.
Pastor Ridruejo, Mr G.
Bonello, Mr J. Makarczyk, Mr P. Kūris, Mr R.
Türmen, Mrs F. Tulkens, Mrs V. Strážnická, Mr
C. Bîrsan, Mr P. Lorenzen and Mr V. Butkevych
(Rule 24 § 3). Subsequently Sir Nicolas Bratza, who had
taken
part in the Commission’s examination of the case, withdrew from
sitting in the Grand Chamber (Rule 28). The Government accordingly
appointed
Lord Reed to sit as an ad hoc judge (Article 27 § 2 of the
Convention and Rule 29 § 1). Later, Mr A.B. Baka, substitute judge,
replaced Mr Bonello, who
was unable to take part in the further consideration of
the case (Rule 24 § 5 (b)).
3. On 23 June 1999 the President
decided to deny public access to all documents filed with the Court by the
Government
and the applicant and the Court decided to hold the hearing in
private (Rule 33 §§ 2 and 3).
4. On 1 June 1999 the
President granted leave to the non-governmental organisation Justice and to Mr
R. Bulger and Mrs
D. Fergus, the parents of the child who had been murdered by
T. and the applicant (see paragraph 7 below), to submit written comments
in
connection with the case (Article 36 § 2 of the Convention and Rule 61
§ 3). On 6 September 1999 the President granted
leave to the victim’s
parents to attend the hearing and to make oral submissions to the Court (Rule 61
§ 3).
5. The hearing took place in the Human Rights Building,
Strasbourg, on 15 September 1999, jointly with that in the
case of T. v.
the United Kingdom (application no. 24724/94).
There appeared before the Court:
(a) for the Government
Mr H. LLEWELLYN, Foreign and
Commonwealth Office, Agent,
Mr D. PANNICK QC,
Barrister-at-Law,
Mr M. SHAW, Barrister-at-Law, Counsel,
Mr S.
BRAMLEY, Home Office,
Mr J. LANE, Home Office,
Mr T. MORRIS, HM Prison
Service, Advisers;
(b) for the applicant T.
Mr B. HIGGS QC,
Barrister-at-Law,
Mr J. NUTTER, Barrister-at-Law, Counsel,
Mr D.
LLOYD, Solicitor;
(c) for the applicant V.
Mr E. FITZGERALD QC,
Barrister-at-Law,
Mr B. EMMERSON, Barrister-at-Law, Counsel,
Mr J.
DICKINSON, Solicitor,
Mr T. LOFLIN, Attorney, Adviser;
(d) for the victim’s parents
Mr R. MAKIN,
Solicitor, Counsel for Mr Bulger,
Mr S. SEXTON, Solicitor, Counsel
for Mrs Fergus,
Mrs M. MONTEFIORE, Adviser.
The Court heard
addresses by Mr Fitzgerald, Mr Higgs, Mr Makin, Mr Sexton and Mr Pannick,
and also Mr Pannick’s reply to
a question put by one of its
members.
6. On 24 November 1999 Mr J. Casadevall, substitute
judge, replaced Mrs Strážnická, who was unable to
take part
in the further consideration of the case (Rule 24 § 5 (b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The trial
1. The offence
7. The applicant was born in
August 1982.
On 12 February 1993, when he was ten years old, he and another
ten-year-old boy, “T.” (the applicant in case no. 24724/94),
had
played truant from school and abducted a two-year-old boy from a shopping
precinct, taken him on a journey of over two miles
and then battered him to
death and left him on a railway line to be run over.
2. The trial process
8. The applicant and T.
were arrested in February 1993 and detained pending
trial.
9. Their trial took place over three weeks in November
1993, in public, at Preston Crown Court before a judge and twelve
jurors. In the
two months preceding the trial, each applicant was taken by social workers to
visit the courtroom and was introduced
to trial procedures and personnel by way
of a “child witness pack” containing books and games.
The trial
was preceded and accompanied by massive national and international publicity.
Throughout the criminal proceedings, the arrival
of the defendants was greeted
by a hostile crowd. On occasion, attempts were made to attack the vehicles
bringing them to court.
In the courtroom, the press benches and public gallery
were full.
The trial was conducted with the formality of an adult criminal
trial. The judge and counsel wore wigs and gowns. The procedure was,
however,
modified to a certain extent in view of the defendants’ age. They were
seated next to social workers in a specially
raised dock. Their parents and
lawyers were seated nearby. The hearing times were shortened to reflect the
school day (10.30 a.m.
to 3.30 p.m., with an hour’s lunch break), and a
ten-minute interval was taken every hour. During adjournments the defendants
were allowed to spend time with their parents and social workers in a play area.
The judge made it clear that he would adjourn whenever
the social workers or
defence lawyers told him that one of the defendants was showing signs of
tiredness or stress. This occurred
on one occasion.
10. At the
opening of the trial on 1 November 1993 the judge made an order under section 39
of the Children and Young Persons
Act 1933 (see paragraph 32 below) that there
should be no publication of the names, addresses or other identifying details of
the
applicant or T. or publication of their photographs.
On the same day, the
applicant’s counsel made an application for a stay of the proceedings, on
the grounds that the trial would
be unfair due to the nature and extent of the
media coverage. After hearing argument, the judge found that it was not
established
that the defendants would suffer serious prejudice to the extent
that no fair trial could be held. He referred to the warning that
he had given
to the jury to put out of their minds anything which they might have heard or
seen about the case outside the courtroom.
11. Dr Bentovim, of the
Great Ormond Street Hospital for Children, interviewed the applicant and his
parents on behalf
of the defence in September 1993, although he did not give
evidence at the trial. He found that V. showed post-traumatic effects
and
extreme distress and guilt, with fears of punishment and terrible retribution.
V. found it very difficult and distressing to
think or talk about the events in
question and it was not possible to ascertain many aspects. The doctor found
that he showed evidence
of immaturity, behaving in many ways like a younger
child emotionally, and recommended that, whatever happened, he was likely to
need therapeutic care in a residential context.
12. During the
trial, the prosecution presented evidence for the purpose of establishing that
the two defendants were criminally
responsible for their actions in that they
knew that what they were doing was wrong (see paragraph 29 below).
The court
heard evidence from Dr Susan Bailey, a consultant psychiatrist from the
Adolescent Forensic Service of the Home Office,
who had written a report on the
applicant on behalf of the Crown. Dr Bailey gave evidence that the applicant
presented as a child
of average intelligence, and would have been able in
February 1993 to distinguish between right and wrong. He would have known that
it was wrong to take a child from his mother, injure him and leave him on a
railway line. She had seen the applicant on a number
of occasions. On each
occasion, he had cried inconsolably and shown signs of distress. He was not able
to talk about the events in
issue in any useful way.
The prosecution also
called the headmistress at the school attended by the two boys. She stated that
from the ages of four and five
children were aware that it was wrong to strike
another child with a weapon. She stated that T. and the applicant would have
been
aware that what they were doing was wrong. Another teacher gave evidence to
the same effect.
13. In addition, evidence was given by persons
who had witnessed T. and the applicant in the shopping centre from which
the
two-year-old boy was taken and who had seen the three boys at various points
between the shopping centre and the vicinity of
the railway line, where the body
was later found. The tapes of the interviews of the police with T. and the
applicant were replayed
in court. Neither the applicant nor T. gave
evidence.
14. In his summing-up to the jury the trial judge noted
that witnesses had arrived in court in a blaze of publicity and
many had faced a
bevy of photographers. They had had to give evidence in a large court packed
with people and not surprisingly several
of them were overcome with emotion and
some had had difficulty in speaking audibly. This was one of the factors to be
borne in mind
in assessing their evidence. He instructed the jury, inter
alia, that the prosecution had to prove beyond reasonable doubt, in
addition to the ingredients of the offences charged, that the applicant
and T.
knew that what they were doing was wrong.
15. On 24 November 1993
the jury convicted T. and the applicant of murder and abduction. Neither
applicant made any appeal
to the Court of Appeal against his
conviction.
16. Following their conviction, the judge modified the
order under section 39 of the 1933 Act (see paragraph 10 above)
to allow the
applicant and T.’s names, but no other details, to be published. The
following day – 25 November 1993
– their names, photographs and
other particulars were published in newspapers throughout the country. On 26
November 1993 the
judge granted an injunction restraining, inter alia,
the publication of the addresses where the boys were being detained or any other
detail which could lead to information about their
whereabouts, care or
treatment being revealed.
3. The effect of the trial on the
applicant
17. In January 1995 the applicant was interviewed
again by Dr Bentovim for the purposes of the judicial review proceedings
(see below). The doctor noted, inter alia, that V. was suffering from
very high levels of fear that he would be attacked or punished for his actions.
When the trial was mentioned,
the applicant had described his sense of shock
when he had seen the public being let in and his considerable distress when his
name
and photograph were published. He had been terrified of being looked at in
court and had frequently found himself worrying what people
were thinking about
him. Most of the time he had not been able to participate in the proceedings and
had spent time counting in his
head or making shapes with his shoes because he
could not pay attention or process the whole proceedings. He did not follow when
he heard his and T.’s interviews with the police being played in court and
he recalled crying at that time.
Dr Bentovim commented that:
“In my view, because of his immaturity, and his age when the act was
committed and when he was tried, [V.] did not have the
capacity to fully take in
the process of the trial except for the major actions for which he was
responsible. ... [W]hether ... he
had an understanding of the situation such
that he could give an informed instruction to his lawyer to act on his behalf
... is,
in my view, very doubtful given his immaturity. Although he was
chronologically over the age of ten at the time of his action, I
am in no doubt
that he was less mature than this as far as psychological or emotional age was
concerned.”
18. In a report by Dr Bailey (see paragraph 12
above) dated November 1997, it was noted that until the trial the events
during
the offence were with the applicant ninety-eight per cent of the time and
especially every night during the trial. It took
him twelve months to get over
the trial itself. He still thought of it every night. He had been most scared
when in the magistrates’
court on the first occasion. After the first
three days at the Crown Court he had felt all right because he played with his
hands
and stopped listening. He had to stop listening because they played the
police interviews with him and T. in front of everyone as
if they were shouting
it out. The press were laughing at him and he could tell from the faces of the
jury that they would find him
guilty. He still did not understand why the trial
had been so long.
19. In a report on the applicant dated February
1998, Sir Michael Rutter, Professor of Child Psychiatry at the Institute
of
Psychiatry, University of London, observed:
“I have also been asked to comment on the likely mental and emotional effects on children in general, and on [V.] in particular, of the prolonged trial process being in public. In my opinion there are two negative aspects of the trial process as they apply to children of [V.’s] age. First, one serious consequence of the long time involved in a trial means that there is an inevitable delay in providing the psychological care and therapeutic help that is needed. A child of ten has many years of psychological development still to come and it is most important that there is not a prolonged hiatus when this is impeded by the trial process. In particular, when children have committed a serious act, such as killing another child, it is most important that they are able to come to terms with the reality of what they have done and with all that that means. That is not possible at a time when a trial is still under way and guilt has still to be decided by the court. Thus, I conclude that the very prolonged nature of the trial process is bound to be deleterious for a child as young as ten or eleven (or even older).
The fact that the trial process is held in public and that the negative public reactions (often extreme negative reactions) are very obvious is a further potentially damaging factor. While it is crucially important for young people who have committed a serious act to accept both the seriousness of what they have done and the reality of their own responsibilities in the crime, this is made more difficult by the public nature of the trial process ...”
B. The sentence
1. Detention during Her Majesty’s pleasure and the
setting of the tariff
20. Following the applicant and
T.’s conviction for murder, the judge sentenced them, as required by law,
to detention
during Her Majesty’s pleasure (see paragraph 36 below).
He
subsequently recommended that a period of eight years be served by the boys to
satisfy the requirements of retribution and deterrence
(the “tariff”
– see paragraphs 40-42 below). He commented that he could not determine
the boys’ relative
culpability, and stated:
“Very great care will have to be taken before either defendant is allowed out into the general community. Much psychotherapeutic, psychological and educational investigation and assistance will be required.
Not only must they be fully rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others.
... If the defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been eighteen years.
However these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard, or suffered abuse, drunkenness and violence. I have no doubt that both boys saw video films frequently showing violent and aberrant activities.
In my judgment the appropriate length of detention necessary to meet the
requirement of retribution and general deterrence for the
murder, taking into
account all its appalling circumstances and the age of the defendants when it
was committed is eight years...
. Eight years is ‘very very many
years’ for a ten or eleven year old. They are now children. In eight
years’ time
they will be young men.”
21. The Lord
Chief Justice recommended a tariff of ten years. The applicant’s
representatives made written representations
to the Home Secretary, who was to
fix the tariff period.
22. By a letter dated 16 June 1994, the
Secretary of State informed the applicant that the family of the deceased child
had submitted a petition signed by 278,300 people urging him to take account of
their belief that the boys should never be released,
accompanied by 4,400
letters of support from the public; that a Member of Parliament had submitted a
petition signed by 5,900 people
calling for a minimum of twenty-five years to be
served; that 21,281 coupons from the Sun newspaper supporting a whole
life tariff and a further 1,357 letters and small petitions had been received of
which 1,113 wanted
a higher tariff than the judicial recommendations.
The
applicant’s solicitors were given an opportunity to submit further
representations to the Secretary of State.
23. By a letter dated
22 July 1994, the Secretary of State informed the applicant that he should serve
a period of fifteen
years in respect of retribution and deterrence. The letter
stated, inter alia:
“In making his decision, the Secretary of State had regard to the circumstances of the offence, the recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also has regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice.
The Secretary of State takes fully into account the fact that you were only ten years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult.
The Secretary of State notes the representations which were made on your behalf regarding the relative culpability of yourself and your co-defendant. The Secretary of State notes that the trial judge was unable to determine this. The Secretary of State has reached the same conclusion.
The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be eight years, and ten years respectively. The trial judge added that if the defendants had been adults then the appropriate tariff would have been eighteen years. The Secretary of State has had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of twenty-five years and not eighteen years as suggested by the trial judge.
For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of fifteen years in your case. The Secretary of State is satisfied that such a tariff is consistent with the tariffs fixed in other cases.
The Secretary of State is prepared to consider any fresh representations
which you or your representatives might wish to make about
the length of the
tariff and, in the light of such fresh representations, to reduce the tariff if
appropriate.”
24. Dr Bentovim’s January 1995 report
(see paragraph 17 above) stated that the applicant had been distraught when
told
of the eight and ten year recommendations. When he was informed that a
fifteen-year tariff had been fixed, he was devastated.
He made comments that he
would never be let out and had a preoccupation that he was like Myra
Hindley[1]. He felt that his life was
no longer worth living and there was no point going on.
2. The judicial review proceedings
25. The
applicant instituted judicial review proceedings challenging, inter alia,
the tariff which had been set by the Secretary of State as being
disproportionately long and fixed without due regard to the needs
of
rehabilitation. Leave was granted on 7 November 1994.
26. On 2 May
1996 the Divisional Court upheld part of the applicant’s claims. On 30
July 1996 the Court of Appeal
dismissed the appeal of the Secretary of State. On
12 June 1997 the House of Lords by a majority dismissed the Secretary of
State’s
appeal and allowed the applicant’s cross-appeal. A majority
of the House of Lords found that it was unlawful for the Secretary
of State to
adopt a policy, in the context of applying the tariff system, which even in
exceptional circumstances treated as irrelevant
the progress and development of
a child who was detained during Her Majesty’s pleasure. A majority of the
House of Lords also
held that in fixing a tariff the Secretary of State was
exercising a power equivalent to a judge’s sentencing power and that,
like
a sentencing judge, he was required to remain detached from the pressure of
public opinion. Since the Secretary of State had
misdirected himself in giving
weight to the public protests about the level of the applicant’s tariff
and had acted in a procedurally
unfair way, his decision had been rendered
unlawful (see further paragraph 43 below). The tariff set by the Secretary
of State
was accordingly quashed.
27. On 10 November 1997 the
Secretary of State informed Parliament that, in the light of the House of
Lords’ judgment,
he had adopted a new policy in relation to young
offenders convicted of murder and sentenced to detention during Her
Majesty’s
pleasure, pursuant to which, inter alia, he would keep
the tariff initially set under review in the light of the offender’s
progress and development. The Secretary
of State invited the applicant’s
representatives to make representations to him with regard to the fixing of a
fresh tariff.
28. At the time of the adoption of this judgment, no
decision has been taken in respect of the applicant’s tariff.
The
Government in their memorial informed the Court that although the applicant V.
had submitted representations regarding the appropriate
length of tariff,
similar representations were still awaited in respect of T., and the Home
Secretary was in addition seeking independent
psychiatric advice regarding both
detainees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Age of criminal
responsibility
29. Pursuant to section 50 of the Children and
Young Persons Act 1933 as amended by section 16(1) of the Children and Young
Persons Act 1963 (“the 1933 Act”), the age of criminal
responsibility in England and Wales is ten years, below which
no child can be
found guilty of a criminal offence. The age of ten was endorsed by the Home
Affairs Select Committee (composed of
Members of Parliament) in October 1993
(Juvenile Offenders, Sixth Report of the Session 1992-93, Her
Majesty’s Stationary Office). At the time of the applicant’s trial,
a child
between the ages of ten and fourteen was subject to a presumption that
he did not know that what he was doing was wrong (doli incapax).
This presumption had to be rebutted by the prosecution proving beyond reasonable
doubt that, at the time of the offence, the child
knew that the act was wrong as
distinct from merely naughty or childish mischief (C. (a minor) v. the
Director of Public Prosecutions [1996] Appeal Cases 1).
The doli
incapax presumption has since been abolished with effect from 30 September
1998 (section 34 of the Crime and Disorder Act 1998).
B. Mode of trial for child
defendants
30. Pursuant to section 24 of the
Magistrates’ Courts Act 1980, children and young persons under eighteen
years must
be tried summarily in the magistrates’ court, where the trial
usually takes place in the specialist youth court, which has
an informal
procedure and from which the general public are excluded. The exceptions are
children and young persons charged with
murder, manslaughter or an offence
punishable if committed by an adult with fourteen or more years’
imprisonment, who are tried
in the Crown Court before a judge and jury.
C. Protection of child defendants from
publicity
31. Where a child is tried in the youth court,
section 49 of the 1933 Act imposes an automatic prohibition restraining
the
media from reporting the child’s name or personal details or from
publishing his photograph or any other information which
might lead to his
identification. The court has a discretion to dispense with the restriction
following conviction if it considers
it in the public interest to do
so.
32. Where a child is tried in the Crown Court, there is no
restriction on the reporting of the proceedings unless the trial
judge makes an
order under section 39 of the 1933 Act, which provides:
“(1) In relation to any proceedings in any court ... the court may direct that –
(a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the direction of the court.
(2) Any person who publishes any matter in contravention of any
such direction shall on summary conviction be liable in
respect of each offence
to a fine ...”
This provision was extended by section 57(4) of the
Children and Young Persons Act 1963 to cover sound and television
broadcasts.
The Court of Appeal interpreting section 39 has held that, since
Parliament intentionally distinguished between trial in a youth court,
where
there is a presumption against publicity, and trial in the Crown Court, where
the presumption is reversed, there should be
a good reason for the making of an
order under section 39 of the 1933 Act (R. v. Lee (a minor) 96 Criminal
Appeal Reports 188).
D. Fitness to plead and ability to comprehend criminal
proceedings
33. An accused is “unfit to plead” if
by reason of a disability, such as mental illness, he has “insufficient
intellect to instruct his solicitors and counsel, to plead to the indictment, to
challenge jurors, to understand the evidence, and
to give evidence” (R.
v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a
defendant is fit to plead must be decided by a jury upon the written
or oral
evidence of at least two medical experts. Where a jury has found the defendant
unfit to plead, either the same or another
jury may be required to proceed with
the trial and decide whether the accused did the act or made the omission
charged against him
as the offence, in which case the court may make a hospital
order against him (Criminal Procedure (Insanity) Act 1964, sections 4,
4A and
5). Alternatively, the trial may be postponed indefinitely until the accused is
fit to plead.
34. In the case of Kunnath v. the State
([1993] 1 Weekly Law Reports 1315), the Privy Council quashed the
conviction of an uneducated peasant from Kerala in southern
India who had been
sentenced to death for murder after a trial in Mauritius conducted in a language
he did not understand and where
the evidence was not translated for him by an
interpreter. The Privy Council stated, inter alia:
“It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. The basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and if so, upon what matters relevant to the case against him.”
E. Detention during Her Majesty’s pleasure
1. Nature of detention during Her Majesty’s
pleasure
35. In England and Wales, adults convicted of murder
are subject to mandatory life imprisonment (Murder (Abolition of Death
Penalty)
Act 1967). Adults convicted of certain violent or sexual offences, for example
manslaughter, rape or robbery, may be sentenced
to life imprisonment at the
discretion of the trial judge, if he or she considers that (i) the offence is
grave and (ii) there are
exceptional circumstances which demonstrate that the
offender is a danger to the public and that it is not possible to say when that
danger will subside.
36. Offenders under the age of eighteen who
are convicted of murder are automatically to be detained during Her
Majesty’s
pleasure, in accordance with section 53(1) of the Children and
Young Persons Act 1933 (as amended), which provides:
“A person convicted of an offence who appears to the court to have been
under the age of eighteen years at the time the offence
was committed shall not,
if he is convicted of murder, be sentenced to imprisonment for life nor shall
sentence of death be pronounced
on or recorded against any such person but in
lieu thereof the court shall ... sentence him to be detained during Her
Majesty’s
pleasure, and if so sentenced he shall be liable to be detained
in such a place and under such conditions as the Secretary of State
may
direct.”
Until the age of eighteen a child or young person detained
during Her Majesty’s pleasure will be held at a children’s
home or
other institution providing facilities appropriate to his age. At the age of
eighteen the detainee becomes liable to be transferred
to a Young
Offenders’ Institution and, at the age of twenty-one, to detention in the
same institution as an adult sentenced
to life imprisonment for
murder.
37. At the time of the applicant’s conviction, the
effect of the sentence of detention during Her Majesty’s
pleasure was that
the child or young person was detained for an indeterminate period, the duration
of which was wholly within the
discretion of the Home Secretary. The Secretary
of State had a discretion to refer the case of a detained child to the Parole
Board
for its advice and, if so advised by the Parole Board, had a discretion to
decide to order the child’s release (Criminal Justice
Act 1991 (“the
1991 Act”), sections 35(2) and (3) and 43(2); see the speech of Lord
Browne-Wilkinson in the House of
Lords, R. v. Secretary of State for the Home
Department, ex parte V. and T. [1998] Appeal Cases 407 at p. 492A-F,
hereafter “Ex parte V. and T.”).
38. On 1
October 1997 section 28 of the Crime (Sentences) Act 1997 was brought into force
in order to implement the judgments
of the European Court in the Hussain and
Singh cases (Hussain v. the United Kingdom judgment of 21 February 1996,
Reports of Judgments and Decisions 1996-I, p. 252, and Singh v. the
United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 280). The
section provides that, after the tariff period has expired (see paragraphs 40-42
below), it shall be for the
Parole Board, and not, as previously, for the
Secretary of State, to decide whether it is safe to release on licence an
offender
serving a sentence of detention during Her Majesty’s pleasure for
an offence of murder committed before the age of eighteen.
39. A
person detained during Her Majesty’s pleasure who is released on licence
is liable to be recalled throughout
his or her life, subject to the decision of
the Parole Board.
2. The “tariff”
40. Over the
years, the Secretary of State has adopted a “tariff” policy in
exercising his discretion whether
to release offenders sentenced to life
imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan
on 30 November
1983 (Hansard (House of Commons Debates)
cols. 505-507). In essence, the tariff approach involves breaking down the
life sentence into component
parts, namely retribution, deterrence and
protection of the public. The “tariff” represents the minimum period
which
the prisoner will have to serve to satisfy the requirements of retribution
and deterrence. The Home Secretary will not refer the
case to the Parole Board
until three years before the expiry of the tariff period, and will not exercise
his discretion to release
on licence until after the tariff period has been
completed (per Lord Browne-Wilkinson, Ex parte V. and T., op.
cit., at pp. 492G-493A).
41. Pursuant to section 34 of the
1991 Act, the tariff of a discretionary life prisoner is fixed in open court by
the trial
judge after conviction. After the tariff has expired, the prisoner may
require the Secretary of State to refer his case to the Parole
Board which has
the power to order his release if it is satisfied that it is no longer necessary
to detain him for the protection
of the public.
42. A different
regime, however, applies under the 1991 Act to persons detained during Her
Majesty’s pleasure or
serving a mandatory sentence of life imprisonment.
In relation to these prisoners, the Secretary of State decides the length of the
tariff. The view of the trial judge is made known to the prisoner after his
trial, as is the opinion of the Lord Chief Justice. The
prisoner is afforded the
opportunity to make representations to the Secretary of State who then proceeds
to fix the tariff and is
entitled to depart from the judicial view (R. v.
Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal
Cases 531; and see the Home Secretary, Mr Michael Howard’s, policy
statement to Parliament, 27 July 1993,
Hansard (House of Commons Debates)
cols. 861-864).
43. In the judicial review proceedings brought by
the applicant (Ex parte V. and T., op. cit.), the House of Lords gave
consideration, inter alia, to the nature of the tariff-fixing exercise in
respect of sentences of detention during Her Majesty’s pleasure.
Lord
Steyn held:
“The starting point must to be inquire into the nature of the power to
fix a tariff which the Home Secretary exercises. Writing
on behalf of the Home
Secretary the Home Office explained that: ‘The Home Secretary must ensure
that, at all times, he acts
with the same dispassionate fairness as a sentencing
judge.’ The comparison between the position of the Home Secretary, when
he
fixes a tariff representing the punitive element of the sentence, and the
position of the sentencing judge is correct. In fixing
a tariff the Home
Secretary is carrying out, contrary to the constitutional principle of the
separation of powers between the executive
and the judiciary, a classic judicial
function. Parliament entrusted the underlying statutory power, which entailed a
discretion
to adopt a policy and fix a tariff, to the Home Secretary. But the
power to fix a tariff is nevertheless equivalent to a judge’s
sentencing
power.”
Lord Hope held:
“But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ...
If the Secretary of State wishes to fix a tariff for the case – in
order to replace the views of the judiciary with a view of
his own about the
length of the minimum period – he must be careful to abide by the same
rules ...”
Lord Hope also commented on the imposition of a tariff on a
child offender:
“A policy which ignores at any stage the child’s development and
progress while in custody as a factor relevant to his
eventual release date is
an unlawful policy. The practice of fixing the penal element as applied to adult
mandatory life prisoners,
which has no regard to the development and progress of
the prisoner during this period, cannot be reconciled with the requirement
to
keep the protection and welfare of the child under review throughout the period
while he is in custody.”
Lord Goff stated, inter alia:
“... if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when doing so, he is under a duty to act under the same restraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful.
In so holding I wish to draw a distinction in the present context between
public concern of a general nature with regard to, for example,
the prevalence
of certain types of offence, and the need that those who commit such offences
should be duly punished; and public
clamour that a particular offender whose
case is under consideration should be singled out for severe punishment
...”
44. On 10 November 1997 the Secretary of State
announced that, in the light of the House of Lords’ decision, he would
adopt the following policy in respect of fixing the tariff for young offenders
convicted of murder and detained during Her Majesty’s
pleasure:
“I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any case of a person convicted under section 53(1) of the Children and Young Persons Act 1933. I shall then set an initial tariff with that advice, and the offender’s personal circumstances, in mind; I shall continue to invite representations on the prisoner’s behalf and give reasons for decisions.
Officials in my Department will receive annual reports on the progress and development of young people sentenced under section 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers.
When half of the initial tariff period has expired, I, or a Minister acting on my behalf, will consider a report on the prisoner’s progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate ...”
III. RELEVANT INTERNATIONAL TEXTS
A. United Nations Standard Minimum Rules for the Administration
of Juvenile Justice (“the Beijing Rules”)
45. The
Beijing Rules were adopted by the United Nations General Assembly on 29 November
1985. These Rules are not binding
in international law; in the Preamble, States
are invited, but not required, to adopt them. They provide, as relevant:
“4. Age of criminal responsibility
4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.
Commentary
The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.).
Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable internationally.
...
8. Protection of privacy
8.1 The juvenile’s privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.
...
17. Guiding principles in adjudication and disposition
17.1 The disposition of the competent authorities shall be guided by the following principles:
(a) The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society;
(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
...
(d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.
...
Commentary
...
Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and future of the young person.
...”
B. The United Nations Convention on the Rights of the Child
(1989)
46. This treaty (hereafter “the UN
Convention”), adopted by the General Assembly of the United Nations on 20
November 1989, has binding force under international law on the Contracting
States, including all of the member States of the Council
of Europe.
Article
3 § 1 of the UN Convention states:
“In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative,
authoritative, or legislative bodies, the best interest of the child shall be a
primary consideration.”
Article 37 (a) and (b) provides:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ... ”
Article 40 provides, as relevant:
“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
2. To this end ... the States Parties shall, in particular, ensure that:
...
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
...
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for the dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
...”
C. Report on the United Kingdom by the Committee on the Rights
of the Child
47. In its concluding observations in respect of
the United Kingdom (CRC/C/15/add. 34) dated 15 February 1995, the Committee
set
up by the United Nations to monitor compliance with the UN Convention stated,
inter alia:
“35. The Committee recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child-oriented ...
36. More specifically, the Committee recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom ...”
D. International Covenant on Civil and Political Rights
(1966)
48. The Covenant provides in Article 14 § 4, which
broadly corresponds to Article 6 of the European Convention, that:
“In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.”
E. Recommendation no. R (87) 20 of the Committee of Ministers
of the Council of Europe
49. The above recommendation,
adopted by the Committee of Ministers on 17 September 1987, states, inter
alia:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors, and that the latter need specialised interventions and, where appropriate, specialised treatment, based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child;
Convinced that the penal system for minors should continue to be characterised by its objective of education and social integration ...;
...
Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules),
Recommends the governments of member states to review, if necessary, their legislation and practice with a view:
...
4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action;
5. to avoiding committing minors to adult courts, where juvenile courts exist;
...
8. to reinforcing the legal position of minors throughout the proceedings ... by recognising, inter alia:
...
the right of juveniles to respect for their private lives;
...”
IV. THE AGE OF CRIMINAL RESPONSIBILITY IN
EUROPE
50. The age of criminal responsibility is seven in Cyprus,
Ireland, Switzerland and Liechtenstein; eight in Scotland; thirteen
in France;
fourteen in Germany, Austria, Italy and many eastern European countries; fifteen
in the Scandinavian countries; sixteen
in Portugal, Poland and Andorra; and
eighteen in Spain, Belgium and Luxembourg.
PROCEEDINGS BEFORE THE COMMISSION
51. The applicant applied to
the Commission on 20 May 1994. He alleged that, in view of his young age, his
trial in public
in an adult Crown Court and the punitive nature of his sentence
constituted violations of his right not to be subjected to inhuman
or degrading
treatment or punishment as guaranteed under Article 3 of the European Convention
on Human Rights. He further complained
that he had been denied a fair trial in
breach of Article 6 of the Convention, that he had suffered discrimination in
breach of Article
14 in that a child aged younger than ten at the time of the
alleged offence would not have been held criminally responsible; that
the
sentence imposed on him of detention during Her Majesty’s pleasure
amounted to a breach of his right to liberty under Article
5; and that the fact
that a government minister, rather than a judge, was responsible for setting the
tariff violated his rights
under Article 6. Finally, he complained under Article
5 § 4 of the Convention that he had not had the opportunity to have the
continuing lawfulness of his detention examined by a judicial body, such as the
Parole Board.
52. The Commission declared the application (no.
24888/94) admissible on 6 March 1998 after a hearing. In its report of
4 December 1998 (former Article 31 of the Convention), it expressed the
opinion, by seventeen votes to two, that there had been
no violation of Article
3 of the Convention in respect of the applicant’s trial; by fourteen votes
to five, that there had
been a violation of Article 6 in respect of the
applicant’s trial; by fifteen votes to four, that no separate issue arose
under
Article 14 in respect of the applicant’s trial; by seventeen votes
to two, that there had been no violation of Articles 3 or
5 § 1 in respect
of the applicant’s sentence; by eighteen votes to one, that there had been
a violation of Article 6
in respect of the fixing of the applicant’s
sentence; and by eighteen votes to one, that there had been a violation of
Article
5 § 4. The full text of the Commission’s opinion and of the
six separate opinions contained in the report is reproduced
as an annex to this
judgment[1].
FINAL SUBMISSIONS TO THE COURT
53. In his memorial and at the
hearing, the applicant asked the Court to find violations of Article 3 of the
Convention
in respect of his trial and sentence, Article 6 § 1 in respect
of his trial and the tariff-setting procedure, Article 5 §
1 in respect of
the sentence of detention during Her Majesty’s pleasure and Article 5
§ 4 in respect of the absence of
any judicial review of the continuing
legality of his detention. He also asked the Court to award him the legal costs
and expenses
of the Strasbourg proceedings.
The Government asked the Court to
declare the applicant’s complaints regarding the trial inadmissible for
non-exhaustion of
domestic remedies and to find that there had been no violation
of the applicant’s Convention rights.
THE LAW
I. ISSUES UNDER THE CONVENTION RELATING TO THE TRIAL
A. The Government’s preliminary
objection
54. The Government submitted that the
applicant’s complaints under Articles 3 and 6 § 1 of the Convention
concerning
the trial were inadmissible since he had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention, which
states:
“The Court may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised
rules of
international law, and within a period of six months from the date on which the
final decision was taken.”
The Government pointed out that no complaint
had been made on behalf of the applicant, either before or during the trial or
on appeal,
to the effect that he had had difficulty in understanding or
participating in the proceedings or that the trial in public had amounted
to
inhuman and degrading treatment. They referred to the Privy Council’s
judgment in Kunnath v. the State (see paragraph 34 above) upon which,
they asserted, the applicant could have relied as demonstrating that English
law, like Article
6 § 1, required that a defendant be able to understand
and participate in criminal proceedings against him.
55. The
applicant denied that there had been available to him any effective remedy in
respect of his Convention complaints.
He submitted that if an application had
been made to stay the criminal proceedings against him, either it would have
failed because
the extent of his emotional and psychological disturbance was not
sufficient to satisfy the test of unfitness to plead (see paragraph
33 above)
or, in the event of such an application succeeding, the prosecution would not
have abandoned the case but would have sought
a postponement until the applicant
was fit, thus prolonging his anguish and that of his
family.
56. The Commission dismissed the Government’s
objection at both the admissibility and merits stages of its examination,
on the
basis that the matters about which the applicant complained under Articles 3 and
6 § 1 resulted from the English system
whereby juveniles aged ten and over
with sufficient maturity to tell right from wrong are tried for murder in the
Crown Court. It
considered that any application on V.’s behalf claiming
that this system should not be applied to him would have been unlikely
to have
succeeded.
57. The Court recalls that the rule of exhaustion of
domestic remedies referred to in Article 35 § 1 of the Convention
requires
applicants first to use the remedies provided by the national legal system, thus
dispensing States from answering before
the European Court for their acts before
they have had an opportunity to put matters right through their own legal
system. The rule
is based on the assumption that the domestic system provides an
effective remedy in respect of the alleged breach. The burden of
proof is on the
Government claiming non-exhaustion to satisfy the Court that an effective remedy
was available in theory and in practice
at the relevant time; that is to say,
that the remedy was accessible, capable of providing redress in respect of the
applicant’s
complaints and offered reasonable prospects of success.
However, once this burden of proof has been satisfied it falls to the applicant
to establish that the remedy advanced by the Government was in fact exhausted or
was for some reason inadequate and ineffective in
the particular circumstances
of the case or that there existed special circumstances absolving him or her
from the requirement (see
the Akdivar and Others v. Turkey judgment of 16
September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1210-11,
§§ 65-68).
58. The applicant complains under
Articles 3 and 6 § 1 of the Convention, that, inter alia, in view of
his youth, immaturity and state of emotional disturbance, his trial in public in
an adult Crown Court constituted inhuman
and degrading treatment and was unfair
because he was unable fully to participate. The Government rely upon the Privy
Council’s
judgment in Kunnath v. the State (see paragraph 34 above)
as establishing the existence of an effective remedy in respect of these
complaints.
59. The Court observes that in the Kunnath case the
Privy Council was concerned with the very different situation of an
accused
person who was unable to participate in the criminal proceedings against him
because they were conducted in a language which
he did not understand. It notes
the well-established rule of English criminal law that, in order to obtain a
stay of proceedings,
a defendant suffering from a disability such as mental
illness must establish before a jury that he is “unfit to plead”,
that is that he lacks the intellectual capacity to understand the plea of guilty
or not guilty, to instruct his solicitors and to
follow the evidence (see
paragraph 33 above). In addition, English law attributes criminal responsibility
to children between the
ages of ten and fourteen, subject, at the time of the
applicant’s trial, to the proviso that the prosecution had to prove beyond
reasonable doubt that, at the time of the alleged offence, the child understood
that his behaviour was wrong as distinct from merely
naughty (see paragraph 29
above). Finally, it is the rule that children over the age of ten accused of
murder, manslaughter and other
serious crimes are tried in public in the Crown
Court (see paragraph 30 above).
60. It is not suggested that the
applicant’s immaturity and level of emotional disturbance were sufficient
to satisfy
the test of unfitness to plead. Furthermore, the prosecution were
able to rebut the doli incapax presumption in respect of the applicant.
However, the Government have not referred the Court to any example of a case
where an accused
under a disability falling short of that required to establish
unfitness to plead has been able to obtain a stay of criminal proceedings
on the
grounds that he was incapable of fully participating in them, or where a child
charged with murder or another serious offence
has been able to obtain a stay on
the basis that trial in public in the Crown Court would cause him detriment or
suffering.
61. In these circumstances, the Court does not consider
that the Government have discharged the burden upon them of proving
the
availability to the applicant of a remedy capable of providing redress in
respect of his Convention complaints and offering reasonable
prospects of
success.
It follows that the Court dismisses the Government’s
preliminary objection.
B. Article 3 of the Convention
62. The
applicant submitted that his trial at Preston Crown Court amounted to inhuman
and degrading treatment within the
meaning of Article 3 of the Convention, which
provides:
“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
63. The applicant alleged that the
cumulative effect of the age of criminal responsibility, the accusatorial nature
of
the trial, the adult proceedings in a public court, the length of the trial,
the jury of twelve adult strangers, the physical lay-out
of the courtroom, the
overwhelming presence of the media and public, the attacks by the public on the
prison van which brought him
to court and the disclosure of his identity,
together with a number of other factors linked to his sentence (considered in
paragraphs 93-101
below) gave rise to a breach of Article
3.
64. He submitted that, at ten years old, the age of criminal
responsibility in England and Wales was low compared with
almost all European
countries; in the vast majority of European countries the minimum age of
responsibility was thirteen or higher
(see paragraph 50 above). He contended,
moreover, that there was a clear developing trend in international and
comparative law towards
a higher age of criminal responsibility, and referred in
this connection to Rule 4 of the Beijing Rules and to the recommendation
by
the Committee on the Rights of the Child that the United Kingdom should raise
the age of criminal responsibility (see paragraphs
45 and 47 above). He accepted
that it was in principle possible for a State to attribute criminal
responsibility to a child as young
as ten without violating that child’s
rights under Article 3. However, it was then incumbent on such a State to ensure
that
the procedures adopted for the trial and sentencing of such young children
were modified to reflect their age and vulnerability.
65. The
applicant reminded the Court that he was ten years old at the time he committed
the offence and eleven at the time
of trial, although there was psychiatric
evidence that he “functioned emotionally at far younger than his
chronological age”
(see paragraph 11 above). In addition, he had been
suffering from post-traumatic stress disorder at the time of the trial.
Nonetheless,
he had been subjected to the frightening and humiliating ordeal of
a public trial in an adult court, which had caused him significant
and lasting
psychological damage (see paragraphs 17-19 above). International human rights
law recognised that it was inappropriate
to try juveniles in public in an adult
court subject to an accusatorial procedure (see paragraphs 45-49
above).
66. The Government denied that the attribution of criminal
responsibility to the applicant and his trial in public in an
adult court
breached his rights under Article 3.
With regard to the age of criminal
responsibility, they submitted that the practice amongst the Contracting States
was very varied,
with ages ranging from seven in Cyprus, Ireland, Liechtenstein
and Switzerland, to eighteen in a number of other States. There were
no
international principles laying down a specific age for criminal responsibility:
Article 40 § 3 of the UN Convention required
States to adopt a minimum age
but imposed no specific such age. The Beijing Rules relied upon by the applicant
were not binding under
international law; the Preamble invited States to adopt
them but left it up to States to decide whether or not to do
so.
67. In any event, the Government contended that the applicant
was not subjected to inhuman or degrading treatment and referred
to a number of
modifications introduced to the trial process to protect the applicant and
prevent degrading treatment. Thus, the
hearing times had been adapted, the judge
had made it clear that he would adjourn at any time if either of the defendants
showed
signs of tiredness, the defendants were allowed to relax with their
parents during breaks, and were seated in the courtroom next
to their social
workers in a specially raised dock to enable them to see what was going
on.
68. The Commission in its report observed that there had been
no intention to inflict distress or humiliation on the applicant
through the
trial process. Moreover, whilst there was evidence that the criminal process had
caused the applicant distress, there
could be no doubt that a significant part
of this suffering was attributable to the fact that he had committed a horrific
crime and
was being brought to face the consequences. In these circumstances,
there had been no violation of Article 3.
69. The Court observes
at the outset that Article 3 enshrines one of the most fundamental values of
democratic society.
It prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the victim’s conduct
(see the Chahal v. the United Kingdom judgment of 15 November 1996,
Reports 1996-V, p. 1855, § 79). The nature of the crime committed by
T. and the applicant is, therefore, immaterial to the consideration
under
Article 3.
70. Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment
of this
minimum is, in the nature of things, relative; it depends on all the
circumstances of the case, such as the nature and context
of the treatment or
punishment, the manner and method of its execution, its duration, its physical
or mental effects and, in some
instances, the sex, age and state of health of
the victim (see, amongst many other examples, the Soering v. the United Kingdom
judgment
of 7 July 1989, Series A no. 161, p. 39, §
100).
71. Treatment has been held by the Court to be
“inhuman” because, inter alia, it was premeditated, was
applied for hours at a stretch and caused either actual bodily injury or intense
physical and mental suffering,
and also “degrading” because it was
such as to arouse in its victims feelings of fear, anguish and inferiority
capable
of humiliating and debasing them. In order for a punishment or treatment
associated with it to be “inhuman” or “degrading”,
the
suffering or humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with
a given form of legitimate
treatment or punishment (ibid.). The question whether the purpose of the
treatment was to humiliate or
debase the victim is a further factor to be taken
into account (see, for example, the Raninen v. Finland judgment of 16 December
1997, Reports 1997-VIII, pp. 2821-22, § 55), but the absence of
any such purpose cannot conclusively rule out a finding of a violation
of
Article 3.
72. The Court has considered first whether the
attribution to the applicant of criminal responsibility in respect of acts
committed when he was ten years old could, in itself, give rise to a violation
of Article 3. In doing so, it has regard to the principle,
well established in
its case-law that, since the Convention is a living instrument, it is legitimate
when deciding whether a certain
measure is acceptable under one of its
provisions to take account of the standards prevailing amongst the member States
of the Council
of Europe (see the Soering judgment cited above, p. 40, §
102; and also the Dudgeon v. the United Kingdom judgment of 22 October
1981,
Series A no. 45, and the X, Y and Z v. the United Kingdom judgment of
22 April 1997, Reports 1997-II).
73. In this
connection, the Court observes that, at the present time, there is not yet a
commonly accepted minimum age
for the attribution of criminal responsibility in
Europe. While most of the Contracting States have adopted an age-limit which is
higher than that in force in England and Wales, other States, such as Cyprus,
Ireland, Liechtenstein and Switzerland, attribute criminal
responsibility from a
younger age. Moreover, no clear tendency can be ascertained from examination of
the relevant international
texts and instruments (see paragraphs 45-46 above).
Rule 4 of the Beijing Rules which, although not legally binding, might provide
some indication of the existence of an international consensus, does not specify
the age at which criminal responsibility should
be fixed but merely invites
States not to fix it too low, and Article 40 § 3 (a) of the UN Convention
requires States Parties
to establish a minimum age below which children shall be
presumed not to have the capacity to infringe the criminal law, but contains
no
provision as to what that age should be.
74. The Court does not
consider that there is at this stage any clear common standard amongst the
member States of the
Council of Europe as to the minimum age of criminal
responsibility. Even if England and Wales is among the few European
jurisdictions
to retain a low age of criminal responsibility, the age of ten
cannot be said to be so young as to differ disproportionately from
the age-limit
followed by other European States. The Court concludes that the attribution of
criminal responsibility to the applicant
does not in itself give rise to a
breach of Article 3 of the Convention.
75. The second part of the
applicant’s complaint under Article 3 concerning the trial relates to the
fact that the
criminal proceedings took place over three weeks in public in an
adult Crown Court with attendant formality, and that, after his
conviction, his
name was permitted to be published.
76. The Court notes in this
connection that one of the minimum guarantees provided by Article 40 § 2
(b) of the UN
Convention to children accused of crimes is that they should have
their privacy fully respected at all stages of the proceedings.
Similarly, Rule
8 of the Beijing Rules states that “the juvenile’s privacy shall be
respected at all stages” and
that “in principle, no information that
may lead to the identification of a juvenile offender shall be published”.
Finally,
the Committee of Ministers of the Council of Europe recommended in 1987
that member States should review their law and practice with
a view to avoiding
committing minors to adult courts where juvenile courts exist and to recognising
the right of juveniles to respect
for their private lives (see paragraphs 45, 46
and 49 above).
77. The Court considers that the foregoing
demonstrates an international tendency in favour of the protection of the
privacy
of juvenile defendants, and it notes in particular that the UN
Convention is binding in international law on the United Kingdom in
common with
all the other member States of the Council of Europe (see paragraph 46 above).
Moreover, Article 6 § 1 of the Convention
states that “the press and
public may be excluded from all or part of the trial ... where the interests of
juveniles ... so
require” (see further paragraph 81 below). However,
whilst the existence of such a trend is one factor to be taken into account
when
assessing whether the treatment of the applicant can be regarded as acceptable
under the other Articles of the Convention, it
cannot be determinative of the
question whether the trial in public amounted to ill-treatment attaining the
minimum level of severity
necessary to bring it within the scope of Article 3
(see paragraph 70 above).
78. The Court recognises that the
criminal proceedings against the applicant were not motivated by any intention
on the
part of the State authorities to humiliate him or cause him suffering.
Indeed, special measures were taken to modify the Crown Court
procedure in order
to attenuate the rigours of an adult trial in view of the defendants’
young age (see paragraph 9 above).
79. Even if there is evidence
that proceedings such as those applied to the applicant could be expected to
have a harmful
effect on an eleven-year-old child (see paragraphs 17-19 above),
the Court considers that any proceedings or inquiry to determine
the
circumstances of the acts committed by T. and the applicant, whether such
inquiry had been carried out in public or in private,
attended by the formality
of the Crown Court or informally in the youth court, would have provoked in the
applicant feelings of guilt,
distress, anguish and fear. The psychiatric
evidence shows that before the trial commenced he was suffering from the
post-traumatic
effects of the offence; that he cried inconsolably and found it
difficult and distressing when asked to talk about what he and T.
had done to
the two-year-old, and that he suffered fears of punishment and terrible
retribution (see paragraphs 11-12 above).
Whilst the public nature of the
proceedings may have exacerbated to a certain extent these feelings in the
applicant, the Court is
not convinced that the particular features of the trial
process as applied to him caused, to a significant degree, suffering going
beyond that which would inevitably have been engendered by any attempt by the
authorities to deal with the applicant following the
commission by him of the
offence in question (see paragraph 71 above).
80. In conclusion,
therefore, the Court does not consider that the applicant’s trial gave
rise to a violation of
Article 3 of the Convention.
C. Article 6 § 1 of the
Convention
81. In addition, the applicant complained that he
had been denied a fair trial in breach of Article 6 § 1 of the Convention,
which states:
“In the determination of ... any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an
independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public
may be excluded from all or part of
the trial in the interests of morals, public order or national security in a
democratic society,
where the interests of juveniles or the protection of the
private life of the parties so require, or to the extent strictly necessary
in
the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.”
82. The applicant
submitted that the right to a fair trial under Article 6 § 1 of the
Convention implies the
right of an accused to be present so that he can
participate effectively in the conduct of his case (he relied upon the Stanford
v. the United Kingdom judgment of 23 February 1994, Series A no. 282-A, pp.
10-11, § 26). He referred to psychiatric and other
evidence which
established that the applicant was no more emotionally mature than an eight- or
nine-year-old, that he did not fully
attend to or understand the proceedings and
that he was too traumatised and intimidated to give his own account of events,
either
to his lawyers, the psychiatrist who interviewed him, or to the court
(see paragraphs 11-12 and 17-19 above).
83. The Government
disputed that the public nature of the trial breached the applicant’s
rights. They emphasised
that a public trial serves to protect the interests of
defendants as a guarantee that proceedings will be conducted fairly and by
encouraging witnesses to come forward. Moreover, hearings of grave charges
should take place in open court because of the legitimate
public interest in
knowing what has occurred and why, and to maintain confidence in the
administration of justice. They pointed out
that the applicant was represented
by highly experienced leading counsel and that the procedure was modified as far
as possible to
facilitate his understanding and participation (see paragraph 9
above).
84. The Commission expressed the view that where a child
was faced with a criminal charge and the domestic system required
a fact-finding
procedure with a view to establishing guilt, it was essential that the
child’s age, level of maturity and intellectual
and emotional capacities
be taken into account in the procedures followed. It considered that the public
trial process in an adult
court with attendant publicity must be regarded in the
case of an eleven-year-old child as a severely intimidating procedure and
concluded that, having regard to the applicant’s age, the application of
the full rigours of an adult, public trial deprived
him of the opportunity to
participate effectively in the determination of the criminal charges against
him, in breach of Article
6 § 1.
85. The Court notes that
Article 6, read as a whole, guarantees the right of an accused to participate
effectively in his
criminal trial (see the Stanford judgment cited above, loc.
cit.).
It has not until the present time been called upon to consider how
this Article 6 § 1 guarantee applies to criminal proceedings
against
children, and in particular whether procedures which are generally considered to
safeguard the rights of adults on trial,
such as publicity, should be abrogated
in respect of children in order to promote their understanding and participation
(but see
the Nortier v. the Netherlands judgment of 24 August 1993, Series A no.
267, and particularly the separate opinions annexed
thereto).
86. The Court recalls its above findings that there is
not at this stage any clear common standard amongst the member States
of the
Council of Europe as to the minimum age of criminal responsibility and that the
attribution of criminal responsibility to
the applicant does not in itself give
rise to a breach of Article 3 of the Convention (see paragraph 74 above).
Likewise, it cannot
be said that the trial on criminal charges of a child, even
one as young as eleven, as such violates the fair trial guarantee under
Article 6 § 1. The Court does, however, agree with the Commission that
it is essential that a child charged with an offence
is dealt with in a manner
which takes full account of his age, level of maturity and intellectual and
emotional capacities, and that
steps are taken to promote his ability to
understand and participate in the proceedings.
87. It follows
that, in respect of a young child charged with a grave offence attracting high
levels of media and public
interest, it would be necessary to conduct the
hearing in such a way as to reduce as far as possible his or her feelings of
intimidation
and inhibition. In this connection it is noteworthy that in England
and Wales children charged with less serious crimes are dealt
with in special
youth courts, from which the general public is excluded and in relation to which
there are imposed automatic reporting
restrictions on the media (see paragraphs
30 and 31 above). Moreover, the Court has already referred to the international
tendency
towards the protection of the privacy of child defendants (see
paragraph 77 above). It has considered carefully the Government’s
argument
that public trials serve the general interest in the open administration of
justice (see paragraph 83 above), and observes
that, where appropriate in view
of the age and other characteristics of the child and the circumstances
surrounding the criminal
proceedings, this general interest could be satisfied
by a modified procedure providing for selected attendance rights and judicious
reporting.
88. The Court notes that the applicant’s trial
took place over three weeks in public in the Crown Court. Special
measures were
taken in view of the applicant’s young age and to promote his
understanding of the proceedings: for example,
he had the trial procedure
explained to him and was taken to see the courtroom in advance, and the hearing
times were shortened so
as not to tire the defendants excessively. Nonetheless,
the formality and ritual of the Crown Court must at times have seemed
incomprehensible
and intimidating for a child of eleven, and there is evidence
that certain of the modifications to the courtroom, in particular the
raised
dock which was designed to enable the defendants to see what was going on, had
the effect of increasing the applicant’s
sense of discomfort during the
trial, since he felt exposed to the scrutiny of the press and public. The trial
generated extremely
high levels of press and public interest, both inside and
outside the courtroom, to the extent that the judge in his summing-up referred
to the problems caused to witnesses by the blaze of publicity and asked the jury
to take this into account when assessing their evidence
(see paragraph 14
above).
89. There is considerable psychiatric evidence relating to
the applicant’s ability to participate in the proceedings.
Thus, Dr Susan
Bailey gave evidence during the trial in November 1993 that on each occasion
when she had seen the applicant prior
to the trial he had cried inconsolably and
had not been able to talk about the circumstances of the offence in any useful
way (see
paragraph 12 above). Dr Bentovim similarly found in his report of
September 1993 that the applicant was suffering from post-traumatic
effects and
found it very difficult and distressing to think or talk about the events in
question, making it impossible to ascertain
many aspects (see paragraph 11
above). Subsequent to the trial, in January 1995, the applicant told
Dr Bentovim that he had
been terrified of being looked at in court and had
frequently found himself worrying what people were thinking about him. He had
not been able to pay attention to the proceedings and had spent time counting in
his head or making shapes with his shoes. Dr Bentovim
considered that, in view
of V.’s immaturity, it was “very doubtful” that he understood
the situation and was able
to give informed instruction to his lawyers (see
paragraph 17 above). The report of Dr Bailey dated November 1997 also described
the applicant’s attempts to distract himself during the trial, his
inability to listen to what was said and the distress caused
to him by the
public nature of the proceedings (see paragraph 18 above).
90. In
such circumstances the Court does not consider that it was sufficient for the
purposes of Article 6 § 1 that
the applicant was represented by skilled and
experienced lawyers. This case is different from that of Stanford (cited in
paragraph
82 above), where the Court found no violation arising from the fact
that the accused could not hear some of the evidence given at
trial, in view of
the fact that his counsel, who could hear all that was said and was able to take
his client’s instructions
at all times, chose for tactical reasons not to
request that the accused be seated closer to the witnesses. Here, although the
applicant’s
legal representatives were seated, as the Government put it,
“within whispering distance”, it is highly unlikely that
the
applicant would have felt sufficiently uninhibited, in the tense courtroom and
under public scrutiny, to have consulted with
them during the trial or, indeed,
that, given his immaturity and his disturbed emotional state, he would have been
capable outside
the courtroom of cooperating with his lawyers and giving them
information for the purposes of his defence.
91. In conclusion,
the Court considers that the applicant was unable to participate effectively in
the criminal proceedings
against him and was, in consequence, denied a fair
hearing in breach of Article 6 § 1.
D. Articles 6 § 1 and 14 of the Convention taken
together
92. Before the Commission the applicant complained
under Articles 6 § 1 and 14 of the Convention taken together
that the
attribution to him of criminal responsibility discriminated against him unfairly
in comparison to a child aged younger than
ten at the time of committing similar
acts. However, he did not maintain this complaint before the Court, which sees
no reason of
its own motion to examine the issues under Article 14.
In
conclusion, the Court does not consider it necessary to examine this
complaint.
II. ISSUES UNDER THE CONVENTION RELATING TO THE SENTENCE
A. Article 3 of the Convention
93. The
applicant argued that, in view of his age at the time of the offence, the
sentence of detention during Her Majesty’s
pleasure was severely
disproportionate and in breach of Article 3 of the Convention (see paragraph 62
above).
He relied on the element of retribution inherent in the tariff
approach, on the fact that the Home Secretary had initially set a tariff
of
fifteen years and on the fact that, although this decision had been quashed by
the House of Lords (see paragraph 26 above), no
new, lower tariff had yet been
set. He had thus been exposed to executive control and to a high level of delay
and uncertainty regarding
his future. If a lower tariff were not set, he risked
transfer to a Young Offenders’ Institution at the age of eighteen, and,
at
twenty-one, to an adult prison. Moreover, he would be subject to recall to
prison for the rest of his life (see paragraphs 36
and 39
above).
94. The Government submitted that the applicant had been
convicted of an especially horrible murder and that he could not
complain that
he would be detained until it was safe to release him into the community, or
that he might be recalled to prison if
necessary for the protection of the
public. It was true that during the tariff period the applicant was detained as
punishment, and
not solely for the purposes of public protection. However,
neither Article 3 of the Convention nor Article 37 of the UN Convention
prohibited the punishment of a young person for a criminal offence. They pointed
out that the applicant was detained in an institution
where he received
education and enjoyed facilities appropriate to his age, that he had made no
complaint about his present conditions
of detention, and that any complaint
relating to his possible transfer to a Young Offenders’ Institution or to
a prison was
entirely speculative.
95. The Commission agreed with
the Government. It referred to the Hussain v. the United Kingdom judgment of 21
February
1996 (Reports 1996-I), where the Court held that the sentence of
detention during Her Majesty’s pleasure was primarily preventative,
attracting
the guarantees of Article 5 § 4 (see paragraphs 115 and 119
below). It could not, therefore, be said that the applicant had
forfeited his
liberty for life or that his detention gave rise to a violation of Article
3.
96. The Court recalls that following the applicant’s
conviction for murder in November 1993 he automatically became
subject to the
sentence of detention during Her Majesty’s pleasure. According to English
law and practice, juveniles sentenced
to detention during Her Majesty’s
pleasure must initially serve a period of detention, “the tariff”,
to satisfy
the requirements of retribution and deterrence. Thereafter it is
legitimate to continue to detain the offender only if this appears
to be
necessary for the protection of the public (see paragraphs 40-42 above and the
Hussain judgment cited above, pp. 269-70, §
54). The applicant’s
tariff was initially fixed at fifteen years by the Home Secretary on 22 July
1994. However, this decision
was quashed by the House of Lords on 12 June 1997
and at the date of adoption of the present judgment no new tariff has been set.
The applicant makes no complaint about his current conditions of detention,
although he does contend that his transfer at the age
of eighteen to a Young
Offenders’ Institution and thereafter to an adult prison might raise
issues under Article 3.
97. In assessing whether the above facts
constitute ill-treatment of sufficient severity to violate Article 3 (see
paragraph
70 above), the Court has regard to the fact that Article 37 of the UN
Convention prohibits life imprisonment without the possibility
of release in
respect of offences committed by persons below the age of eighteen and provides
that the detention of a child “shall
be used only as a measure of last
resort and for the shortest appropriate period of time”, and that Rule
17.1(b) of the Beijing
Rules recommends that “[r]estrictions on the
personal liberty of the juvenile shall ... be limited to the possible
minimum”
(see paragraphs 45-46 above).
98. The Court recalls
that States have a duty under the Convention to take measures for the protection
of the public from
violent crime (see, for example, the A. v. the United Kingdom
judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22, and
the Osman v. the United Kingdom judgment of 28 October 1998, Reports
1998-VIII, p. 3159, § 115). It does not consider that the punitive element
inherent in the tariff approach itself gives rise
to a breach of Article 3, or
that the Convention prohibits States from subjecting a child or young person
convicted of a serious
crime to an indeterminate sentence allowing for the
offender’s continued detention or recall to detention following release
where necessary for the protection of the public (see the Hussain judgment cited
above, p. 269, § 53).
99. The applicant has not yet reached
the stage in his sentence where he is able to have the continued lawfulness of
his
detention reviewed with regard to the question of dangerousness and,
although he has not yet been notified of any new tariff, it
can be assumed that
he is currently detained for the purposes of retribution and deterrence. Until a
new tariff has been set, it
is not possible to draw any conclusions regarding
the length of punitive detention to be served by the applicant. At the time of
adoption of the present judgment he has been detained for six years since his
conviction in November 1993. The Court does not consider
that, in all the
circumstances of the case including the applicant’s age and his conditions
of detention, a period of punitive
detention of this length can be said to
amount to inhuman or degrading treatment.
100. Finally, the Court
observes that it cannot be excluded, particularly in relation to a child as
young as the applicant
at the time of his conviction, that an unjustifiable and
persistent failure to fix a tariff, leaving the detainee in uncertainty
over
many years as to his future, might also give rise to an issue under Article 3.
In the present case, however, in view of the
relatively short period of time
during which no tariff has been in force and the need to seek the views,
inter alia, of both the applicant and T. (see paragraph 28 above), no
such issue arises.
101. It follows that there has been no
violation of Article 3 in respect of the applicant’s sentence.
B. Article 5 § 1 of the
Convention
102. The applicant alleged that the sentence of
detention imposed upon him was unlawful, in breach of Article 5 §
1 of the
Convention, which provides:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...”
He contended that it was arbitrary to impose the same sentence
– detention during Her Majesty’s pleasure – on all
young
offenders convicted of murder, irrespective of their individual circumstances
and needs. In this connection he referred to
Article 37(b) of the UN Convention
on the Rights of the Child and Rules 16 and 17.1(a) and (b) of the Beijing Rules
(see paragraphs
45-46 above) which, inter alia, require that sentences of
detention imposed on children be as short as possible and that sentencers have
regard, as the guiding
factor, to the well-being of the
child.
103. The Government, with whom the Commission agreed,
denied that the sentence of detention during Her Majesty’s
pleasure was
unlawful or arbitrary, and pointed out that its purpose was to enable
consideration to be given to the specific circumstances
of the applicant’s
case, so that he would be detained only for so long as was necessary with regard
to the need for punishment,
rehabilitation and the protection of the
community.
104. The Court observes that the applicant was detained
following conviction by a competent court; in other words, his
detention falls
within the scope of Article 5 § 1 (a) of the Convention. There can be no
question but that the sentence of detention
during Her Majesty’s pleasure
is lawful under English law and was imposed in accordance with a procedure
prescribed by law.
Moreover, it cannot be said that the applicant’s
detention is not in conformity with the purposes of the deprivation of liberty
permitted by Article 5 § 1 (a), so as to be arbitrary (see the Weeks v. the
United Kingdom judgment of 2 March 1987, Series
A no. 114, p. 23, § 42; and
cf. the Hussain judgment cited above, p. 269, § 53, where the Court
referred to the question
of the lifelong detention of a juvenile as possibly
raising an issue under Article 3, but not Article 5 §
1).
105. It follows that there has been no violation of Article 5
§ 1 of the Convention in the present case.
C. Article 6 § 1 of the
Convention
106. The applicant claimed that the fact that the
tariff period was fixed by the Home Secretary rather than a tribunal
meeting the
requirements of Article 6 § 1 of the Convention (see paragraph 81 above)
gave rise to a violation of that provision.
1. Applicability of Article 6 §
1
107. The applicant, with whom the Commission agreed,
submitted that the fixing of the tariff amounted to a sentencing exercise
and,
as such, should attract the safeguards of Article 6 § 1. The tariff
determined both the maximum period of detention to
be served for the purposes of
punishment and deterrence and the minimum period to be served irrespective of
dangerousness. He pointed
out that in the judicial review proceedings (see
paragraphs 26 and 43 above) a clear majority of judges in the Court of Appeal
and
House of Lords had characterised the Home Secretary’s role in fixing
the tariff as similar to that performed by a judge in
sentencing. He referred in
addition to the decision of the Irish Supreme Court in State v.
O’Brien ([1973] Irish Reports 50), that a similar provision as applied
in Ireland was unconstitutional because it entrusted the executive
and not the
judiciary with a sentencing function in respect of
children.
108. The Government contended that Article 6 § 1
was not applicable. They reasoned that, upon being convicted of murder,
the
applicant was automatically subject to the sentence of detention during Her
Majesty’s pleasure (see paragraph 36 above),
and that the fixing of the
tariff was merely an aspect of the administration of the sentence already
imposed by the court.
109. The Court recalls that Article 6 §
1 guarantees certain rights in respect of the “determination of ...
any
criminal charge ...”. In criminal matters, it is clear that Article 6
§ 1 covers the whole of the proceedings in issue,
including appeal
proceedings and the determination of sentence (see, for example, the Eckle v.
Germany judgment of 15 July 1982,
Series A no. 51, pp. 34-35, §§
76-77). The Court must determine whether the tariff-setting procedure in respect
of
young offenders detained during Her Majesty’s pleasure amounts to the
fixing of a sentence and falls within the scope of Article
6 §
1.
110. In contrast to the mandatory life sentence imposed on
adults convicted of murder which constitutes punishment for
life, the sentence
of detention during Her Majesty’s pleasure is open-ended. As previously
mentioned, a period of detention,
“the tariff”, is served to satisfy
the requirements of retribution and deterrence, and thereafter it is legitimate
to
continue to detain the offender only if this appears to be necessary for the
protection of the public (see paragraphs 40-42 above
and the Hussain judgment
cited above, pp. 269-70, § 54; cf. the Wynne v. the United Kingdom judgment
of 18 July 1994, Series
A no. 294-A, pp. 14-15, § 35). Where a juvenile
sentenced to detention during Her Majesty’s pleasure is not perceived
to
be dangerous, therefore, the tariff represents the maximum period of detention
which he can be required to serve.
111. The Court considers that
it follows from the foregoing, as was recognised by the House of Lords in the
judicial review
proceedings brought by the applicant (see paragraph 43 above),
that the fixing of the tariff amounts to a sentencing exercise. Article
6 §
1 is, accordingly, applicable to this procedure.
2. Compliance with Article 6 §
1
112. Both the applicant and the Commission were of the view
that the tariff-fixing procedure had failed to comply with
Article 6 § 1 in
that the decision-maker was the Home Secretary rather than a court or tribunal
independent of the executive.
In addition the applicant pointed out that there
had been no hearing and no opportunity for him to call psychiatric or other
evidence,
and that the Home Secretary retained a discretion to decide how much
of the material before him he disclosed to the applicant.
113. The
Government submitted that there were adequate safeguards to ensure that the
procedure for the setting of the tariff
was fair. Thus, the Secretary of State
sought the views of the trial judge and the Lord Chief Justice, informed the
applicant of
the judges’ views, and invited him to make representations as
to the appropriate length of the tariff. The Secretary of State
informed the
applicant of the tariff fixed, and gave reasons in support of his decision. It
was then open to the applicant to challenge
the decision by way of judicial
review.
114. The Court notes that Article 6 § 1 guarantees,
inter alia, “a fair ... hearing ... by an independent and impartial
tribunal ...”. “Independent” in this context means
independent
of the parties to the case and also of the executive (see, amongst many other
authorities, the Ringeisen v. Austria judgment
of 16 July 1971, Series A no. 13,
p. 39, § 95). The Home Secretary, who set the applicant’s tariff, was
clearly not independent
of the executive, and it follows that there has been a
violation of Article 6 § 1.
D. Article 5 § 4 of the
Convention
115. Finally, the applicant complained that since
his conviction he had had no opportunity to have the continued lawfulness
of his
detention determined by a judicial body. He alleged a violation of Article 5
§ 4 of the Convention, which states:
“Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness
of his detention shall
be decided speedily by a court and his release ordered if the detention is not
lawful.”
116. The applicant adopted the opinion of the
Commission, which stated (in paragraph 143 of its report), that given that
the
only justification for an indeterminate sentence could be the protection of the
public, and having regard to the fact that children
aged eleven could be
expected to develop physically, intellectually and emotionally, only a short
tariff could be compatible with
Article 5 § 4. It could not be excluded
that after several years a young offender who had gained in maturity could claim
that
new issues had arisen affecting the lawfulness of his continued detention.
Since the applicant had been detained without review following
his conviction in
November 1993, there had been a violation of Article 5 §
4.
117. The Government submitted that there had been judicial
review of the lawfulness of the detention in that the sentence
of detention
during Her Majesty’s pleasure was imposed by the trial court following the
applicant’s conviction for murder.
After the expiry of the tariff a
judicial body, the Parole Board, would decide on release, in compliance with
Article 5 § 4
(see paragraph 38 above). However, until the tariff period
had been served, Article 5 § 4 did not confer any right to periodic
review
because the tariff period primarily depended on the circumstances of the offence
and the consequential requirements of retribution
and deterrence, factors which
were not subject to change over time.
118. The Court observes at
the outset that it is not its task, within the context of Article 5 of the
Convention, to pronounce
upon the appropriate length of detention or other
sentence which should be served by a person after conviction by a competent
court
(see the Weeks judgment cited above, p. 26, § 50, and also paragraph
104 above). Given that the fixing of a tariff in respect
of a juvenile detained
during Her Majesty’s pleasure amounts to the determination of a sentence
(see paragraph 111 above),
the Court will limit its consideration to the
question whether the applicant should be able to take proceedings to have the
lawfulness
of his continued detention decided by a court satisfying the
requirements of Article 5 § 4.
119. The Court recalls that
where a national court, after convicting a person of a criminal offence, imposes
a fixed sentence
of imprisonment for the purposes of punishment, the supervision
required by Article 5 § 4 is incorporated in that court decision
(see the
De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no.
12, pp. 40-41, § 76, and the Wynne
judgment cited above, p. 15, § 36).
This is not the case, however, in respect of any ensuing period of detention in
which new
issues affecting the lawfulness of the detention may arise (see the
Weeks judgment cited above, p. 28, § 56, and the Thynne,
Wilson and Gunnell
v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, pp.
26-27, § 68). Thus, in the
Hussain judgment (op. cit., pp. 269-70,
§ 54), the Court decided in respect of a young offender detained during Her
Majesty’s
pleasure that, after the expiry of the tariff period, Article 5
§ 4 required that he should be able periodically to challenge
the
continuing legality of his detention since its only justification could be
dangerousness, a characteristic subject to change.
In the Hussain case the Court
was not called upon to consider the position under Article 5 § 4 prior to
the expiry of the tariff
(op. cit., p. 266, §
44).
120. The Court has already determined that the failure to
have the applicant’s tariff set by an independent tribunal
within the
meaning of Article 6 § 1 gives rise to a violation of that provision (see
paragraph 114 above). Accordingly, given
that the sentence of detention during
Her Majesty’s pleasure is indeterminate and that the tariff was initially
set by the
Home Secretary rather than the sentencing judge, it cannot be said
that the supervision required by Article 5 § 4 was incorporated
in the
trial court’s sentence (cf. the De Wilde, Ooms and Versyp judgment and the
Wynne judgment cited in paragraph 119 above).
121. Moreover, the
Home Secretary’s decision setting the tariff was quashed by the House of
Lords on 12 June 1997
and no new tariff has since been substituted. This failure
to set a new tariff means that the applicant’s entitlement to access
to a
tribunal for periodic review of the continuing lawfulness of his detention
remains inchoate.
122. It follows that the applicant has been
deprived, since his conviction in November 1993, of the opportunity to have
the
lawfulness of his detention reviewed by a judicial body in accordance with
Article 5 § 4. Against this background, the Court
finds a violation of that
Article.
III. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
123. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
124. The applicant did not make any
claim for pecuniary or non-pecuniary damage.
B. Costs and expenses
125. In respect of the
costs and expenses of the Strasbourg proceedings, the applicant claimed
solicitors’ costs
of 7,796.34 pounds sterling (GBP) exclusive of
value-added tax (VAT) and barristers’ fees totalling GBP 30,000 plus
VAT.
In addition he claimed costs and expenses incurred in relation to the
hearing before the Court of GBP 4,580.
126. The Government stated
that the solicitors’ costs were reasonable but submitted that the
barristers’ fees
should be reduced to GBP 21,000.
127. The
Court considers that the total costs and expenses claimed by the applicant, GBP
42,376.34, are not excessive in
view of the number and difficulty of the issues
in the case. However, since the applicant was not able to establish violations
of
Articles 3 and 5 § 1 of the Convention, it reduces the award to GBP
32,000 (see, for example, the Steel and Others v. the United
Kingdom judgment of
23 September 1998, Reports 1998-VII, p. 2763, § 125, and the
Osman judgment cited above, p. 3173, § 168), together with any VAT which
may be payable,
but less the amounts already paid by way of legal aid by the
Council of Europe.
C. Default interest
128. According to the
information available to the Court, the statutory rate of interest applicable in
England and Wales
at the date of adoption of the present judgment is 7.5% per
annum.
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government’s preliminary objection;
2. Holds by twelve votes to five that there has been no violation of Article 3 of the Convention in respect of the applicant’s trial;
3. Holds by sixteen votes to one that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant’s trial;
4. Holds unanimously that it is not necessary to examine the complaint under Articles 6 § 1 and 14 of the Convention taken together;
5. Holds by ten votes to seven that there has been no violation of Article 3 of the Convention in respect of the applicant’s sentence;
6. Holds unanimously that there has been no violation of Article 5 § 1 of the Convention;
7. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention in respect of the setting of the applicant’s tariff;
8. Holds unanimously that there has been a violation of Article 5 § 4 of the Convention;
9. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months, for costs and expenses, 32,000 (thirty-two thousand) pounds sterling, together with any value-added tax that may be chargeable, less 32,405 (thirty-two thousand four hundred and five) French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment;
(b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 December 1999.
Luzius WILDHABER
President
Paul MAHONEY
Deputy Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2
of the Rules of Court, the following separate opinions
are annexed to this
judgment:
(a) concurring opinion of Lord
Reed;
(b) partly dissenting opinion of Mr Rozakis and Mr
Costa;
(c) joint partly dissenting opinion of Mr Pastor Ridruejo,
Mr Ress, Mr Makarczyk, Mrs Tulkens and Mr
Butkevych;
(d) partly dissenting opinion of Mr Baka.
L.W.
P.J.M.
CONCURRING OPINION OF Lord REED
I have voted with the majority of the Court in relation to each of the issues
raised in this case, and wish only to add my own observations
in relation to the
issues raised under Articles 3 and 6 of the Convention.
The murder of James
Bulger by the applicant and T. (the applicant in case no. 24724/94) was an
appalling act. James was two years
old. The grief of his parents, who took part
in the proceedings before the Court, is inexpressible. The fact that the
applicant and
T. were themselves only ten years old at the time of the murder
makes it particularly disturbing. Other aspects of the murder, such
as the
abduction of James from his mother, the brutal nature of the killing, and the
severing of James’s body, provoke shock
and revulsion. The video pictures
which showed the applicant and T. abducting James, and leading this defenceless
little boy to his
death, brought the events before his parents, and before the
public, with a haunting clarity. In these circumstances it is unsurprising
that
the case has given rise to great public concern and has received a high level of
publicity.
However dreadful a crime may be, the person accused of committing
it has certain rights, including the right to a fair trial. That
right is
protected by English law, and it is also guaranteed by Article 6 of the
Convention. Article 3 of the Convention in addition
requires that no person
– even someone accused or convicted of a dreadful crime – shall be
subjected to inhuman or degrading
treatment. The requirements of the Convention
have long been accepted by the United Kingdom. The issue which this Court has to
determine
is whether the applicant has been treated in accordance with those
requirements.
Children who commit crimes present a problem to any system of
criminal justice, because they are less mature than adults. Even children
who
may appear to be lacking in innocence or vulnerability are nevertheless
evolving, psychologically as well as physically, towards
the maturity of
adulthood. One consequent difficulty lies in deciding whether children are
sufficiently mature to be held responsible
for their actions under the criminal
law. If children are held criminally responsible, they then have to be tried;
but ordinary trial
procedure will not be appropriate if a child is too immature
for such procedure to provide him with a fair trial. If children are
tried and
convicted, they then have to be sentenced; but it will not be appropriate to
sentence them in the same way as an adult,
if their immaturity has the
consequence that they were less culpable or that reformative measures are more
likely to be effective.
All of these problematical aspects of the treatment of
children in the criminal justice system – the age of responsibility,
the
trial procedure and sentencing – are raised in the present case.
I
propose to consider first the issues arising under Article 3 and
Article 6 § 1 in relation to the trial, before considering
the
issues arising in relation to the sentencing process.
As the Court has
observed, Article 3 of the Convention enshrines one of the most fundamental
values of democratic society. It is for
that reason that it constitutes an
absolute prohibition: “no one” is to be subjected to inhuman or
degrading treatment.
The revulsion provoked by James’s murder cannot
therefore justify any inhuman or degrading treatment of those responsible for
his death. The only issue under Article 3 is whether the treatment of the
applicant was in fact inhuman or degrading.
The expressions
“inhuman” and “degrading” in Article 3 of the Convention
should be given their ordinary meaning
(see the Campbell and Cosans v. the
United Kingdom judgment of 25 February 1982, Series A no. 48, pp. 13-14,
§ 30). Giving
the expressions their ordinary meaning, an assessment of
whether a given form of treatment is inhuman or degrading depends upon the
application of standards. Since the Convention is a living instrument, the
relevant standards must be those prevailing from time
to time amongst the member
States of the Council of Europe. This is in accordance with the general
principle, well established in
the Court’s case-law, that it is legitimate
when deciding whether a certain measure is acceptable under one of the
provisions
of the Convention to take account of the standards prevailing amongst
the member States.
In order for treatment to fall within the scope of Article
3, it must be “ill-treatment” which attains a minimum level
of
severity (see, for example, the Raninen v. Finland judgment of 16 December 1997,
Reports of Judgments and Decisions 1997-VIII, pp. 2821-22; § 55).
The assessment of this minimum depends on all the circumstances of the case
(ibid). In addition
to the objective nature of the treatment and its effects on
the person subjected to it, the purpose of the authority which was responsible
for the treatment is also relevant in determining whether it is prohibited by
Article 3 (see, for example, the Abdulaziz, Cabales
and Balkandali v. the United
Kingdom judgment of 28 May 1985, Series A no. 94, p. 42, § 91; the
Herczegfalvy v. Austria judgment
of 24 September 1992, Series A no. 244, pp.
25-26, § 82; and the Raninen judgment cited above, loc. cit.). In order for
treatment
to be inhuman or degrading, the suffering or humiliation involved must
in any event go beyond that inevitable element of suffering
or humiliation
connected with a given form of legitimate treatment (see the Soering v. the
United Kingdom judgment of 7 July 1989,
Series A no. 161, p. 39, §
100).
In submitting that the trial amounted to inhuman and degrading
treatment, the applicant relied particularly upon the age of criminal
responsibility, the fact that the trial was held in public in the Crown Court
over a period of three weeks and the fact that his
name was permitted to be
published after his conviction, together with a number of factors relating to
his sentence which I shall
consider below.
The effect upon a child of
attributing criminal responsibility to him will depend primarily upon the nature
of the trial procedure
and sentences applicable to such a child under domestic
law. The attribution of criminal responsibility cannot in itself give rise
to an
issue under Article 3 of the Convention unless it inevitably constitutes or
results in ill-treatment attaining the necessary
minimum level of severity. That
matter has to be considered in accordance with prevailing standards amongst the
member States.
Although in most of the member States criminal responsibility
would not be attributed to a child of ten, there is no common approach
to the
attribution of criminal responsibility. The practice is very varied, with ages
ranging from seven in a number of member States
to eighteen in a number of
others. Nor does any specific guidance emerge from the various international
texts and instruments to
which the Court was referred. In those circumstances,
although the minimum age in England and Wales is towards the lower end of the
range, it cannot be said to be out of line with any prevailing standard.
Moreover, the purpose of attributing criminal responsibility
to a child of a
given age is not to cause that child suffering or humiliation, but to reflect a
consensus in the society in question
as to the appropriate age at which a child
is sufficiently mature to be held criminally responsible for his or her conduct.
Since
perceptions of childhood reflect social, cultural and historical
circumstances, and are subject to change over time, it is unsurprising
that
different States should have different ages of responsibility. So far as England
and Wales are concerned, the present age of
criminal responsibility was fixed by
Parliament in 1963 and was endorsed by the House of Commons Select Committee on
Home Affairs,
in its Report on Juvenile Offending, in 1993. It accordingly
enjoys democratic legitimacy. In addition, although the attribution
of criminal
responsibility to a child of ten will have consequences which may cause distress
to the child concerned, it is necessary
to bear in mind that the treatment of a
child who has behaved in the same way in a State with a higher age of criminal
responsibility
may also cause distress. Whether a child who has intentionally
killed another child is regarded as criminally responsible or not,
any society
is likely to require some form of inquiry to establish whether the child has in
fact behaved in the manner alleged and,
if so, some form of measures for the
protection of the public and the care and treatment of the child in question.
For all these
reasons, I conclude that the attribution of criminal
responsibility to the applicant did not in itself amount to inhuman or degrading
treatment within the meaning of Article 3 of the Convention.
The next
question is whether the trial of the applicant in public in the Crown Court
amounted to inhuman or degrading treatment. Any
trial is liable to cause mental
suffering and feelings of humiliation to be experienced by the person on trial.
Nevertheless, a trial
could not ordinarily be described as inhuman or degrading
treatment since it is a legitimate form of procedure according to prevailing
standards. This is so even if the trial is lengthy and is held in public with a
high level of formality. The critical issue is therefore
whether the age of the
applicant rendered such a trial inhuman or degrading.
If it was legitimate
under Article 3 of the Convention to attribute criminal responsibility to the
applicant, it follows that a trial
was also legitimate under Article 3,
notwithstanding that any form of trial would be liable to cause distress to the
child involved.
The form of trial procedure applied to the applicant was that
which was applicable in England and Wales to any child accused of such
a serious
offence, under legislation enacted by Parliament in 1980. Although the length of
the trial was relied on by the applicant,
there was no suggestion that it was
longer than was necessary to establish the facts in question. It has to be borne
in mind that
the applicant pleaded not guilty and benefited from a presumption
of innocence, and that his guilt had to be established by leading
sufficient
evidence to satisfy the jury beyond reasonable doubt. The fact that the trial
was held in public appears to me to raise
a more serious issue. For the trial of
an eleven-year-old child to be open to the general public and to be reported
without restriction
is regarded as generally inappropriate in the United Kingdom
as in other member States. For the trial to take place in a court packed
with
members of the public and representatives of the media, and with a hostile crowd
and numerous photographers outside, would naturally
give rise to particular
concern. Nevertheless, it has to be borne in mind that whether a legal system
requires a child to be tried
in public or in private reflects the way in which a
balance is drawn between countervailing, and incommensurable, values. On the
one
hand, the importance attached to safeguarding the well-being and future of young
children who have offended, and promoting their
rehabilitation and reintegration
into society, point towards holding their trials in private. On the other hand,
the public interest
(and that of the defendant) in the open administration of
justice, and the public interest in freedom of information, point towards
holding trials in public. The balance struck by Parliament between these
competing considerations required the great majority of
child offenders to be
tried in youth courts, from which the general public are excluded and in which
there are automatic restrictions
on publicity, but required children accused of
the most serious offences to be tried in public in the Crown Court. That being
the
system in place, an exceptionally dreadful case, such as that of
James’s murder, would inevitably attract the public and the
media in large
numbers. Although the balance, as I have described it, was struck differently in
England and Wales from in most of
the member States, and as a consequence the
treatment in England and Wales of children accused of very serious offences was
in that
respect less weighted towards their welfare than the treatment of such
children in most other member States, that was not because
of any indifference
towards their welfare, or any lack of respect for human dignity, let alone any
intention to cause suffering or
humiliation; but rather because the other
important considerations which I have mentioned were considered on balance to
require a
public trial in such cases. In these circumstances, it does not appear
to me that the holding of a public trial, even under the conditions
which
prevailed in the present case, can fairly be described as “inhuman”
or “degrading”. It is also necessary
to remember that, although
there is evidence (which I discuss later) that the applicant experienced
considerable distress, the evidence
indicates that that distress is not solely
attributable to the public nature of the trial, but was also the result of
guilt, remorse
and anxiety about the inevitable consequences of his involvement
in James’s murder. In all these circumstances, the trial procedure
cannot
in my opinion properly be described as “inhuman” or
“degrading” according to prevailing standards.
The disclosure of
the applicant’s identity, following his conviction, was in accordance with
English law and practice in such
circumstances. It was submitted on behalf of
the applicant that such disclosure was inappropriate having regard to a number
of international
texts, including in particular Article 40 § 2 (b) of the
United Nations Convention on the Rights of the Child. It does not appear
to me
to be necessary to determine whether the disclosure was consistent with Article
40 § 2 (b) (the interpretation of which
was in dispute before the Court) or
the other texts in question, since any distress or humiliation attributable to
that specific
aspect of the applicant’s treatment cannot in any event, in
my opinion, be regarded as attaining the minimum level of severity
necessary,
according to prevailing standards, to bring it within the scope of Article 3 of
the Convention.
I consider next the issues arising under Article 6 § 1
in relation to the trial. The applicant relied on the principle that the
right
to a fair trial under Article 6 § 1 of the Convention includes the right of
the accused to participate effectively in
the conduct of his case (see the
Stanford v. the United Kingdom judgment of 23 February 1994, Series A no. 282-A,
pp. 10-11,
§ 26). It was submitted that the applicant was unable to
understand the proceedings, or to give his own account of events to
his lawyers
or to the court, principally because the trial was held under conditions which
were inappropriate, in a variety of respects,
for a child of that age. It should
be understood that this complaint does not turn on the question whether the
applicant was guilty
or innocent: it is obviously essential that all children
accused of such a serious offence should be tried under conditions which
give
them an adequate opportunity to establish their innocence, or alternatively to
establish any mitigating circumstances.
The Court has rarely been required to
consider the application of Article 6 to cases involving children accused
of criminal offences.
Article 6 itself, however, permits the exclusion of the
public from all or part of a trial where the interests of juveniles so require,
derogating from the general principle that trials must be held in public, and
recognising that the interests of the child on trial
are a relevant and
important consideration. There is on the other hand nothing in Article 6 to
indicate that there can be any derogation,
in cases involving children, from the
principle that the trial process should provide for the effective participation
of the accused,
who must be able to follow the proceedings and to give
instructions where necessary to his lawyer. In order for that principle to
be
respected in cases involving children, however, the conditions under which the
trial is held (including the procedure followed)
have to be such as will permit
such participation, taking into account the age, level of maturity and
intellectual and emotional
capacity of the child concerned. This interpretation
of Article 6 is also in accordance with developments in international law:
a number of relevant texts, including treaties accepted as binding by the United
Kingdom and other member States (such as the United
Nations Convention on the
Rights of the Child, Article 40, and the International Covenant on Civil and
Political Rights, Article
14 § 4), require child offenders to be treated in
a manner which takes account of their age and the desirability of promoting
their rehabilitation.
There are thus special considerations relevant to cases
where children are accused of criminal offences. There are, however, different
ways in which they can be taken into account. In practice, there is a wide
variation in the ways in which different member States
organise their systems of
criminal justice so as to protect the interests of the individual child and the
wider public interest.
Even within any particular system, it may well be
difficult to decide in an individual case what measures are appropriate, bearing
in mind such factors as the maturity of the child in question, his position in
relation to the charge against him and the type of
sanction which may be
imposed. In these circumstances, Article 6 must in my opinion be interpreted as
giving the authorities of member
States a margin of appreciation as to their
procedure for dealing with children accused of crime (as was recognised in the
Nortier
v. the Netherlands judgment of 24 August 1993, Series A no. 267,
particularly in the separate opinions).
Nevertheless, however wide the margin
of appreciation may be, it is paramount that an accused, whether an adult or a
child, should
receive a fair trial. If a child is to be held accountable to the
criminal law, then he must enjoy the same right as an adult to
understand what
is happening at the trial and to play an active role in his defence. It has to
be acknowledged that there are inevitable
limitations to the participation which
can be expected of a child in legal proceedings, whatever form those proceedings
may take,
since the understanding and maturity of a child are unlikely to equal
those of an adult. Nevertheless, the trial process must enable
him to
participate to the extent which could reasonably be expected of a child.
In
the present case, English law required that the applicant be tried in the Crown
Court, which is also the court used for the trial
of adults accused of serious
offences. The setting was highly formal. The applicant and T. sat in a specially
raised dock in the
centre of the court, separated from their parents. The judge
was raised on a dais. There was a jury of twelve adults. The judge and
counsel
wore the customary court dress. The court itself appears to have been a large
and imposing room. The public benches were
filled with members of the public and
representatives of the media. This was in my opinion a setting which, in itself,
a child of
eleven would be likely to find intimidating, whether he was involved
as a witness or as a defendant.
The problem was, however, exacerbated in the
present case by the charged atmosphere in which the trial was conducted. The
date and
location of the trial being a matter of public knowledge, and the case
being one of exceptional notoriety, hostile crowds gathered
outside the court
and behaved in an intimidating manner, on one occasion attacking the van in
which the applicant was being transported.
I also note that, in his summing-up,
the trial judge instructed the jury to bear in mind, in assessing the evidence,
that witnesses
arrived in court in a blaze of publicity and that many faced a
bevy of photographers; that they had to give evidence in a large court
packed
with people; and that not surprisingly several of them were overcome with
emotion and some had difficulty in speaking audibly.
It seems to me that a child
of eleven, who was the primary focus of this attention (and hostility), would be
likely to find it even
more difficult to cope with, and that it would be likely
to affect to a material degree his ability to follow the evidence and to
give
evidence himself.
There is evidence before the Court that the applicant was
in fact unable to follow most of the trial proceedings or to participate
effectively in the conduct of his defence, and that it is unlikely that he could
have given evidence in his own defence. I refer
in particular to the evidence
given at the trial by Dr Susan Bailey, a consultant psychiatrist at the Home
Office; to her report
dated 4 November 1997; to the report dated 31 January 1995
by Dr Arnon Bentovim, a consultant psychiatrist at Great Ormond Street
Hospital for Children; and to the report dated 11 February 1998 by
Sir Michael Rutter, Professor of Child Psychiatry at the
Institute of
Psychiatry, University of London. These are supported by documents emanating
from the solicitor and junior counsel who
acted for the applicant at the trial,
and from the applicant’s mother. As I have mentioned, it appears from
their evidence
that the applicant’s problems were not entirely due to the
conditions under which the trial was held: as one might expect,
he was
traumatised by James’s murder and had strong feelings of guilt, remorse
and fear of retribution. At the same time, it
appears from that evidence that
his difficulties in coping with the trial were also due, to a significant
extent, to the conditions
under which the trial was held: above all, he appears
to have been intimidated by the crowds and television cameras outside the court,
and by his exposure to the gaze of the public inside the court. This is not
surprising, particularly when these are the same features
as the trial judge
drew to the jury’s attention as causing adult witnesses to be overcome
with emotion.
The Government on the other hand emphasised that, within the
constraints of the system within which the trial was held, a great deal
was done
to assist the applicant in coping with the experience. That is perfectly true,
and it is proper that it should be recognised.
As counsel for T. expressly
acknowledged in his submissions to the Court, the trial judge in particular did
his best to ensure that
the trial was held in a manner befitting an eleven
year-old. The court day was shortened to reflect the school day. Each day was
divided into hourly sessions separated by an interval, during which the
applicant could spend time with his parents and social workers
in an area
allocated for that purpose. The applicant was accompanied in the dock by a
social worker, and his parents were seated
close by. Further steps were taken by
the social services department, prior to the trial, to ensure that the applicant
was familiar
with the courtroom, court procedure and court personnel. These
measures are likely to have mitigated the difficulties which the applicant
would
otherwise have experienced. Nevertheless, a trial held under the conditions
which I have described could be expected to remain
a highly intimidating
experience for most eleven-year-old children.
The Government also emphasised
the importance of a public trial, open to the press and to the general public,
in order to maintain
public confidence in the administration of justice and to
respect the legitimate public interest in ascertaining the circumstances
which
had led to the killing of a young child. I of course accept that trials must in
general be held in public, for the reasons
which I have just summarised: that is
clear from Article 6 itself. Nevertheless, Article 6 also makes it clear that
that principle
is not absolute. It can be derogated from where the interests of
juveniles so require, as English law indeed recognises in the procedures
followed in the youth courts. It can also be derogated from where publicity
would prejudice the interests of justice, as English
law also recognises. If the
holding of a public trial is incompatible with the holding of a fair trial, it
is the latter which must
take priority. It also has to be borne in mind that it
is possible to restrict attendance rights and reporting rights to the extent
necessary to protect other legitimate interests without necessarily excluding
such rights altogether (as English law recognises,
for example in its treatment
of child witnesses).
I have accordingly come to the conclusion that the
conditions under which the applicant was tried, considered as a whole, were
incompatible
with his effective participation in the determination of the charge
against him. In consequence, there has in my opinion been a violation
of Article
6 of the Convention.
In submitting that the sentence imposed upon him
constituted inhuman treatment contrary to Article 3 of the Convention, the
applicant
relied on the element of retribution inherent in the tariff approach;
the lifelong possibility of recall to detention following release
on licence;
the length of the tariff of fifteen years originally imposed; the length of time
which he has already served; the risk
that he may be transferred to a Young
Offenders’ Institution and thereafter to an adult prison; and the delay in
fixing a new
tariff.
The Court has already accepted that the sentence of
detention during Her Majesty’s pleasure, in the case of young persons
convicted
of serious crimes, contains a punitive element (see the Hussain v. the
United Kingdom judgment of 21 February 1996, Reports 1996-I, pp. 269-70,
§§ 53-54). The existence of a punitive element cannot in itself be
regarded as inhuman treatment, given
that the attribution of criminal
responsibility to the child in question is acceptable. The nature and severity
of any punishment
may on the other hand give rise to an issue under Article
3.
It is also necessary to recall that States have a duty under the
Convention to take measures for the protection of the public from
violent crime.
Article 3 of the Convention cannot therefore have the effect of prohibiting
States from imposing on a child convicted
of a serious crime of violence a
sentence which allows for his continued detention, or his recall to detention
following release,
where that is necessary for the protection of the
public.
In considering whether the length of the original tariff, and the
length of time already served by the applicant, are compatible with
Article 3,
it is appropriate to have regard to the United Nations Convention on the Rights
of the Child, which is accepted by all
of the member States, including the
United Kingdom. Article 3 § 1 of that Convention requires that in all
actions concerning
children the best interests of the child shall be a primary
consideration. Article 40 § 1 requires the child offender to be
treated in
a manner which takes into account the child’s age and the desirability of
promoting the child’s reintegration
and the child’s assuming a
constructive role in society. These general requirements are reflected in
Article 37(b) of the United
Nations Convention, which requires that the
imprisonment of a child be used only as a measure of last resort and for the
shortest
appropriate period of time.
As was observed in the judicial review
proceedings brought by the applicant (R. v. Secretary of State for the Home
Department, ex parte V. and T. [1998] Appeal Cases 407, 499), the original
tariff appears to have been fixed without regard to the requirements imposed by
Articles
3 § 1 and 40 § 1 of the United Nations Convention. That
tariff was, however, quashed. Although there is evidence that
the applicant was
distressed on learning of the original tariff, a child of that age would also be
likely to be distressed by a tariff
fixed in accordance with the United Nations
Convention, or for that matter by the prospect of a lengthy period of detention
for non-punitive
purposes.
The imposition of the original tariff cannot
therefore in my opinion be regarded as ill-treatment attaining the minimum level
of severity
required by Article 3 of the Convention.
Since his conviction in
November 1993 the applicant has been detained for six years, at the time of
adoption of the present judgment.
He has been detained under conditions which
have taken into account his age and the desirability of promoting his
reintegration and
his assuming a constructive role in society. He makes no
complaint about the conditions under which he has been detained. Bearing
in mind
all the circumstances of the case (including the gravity of the
applicant’s conduct), this period of detention cannot
in my opinion be
said to amount to inhuman treatment.
Whether the applicant is transferred in
the future to a Young Offenders’ Institution, or eventually to an adult
prison, will
depend upon a number of factors. A new tariff has yet to be set: it
is impossible at present to assess how long it may be. Any detention
beyond the
tariff period will depend on an assessment of the risk to the safety of the
public. The location and conditions of any
future detention, and their impact
upon the applicant, are equally speculative at the present time. In these
circumstances, it is
impossible to make any findings as to whether such
detention would constitute a violation of Article 3.
The delay in fixing a
new tariff was attributed by the Government to a number of factors. The decision
of the House of Lords in June
1997 had required the Secretary of State to
reconsider the policy to be followed in fixing a tariff, resulting in the
announcement
of the new policy in November 1997. The Secretary of State had then
sought representations from T. and the applicant: the applicant’s
representations had been submitted in June 1998, but those on behalf of T. were
still awaited. The Secretary of State also required
a variety of reports on the
progress and development of T. and the applicant, which had been received in
August 1999. The proceedings
before the Commission and the Court had also raised
the question whether the tariff could be fixed by the Home Secretary without
a
violation of Article 6 § 1. In these circumstances, I do not consider that
the delay in fixing a tariff gives rise at the
present time to any issue under
Article 3.
In relation to Article 6 § 1, the applicant submitted that
the fixing of the tariff was in substance a sentencing function, and
therefore a
function which must be carried out by a court or tribunal rather than by the
Secretary of State. The Government, on the
other hand, submitted that the fixing
of the tariff was not part of the sentence of the court, but merely an aspect of
the administration
of the court’s sentence.
Article 6 § 1 of the
Convention requires any criminal charge to be determined by an independent and
impartial tribunal. The determination
of a criminal charge includes the
sentencing of a person who has been convicted (see the Eckle v. Germany judgment
of 15 July 1982,
Series A no. 51, pp. 34-35, §§ 76-77). The
formal sentence imposed under English law upon a child convicted of murder
does
not determine in any respect the period during which the child is to be deprived
of his liberty. The tariff fixed by the Secretary
of State, on the other hand,
determines (subject to review, under the policy announced in November 1997) any
minimum period of detention
to be served before release can be considered. The
tariff is punitive in character: the Secretary of State indeed described his
function,
in his statement of 10 November 1997, as “deciding what
punishment is required”. Deciding what punishment is required
in respect
of a person convicted of a criminal offence is in my opinion a sentencing
exercise, as the Appellate Committee of the
House of Lords recognised in the
proceedings brought by the applicant. It follows that Article 6 § 1 is
applicable to the fixing
of the tariff. The tariff must therefore be fixed by
“an independent and impartial tribunal”. Since the Secretary of
State is not independent of the executive, the fixing of the applicant’s
tariff by the Secretary of State violated Article
6 § 1.
In relation to
the issues arising under Article 5 § 1, Article 5 § 4 and Article 41
of the Convention, I agree with the
judgment of the Court and have nothing to
add.
PARTLY DISSENTING OPINION
OF JUDGES ROZAKIS AND COSTA
(Translation)
We voted with the majority on all points except one, namely the complaint
under Article 3 of the Convention concerning the sentence
imposed on the
applicants. We consider that this complaint is well-founded.
As the judgment
states, the two offenders were ten years old when they committed the crime. They
were just over eleven when they were
found guilty and sentenced to be detained
“during Her Majesty’s pleasure”. The “tariff”
portion of
the sentence was first fixed at fifteen years by the Home Secretary
on 22 July 1994. The murderers were then twelve. It should be
noted that the
judge who sentenced them had recommended a tariff of eight years, and the Lord
Chief Justice one of ten years. The
Home Secretary’s decision was taken
after he had received letters and petitions calling for a very high tariff or
life imprisonment
(see paragraph 22 of the judgment).
When that decision was
set aside, three years later, by the House of Lords, the Home Secretary informed
Parliament that he would review
the tariff originally set in the light of the
offenders’ progress and development (see paragraph 27 of the judgment),
but to
date no new decision has been taken.
In a case as exceptional as this
one it is extremely difficult to trace the dividing line between what is
“inhuman and degrading”
within the meaning of Article 3 and what is
not. In our opinion, the crucial factor for that assessment must be the
murderers’
extreme youth and immaturity at the time when they committed
their crime. They were ten years old; they are now seventeen and still
do not
know how much of their sentence they will have to serve to satisfy the
requirements of retribution and deterrence. That uncertainty,
which the two
applicants have lived with since the day they were sentenced, that is for more
than six years, has obviously caused
them considerable distress. But the
decisive point is that the applicants, who are now not far from adulthood, were
still only young
children when they committed the offences, when they were
arrested and detained pending trial and when they were convicted and
detained.
Can it be contended that this transformation, which has to do with
their age, should have no bearing on the decision to be taken concerning
the
length, and consequently the end, of the tariff period? Or that such a decision
can be the same as would be taken in respect
of adult murderers? We do not think
so. Admittedly, the majority held that there had been no violation because they
considered that
a term of six years’ imprisonment did not constitute
inhuman and degrading treatment (see paragraph 99 of the judgment). But
in doing
so they assessed only the period of time which has objectively elapsed to
date. They did not take account of the Home Secretary’s initial decision
fixing the length of the applicants’
sentence at fifteen years, which,
according to Dr Bentovim “devastated” V. (see paragraph 24 of the
judgment), or, above
all, of the total uncertainty about what term they must
serve that they have been in for two and a half years since the House of
Lords’ decision, and of the fact that there is no guarantee that the Home
Secretary will come to a new decision in the near
future. For all these reasons,
we think that although the conditions in which the applicants’ trial took
place did not breach
Article 3 of the Convention, there was a violation of
Article 3 on account of their sentence.
JOINT PARTLY DISSENTING OPINION
OF JUDGES PASTOR RIDRUEJO,
RESS, MAKARCZYK,
TULKENS AND BUTKEVYCH
In our view the applicants’ trial and their sentence taken together
amounted to inhuman and degrading treatment contrary to
Article 3 of the
Convention.
The combination in this case of (i) treating children of ten
years of age as criminally responsible, (ii) prosecuting them at the
age of
eleven in an adult court, and (iii) subjecting them to an indeterminate
sentence, reached a substantial level of mental and
physical suffering. Bringing
the whole weight of the adult criminal processes to bear on children as young as
eleven is, in our view,
a relic of times where the effect of the trial process
and sentencing on a child’s physical and psychological condition and
development as a human being was scarcely considered, if at all.
Article 3
guarantees an absolute right to protection against inhuman and degrading
treatment. Its focus is the suffering and the humiliation
a person is subjected
to. There is no reason to presume that the minimum level of suffering qualifying
as ill-treatment cannot be
inflicted by a court exercising its lawful authority
in the course of a trial, especially where, for a number of reasons, that trial
amounts to a public humiliation. We fully agree with the Court that the purpose
of the criminal proceedings brought against the applicants
was not in any
respect to humiliate or cause suffering to them. However, contrary to the
Court’s assessment, we are of the
view that the suffering or humiliation
of the person is wholly independent of whether or not the State authorities
acted with the
intention of humiliating the person, or causing suffering.
It seems to us that the authorities’ principal reason for bringing
these proceedings against children of eleven years of age
was retribution,
rather than humiliation. However, vengeance is not a form of justice and in
particular vengeance against children
in a civilised society should be
completely excluded. We would emphasise that for Article 3 what counts is not
the subjective element
(motive or purpose) on the part of the State, but the
objective effect on the persons involved.
By splitting up the
“treatment” into separate phases, i.e. the trial itself and the
sentencing, the majority loses sight
of the effect which the treatment in this
case must have had on the children’s physical well-being and psychological
balance.
We do not see how the trial as such and the sentencing consequent on
the outcome can properly be separated. Furthermore, considering
the age of
criminal responsibility in isolation from the trial process in an adult court is
a further factor which is likely to lead
to a distortion of the role of Article
3 of the Convention taken together with Article 1, that is, to secure effective
protection
against suffering and degrading treatment. The very low age of
criminal responsibility has always to be linked with the possibility
of adult
trial proceedings. That is why the vast majority of Contracting States have
eschewed such a very low age of criminal responsibility.
1. As far
as the age of criminal responsibility is concerned, we do not accept the
conclusion of the Court that no clear tendency can be ascertained from
developments amongst European States and
from international instruments. Only
four Contracting States out of forty-one are prepared to find criminal
responsibility at an
age as low as, or lower than, that applicable in England
and Wales. We have no doubt that there is a general standard amongst the
member
States of the Council of Europe under which there is a system of relative
criminal responsibility beginning at the age of
thirteen or fourteen –
with special court proceedings for juveniles – and providing for full
criminal responsibility
at the age of eighteen or above. Where children aged
from ten to about thirteen or fourteen have committed crimes, educational
measures
are imposed to try to integrate the young offender into society. Even
if Rule 4 of the Beijing Rules does not specify a minimum age
of criminal
responsibility, the very warning that the age should not be fixed too low
indicates that criminal responsibility and
maturity are related concepts. It is
clearly the view of the vast majority of the Contracting States that this kind
of maturity is
not present in children below the age of thirteen or fourteen. In
the present case, we are struck by the paradox that, whereas the
applicants were
deemed to have sufficient discrimination to engage their criminal
responsibility, a play area was made available
for them to use during
adjournments.
2. As far as the trial is concerned, the
Court recognises that there is an international tendency in favour of the
protection of the privacy of juvenile defendants. It
nevertheless finds that a
lack of privacy cannot be decisive for the question whether the trial in public
amounted to treatment attaining
the minimum level of severity necessary to bring
it within the scope of Article 3 of the Convention (see paragraph 77 of the
judgment).
According to Article 40 of the United Nations Convention on the
Rights of the Child, privacy has to be “fully respected
at all stages of
the proceedings”, and it is a crucial element in minimising the suffering
and humiliation of children. Although
the United Nations Convention is binding
on the United Kingdom, English law nevertheless allows lengthy criminal
proceedings to be
held in public in an adult court with all the attendant
formality. Even if the trial judge did take certain steps to limit the impact
of
the trial on the children, for children of this age in an already disturbed
emotional state the experience of the trial must have
been unbearable. The
children were seated on a platform where they could be seen by the public and
the press, and there is evidence
that they found the public nature of the trial
especially difficult to cope with, in particular since they perceived the public
as
hostile: on one occasion the van that brought them to court was attacked and
by the time of the trial there had already been a virulent
press campaign which
prompted their representatives to apply to the judge for a stay of proceedings.
Before this audience of members
of the public and journalists the applicants had
to begin the process of coming to terms with the crimes which they had
committed.
They had to listen to the witnesses’ accounts of the events of
the day in question and the tapes of their own interviews with
the police. They
had to hear the jury’s verdict of guilty and the judge passing the
sentence. At the end of this public exposure
they were informed that the judge
had decided to lift the ban on the publication of their names. We have no doubt
that such proceedings
could be expected to produce a lasting harmful effect on
an eleven-year-old child, and a high level of suffering. Thus, Sir Michael
Rutter in his report on V. dated February 1998 expressed the opinion, inter
alia, that the holding of a trial in public and the negative public reaction
could potentially be damaging to a child of his age (see
paragraph 19 of the
judgment).
Besides the nature of the treatment, its effect on
the children is a further relevant criterion in connection with Article 3. The
applicant V. cried throughout most of the trial.
The applicants’
therapists have stated that the effect of the trial and the impact on
their families and attacks and other reprisals by members of the public and
fellow prisoners are, to this day, hampering
the applicants’ progress in
coming to terms with what they have done and what has happened to them. We
cannot accept that “any
proceedings or inquiry to determine the
circumstances of the acts committed by T. and [V.], whether such inquiry had
been carried
out in public or in private, ... would have provoked in the
applicant[s] feelings of guilt, distress, anguish and fear” (see
paragraph
79 of the judgment).
According to the psychiatric evidence relating to the
effects of the trial process on the children, both showed signs of
post-traumatic
stress disorder. There is furthermore evidence showing that V.
was distressed and frightened by the trial and that these effects
lasted a year
or more. Thus, Dr Bentovim in January 1995 reported that V. described a
sense of shock at seeing the public let
in to the courtroom, a terror at being
looked at and considerable distress when his name and photograph were published.
At the time
of the doctor’s examination, V. was suffering from a high
level of fear that he would be attacked and punished. In her report
of November
1997 Dr Bailey found that it took V. twelve months to get over the trial
and that he still thought about it every
night. She reported that he had been
most scared at the first hearing at the magistrates’ court, and that after
the first three
days in the Crown Court he had felt better because he had
stopped listening.
Even if the evidence that V. experienced a high level of
intense suffering at the time of the trial is clearer than for T., it can
be
concluded that this kind of trial caused suffering and humiliation to both
children at a level which went beyond the needs of
“any proceedings or
inquiry to determine the circumstances of the acts committed” and which
reached the minimum level
of inhuman and degrading
treatment.
3. As far as the sentence is concerned, an
important element to be taken into account in relation to Article 3 is the
sentence of detention during Her Majesty’s pleasure,
i.e. for an
indefinite period. This sentencing entailed an enormous amount of uncertainty
and anxiety for the two children. It is
questionable whether the Convention
allows States to subject an eleven-year-old child to an indeterminate sentence
on conviction,
but the special duty of care on States to ensure that children
are not subjected to inhuman treatment obliges the State to reduce
the
uncertainty as far as possible. After the trial judge had recommended a tariff
of eight years, the Lord Chief Justice made a
recommendation of ten years. Then
the Home Secretary who had received, inter alia, a petition signed by
278,300 people expressing the view that the applicants should never be released
set their tariffs at fifteen
years. It is difficult to imagine how a child could
conceive of such a sentence, but the reaction of V. that he feared that he would
never be released comes as no surprise. This tariff was itself quashed by the
House of Lords and no new tariff has been set. So the
uncertainty remains. The
Court, in our view, has only taken into account (see paragraph 99 of the
judgment) the fact that both children
have now been detained for six years,
finding it impossible to draw any conclusion regarding the compatibility with
Article 3 until
a new tariff has been set. But the problem lies in the very
passing of a sentence of an indefinite nature: the uncertainty and anxiety
for
persons as vulnerable as children inevitably add another element of
suffering.
In conclusion, for us, the public nature of the trial not only
contributed to the inhuman but also to the degrading treatment, and
the fact
that the applicants were tried in accordance with the same criminal procedure as
adults and sentenced without sufficient
account being taken of the fact that
they were children must be qualified as inhuman.
It is no answer to a
complaint under Article 3 to find a violation of Article 6 § 1. The
Articles have different aims and objects of protection. Article 3
prohibits suffering and humiliation, whilst Article 6 in this case guarantees
effective participation
in the trial. By focusing mainly on the possibility for
children of eleven to participate effectively in an adult Crown Court procedure,
the majority of the Court has in our view failed sufficiently to address the
suffering and humiliation which such a procedure inevitably
entails for
children. In the present case the Crown Court certainly did everything it could;
it was the system within which it had
to operate, taken as a whole, both in
principle and in practice, which gave rise to a breach of Article 3 of the
Convention.
We are fully aware of the terrible character of the crime
committed, and we have had regard to the written comments filed by the parents
of the murdered child. Articles 2 and 3 impose a positive obligation on States
to protect victims against crimes of violence by providing
effective deterrence.
However, in circumstances such as those at issue here, where the offenders were
themselves children at the
time of the crime and trial, we do not consider that
the positive obligation under Article 3 in respect of the victims of an offence
can justify the suspension of the rights of the offender. We think that the most
effective way to acknowledge the suffering of victims
and to protect society is
to respect the most fundamental and absolute rights of offenders, especially
– and above all –
where those offenders are eleven-year-old
children.
PARTLY DISSENTING OPINION OF JUDGE BAKA
While I fully share the view of the majority of the Court that there has been
no violation of Article 3, I have concluded that the
applicant had a fair trial
in the instant case for the following reasons.
Article 6 § 1 of the
Convention embodies the general rule that justice should be administered in
public in a way which affords
the accused the full possibility to participate
effectively in the conduct of his or her case. This rule is subject to the
proviso
that “the press and the public may be excluded from all or part of
the trial ... where the interests of juveniles ... so require”.
Neither
the text of Article 6 § 1 nor its interpretation in the case-law, however,
goes so far as to require that a child charged
with a criminal offence should
always be tried either by a juvenile court or by an adult court in private. It
follows that the mere
fact of subjecting a child to a public trial in an adult
court does not in itself amount to a denial of a fair hearing under Article
6
§ 1 of the Convention.
The majority of the Court relied heavily on the
argument that the applicant’s public trial in the Crown Court in the
present
case was “intimidating for a child of eleven” and that
“in the tense courtroom and under public scrutiny”
the applicant was
unable to participate effectively in the criminal proceedings against him.
I
am of the opinion that any (public or in camera) trial of a serious criminal
charge almost inevitably causes strong feelings of
anxiety, fear and distress as
a result of the fact that the accused person has to face – sometimes for
the first time –
the serious consequences of the acts committed. I also
accept that these natural feelings could limit, wholly or partly, the accused
person’s (adult or child) ability to participate actively in the criminal
proceedings against him or her. Even admitting that
this is potentially more so
in the case of a child, would this subjective feeling and its possible
handicapping impact on his or
her actions during the trial be enough to ground a
finding that the criminal proceedings against him were unfair? I do not think
so. To hold otherwise would require examination of the actual effect of these
subjective factors on how the child behaved at the
trial and on whether the
child was able to contribute efficaciously to his or her defence. Moreover, it
would also have to be shown
that the child was prevented from active
participation in the conduct of his or her case not because of the almost
automatic and
natural psychological consequences of a criminal trial, but more
specifically by reason of the public nature of the proceedings.
I think that
this goes too far.
In the present case the authorities took a series of
special measures designed to ensure that the accused boys could participate
adequately
in the trial. These measures included familiarising them with the
courtroom, an explanation of the procedure, a shortened court day
with regular
break intervals corresponding to the normal school schedule and the presence of
social workers prior to and during proceedings.
The trial judge also made it
clear that he would adjourn whenever the social workers or defence lawyers told
him that one of the
defendants was showing signs of tiredness or
stress.
Under these circumstances, when the ordinary court procedure had been
tailored to take into account his young age, it is difficult
to say that the
applicant did not receive a fair trial under Article 6. If the applicant was
unable to participate effectively in
the proceedings, it was not because his
case was tried publicly by an adult court but rather because his position
objectively was
not significantly different from that of accused persons who are
lacking legal knowledge, suffering mental disease or of low intelligence,
such
that they can be said to be subjects of the criminal process rather than active
participants in it. In this situation, fairness
of a criminal trial cannot mean
much more than ensuring that the child is defended adequately by highly trained
professional counsel
and that the necessary facilities for the defence are fully
provided – as they were in the present case. In terms of fairness
of
criminal proceedings, it is rather illusory to expect that a child of this age
could give any legally relevant instruction to
his or her lawyer in order to
facilitate his or her defence.
On the above basis, I found no breach of
Article 6 § 1 as regards the fairness of the trial.
[1]-2. Note by the Registry.
Protocol No. 11 and the Rules of Court came into force on 1 November
1998.
[1]. Note by the
Registry. Myra Hindley was convicted of murder in 1966 and is still
detained.
[1]. Note by the
Registry. For practical reasons this annex will appear only with the final
printed version of the judgment (in the official reports of selected
judgments
and decisions of the Court), but a copy of the Commission’s report is
obtainable from the Registry.
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