II COUNCIL OF EUROPE
| Author | Leo Zwaak |
| Date | 01 March 2000 |
| Published date | 01 March 2000 |
| DOI | 10.1177/092405190001800106 |
| Subject Matter | Article |
NQHR
112000
II COUNCIL OF EUROPE
Leo Zwaak
European Court of Human Rights
16 December 1999, T. v. the United Kingdom and V. v, the United Kingdom. The
applicants, British citizens born in August 1982 who asked the Court not to reveal their
names, were convicted in November 1993
of
the abduction and murder
of
atwo-year-old
boy. They were ten years old at the time
of
the offence, and eleven at the time
of
their
trial, which took place in public in the Crown Court and attracted high levels
of
press and
public interest. Following their conviction, the applicants were sentenced to be detained
indefinitely, 'during Her Majesty's pleasure'. According to English law and practice,
children and young persons sentenced to be detained during Her Majesty's pleasure must
first serve a
'tariff
period, set by the Home Secretary, to satisfy the requirements
of
retribution and deterrence. Following the expiry
of
the tariff, detainees must be released
unless, in the view
of
the Parole Board, they represent adanger to the public. The Home
Secretary set a tariff
of
15 years in respect
of
each applicant. This decision was quashed
in judicial review proceedings by the House
of
Lords on 12 June 1997. Since that date,
no new tariff has yet been set.
The applicants complained that, in view
of
their young age, their trial in public in an
adult Crown Court and the punitive nature
of
their sentence constituted violations
of
their
right not to be subjected to inhuman or degrading treatment or punishment as guaranteed
under Article 3. They further complained that they were denied a fair trial in breach
of
Article 6. In addition, they contended that the sentence imposed on them
of
detention at
Her Majesty's pleasure amounted to a breach
of
their 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 their rights under Article 6. Finally, they complained under Article 5(4)
that, to date, they had not had the opportunity to have the continuing lawfulness
of
their
detention examined by a judicial body, such as the Parole Board.
The Government submitted that the applicants' complaints that, in view
of
their young
age and degree
of
emotional disturbance, their trial in public had amounted to inhuman
and degrading treatment contrary to Article 3
of
the Convention and that they had not
been able fully to understand or participate in the trial in breach
of
Article 6(1), should
be declared inadmissible on grounds
of
non-exhaustion
of
domestic remedies because they
had not raised any complaint or appeal during the national proceedings. The Government
were not, however, able to refer to any example
of
a case where an accused under a
disability falling short
of
that required under English law to establish unfitness to plead,
had 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 had been able to obtain a stay on the basis that trial in public in the Crown
Court would cause him detriment or suffering. The Court therefore rejected the
preliminary objection.
The Court considered first whether the attribution
of
criminal responsibility to the
applicants in respect
of
acts committed at the age
of
ten could in itself amount to inhuman
or degrading 'treatment. It did not find that there was any clear common standard amongst
the Member States
of
the Council
of
Europe as to the minimum age
of
criminal
82
Human Rights News
responsibility. While most had adopted an age-limit which was higher than that in force
in England and Wales, other States, such as Cyprus, Ireland, Liechtenstein and
Switzerland, attributed criminal responsibility from a younger age, and no clear tendency
could be ascertained from examination
of
the relevant international texts and instruments,
for example, the United Nations Convention on the Rights
of
the Child. Even
if
England
and Wales were among the few European jurisdictions to retain a low age
of
criminal
responsibility, the age
of
ten could not be said to be so young as to differ
disproportionately to the age limit followed by other European States. The attribution
of
criminal responsibility to the applicants did not, therefore, in itself give rise to a breach
of
Article 3.
The second part
of
the complaint under Article 3 concerning the trial related to the fact
that it took place over three weeks in public in an adult Crown Court with attendant
formality. The Court recognised that the proceedings were not motivated by any intention
on the part
of
the State authorities to humiliate the applicants or cause them 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. Moreover,
although there was psychiatric evidence that such proceedings could be expected to have
a harmful effect on
ll-year-old
children, any inquiry into the killing
of
the two-year-old,
whether it 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 applicants
feelings
of
guilt, distress, anguish and fear. Whilst the public nature
of
the proceedings
may have exacerbated these feelings to a certain extent, the Court was not convinced that
the particular features
of
the trial process 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 applicants. In conclusion, therefore, it did not find that the
applicants' trial gave rise to a violation
of
Article 3.
Article 6, read as a whole, guarantees the right
of
an accused to participate effectively
in his criminal trial. This was the first time that the Court had had to examine how this
should apply 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. It considered it essential that a child charged with an offence should be 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. In respect
of
a young child charged with a grave offence
attracting high levels
of
media and public interest, this can mean that it is necessary to
conduct the hearing in private, so as to reduce as far as possible the child's feelings
of
intimidation and inhibition. The applicants' trial took place over three weeks in public in
the Crown Court. It generated extremely high levels
of
press and public interest, both
inside and outside the court room, 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. Special measures were taken in view
of
the applicants' youth, for example, the trial procedure was explained to them, they were
taken to see the court-room in advance, and the hearing times were shortened so as not
to tire them 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 court room, in particular the raised
dock which was designed to enable the applicants to see what was going on, had the effect
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