Paul Cavadino says the James Bulger murder trial revealed the way our legal system treats children who kill is out of sync with the rest of Europe. Paul Cavadino is director of policy at the National Association for Care and Resettlement of Offenders.
The decision by the European Commission of Human Rights to refer the case of the two boys who killed James Bulger to the European Court should mean a shake-up in the way we deal with children who kill.
Many contributing factors can produce the type of disturbances that lead children to commit murder. These include physical abuse; sexual abuse; exposure to repetitive or extreme violence; traumatic loss; parental mental disturbance; parental rejection; neurological abnormalities; drug abuse; and, in some cases, mental illness.
Juvenile homicides typically result from a conjunction of such factors with other triggering circumstances, such as the friendship of two young people with complementary disturbed personalities or, in adolescence, the escalation of behaviour through gang participation.
Over time, such young people can be helped to face their unresolved childhood traumas; develop and mature emotionally; reach an appropriate sense of guilt; and learn to control their emotional and aggressive impulses. However, our criminal justice system frequently hinders rather than helps in this process.
In the Bulger case, most foreign commentators were amazed that two 11-year-olds should be dealt with by an adult-style Crown Court criminal trial. They questioned whether such young children could grasp the complexities of a lengthy criminal trial; whether they could understand the issues and language used in order to give clear instructions; if they should have appeared in the full glare of the media; and whether it was right for their names to be reported after their conviction, given the difficulties which this would pose for their rehabilitation. The nine-month delay before the trial, during which the defendants received no treatment in case it prejudiced their pleas, was another clearly unsatisfactory feature.
Overseas observers are also startled by a system where juveniles found guilty of murder receive mandatory sentences of detention during Her Majesty's pleasure and government ministers are involved in setting minimum "tariff" periods of detention. When politicians make such decisions in high-profile cases, there is an obvious risk they may be influenced by electoral popularity rather than the merits of the case, as has been seen in the US.
In most other European countries, children under 14 who commit offences do not appear before criminal courts. They are dealt with by family courts concerned with the need for compulsory measures of care. In France, the age of criminal responsibility is 13, in Germany, Austria and Italy it is 14, in the Scandinavian countries 15, Spain and Portugal 16 and Belgium 18. In eastern Europe, it ranges from 14 to 16. Only two other European countries, France and The Netherlands, have indeterminate sentences for convicted juveniles. In both these countries, such sentences are regularly reviewed by judges, who can order the person's conditional release.
The Government should now anticipate the judgment in the forthcoming European Court case by replacing the present system with an approach geared to the needs of seriously disturbed children.
The age of criminal responsibility should be raised to 14. Below this age, child offenders should be dealt with by the family proceedings court as children in need of compulsory measures of care.
When young people are of the age of criminal responsibility, there should be early pleas and accelerated hearings with a view to the early initiation of treatment and therapy. And hearings should be held in private and presided over by specially trained judges.
There should be no mandatory sentences and courts should have the discretion to sentence according to the circumstances of the individual case. When indeterminate sentences are passed, periods of detention should be determined and regularly reviewed by a judicial body. Its decisions should be based on the progress of the treatment programme, the young person's development and whether it is now safe to release them. Such an approach would be more just, more humane and would better serve the needs of society than our present system, which is so markedly out of line with the rest of Europe.