We're guilty of failing young offenders

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The Independent Culture
IT IS the instinct of every parent to identify with the pain of Denise Fergus and Ralph Bulger, and to imagine for a numbing moment what it must be like to lose your tiny son in the enactment of a uniquely barbaric murder. It is with more of an effort of will that a parent puts herself in the place of the parents of Jon Venables or Robert Thompson, and attempts to work out what it must be like to be confronted with the fact that your child has perpetrated the most terrible of crimes.

But what the parents of these boys want for their children is what any decent parent would want - for their children to be treated with fairness and with impartiality by the judicial and the penal system. The European Court has ruled that in certain respects, Britain failed to carry out these obligations to the boys. Opinion, unsurprisingly, remains deeply divided over this highly emotive case. But what should worry us most are the complaints from politicians like Lord Tebbit and Ann Widdecombe, who suggest that the European Court of Human Rights should keep their noses out of our legal affairs, coupled with jingoistic and sadly inaccurate boasts that our legal system is "the best in the world".

For the issues raised in this particular case are merely the tip of the iceberg when it comes to the legal treatment of children in this country. The truth is that while mistakes were made, on the whole the trial and imprisonment of Thompson and Venables has been exemplary. In that sense it was a show trial, carefully considered to assuage public opinion while at the same time guaranteeing the boys with as positive a future as was possible. The later intercession of Michael Howard, the then Home Secretary, had been condemned and overturned by the Law Lords long before the European Court's own judgment and there is broad-ranging agreement that the right of home secretaries to set tariffs for children - perhaps even for adults - is not desirable.

But it is not only by the standards of the European Court of Human Rights that Britain's treatment of juveniles is measured and found wanting. Britain signed the UN Convention on the Rights of the Child in 1991, and is one of nearly 200 states to count itself as a signatory. But as a report in March from the Howard League For Penal Reform made clear, Britain not only "has failed to maintain some of those important protections", but has in some instances "positively undermined them".

One could perhaps argue that this is almost inevitably going to be the case in a country run by a government that promised, as a manifesto commitment, that "young offenders will be punished". But all parents would do well in this latest round of the Bulger affair to consider what that really means.

Our offenders are younger than any in Europe. The age of criminal responsibility is 10 in England and Wales (the age of Thompson and Venables when they killed James Bulger) while in Scotland it is an astounding eight years old. Further, under Jack Straw's Crime and Disorder Act of 1998, children under 10 can be made subject to curfews even though they have not been convicted of any offence. Even the Police Federation has said that it does not consider the under-10s to present a particular problem. Nevertheless, the new Child Safety Order is also designed to target under 10s, and can be given by the court if a child is deemed to have done something which would have been deemed an offence if he were over 10.

For children of 10 to 14, the protection of doli incapax (which presumes young children do not know the difference between right and wrong) has been removed, with the result that children from the age of 10 are treated as having the same criminal intent and maturity as an adult when deciding guilt or innocence. All of this undermines the principles of the UN Convention.

As for children in adult courts, although this was a key issue in the Bulger trial, it has long been possible under British law to try 10-year- olds in an adult court for murder. What the Howard League is concerned about is the fact that under the Criminal Justice and Public Order Act 1994, all children aged 10 to 13 can be tried on indictment by the Crown Court. The Howard League asserts that this has resulted in more children being tried in adult courts and receiving longer sentences. The organisation suggests that "a separate court system needs to be established for all children, regardless of the offence they have allegedly committed".

While this may seem draconian enough, a trial that results in a custodial sentence has become, for various reasons, a much more common occurrence. The Criminal Justice Act widened the ability of the court to convict children for "grave offences". (Previously, only murder was considered a grave offence for 10-14-year-olds. The result has been that since 1995 the number of children serving custodial sentences has increased by 17 per cent. The number of girls given custodial sentences increased by 45 per cent between 1995 and 1997.

A significant proportion of children are held not in young offenders institutions, but in adult prisons. For boys, when the prison does not have a children's wing, they are kept in the hospital wing. For girls, horrifically, there is no alternative to adult prisons at all. In 1997, the Chief Inspector of Prisons, Sir David Ramsbotham, produced what the Howard League describes as "a highly critical report on the way most children are held in custody in England and Wales". He again recommends a separate framework for children.

But even in young offenders institutions, there are worrying levels of violence and self-harm. No wonder. Instead of offering the kind of education and rehabilitation that has been embraced by Thompson and Venables, the rules offer a minimum provision of just 15 hours of education a week for under-17s, but often do not achieve it. It is worse when children are on remand, when they are sometimes kept in a cell for 23 hours a day. In fact, while the UN convention states that the welfare of the child should be the primary consideration, the Government has argued that it should be just one consideration alongside "punishment, risk and public confidence". I would not like to think of the welfare of my children being sacrificed on the alter of "public confidence", and fail to see how this might help in the rehabilitation of a child.

In the light of this, and much more, it should come as no surprise to hear of the Howard League's conclusion, which, while it praises the Government for its many positive measures for dealing with children who commit less serious offences, suggests that "the thrust of the changes negates the immaturity of these young people and treats them as if they were adults. In this way the fundamental spirit and purpose of the UN Convention is undermined".

Also undermined is hope. Under these circumstances a young person removed from a troubled household after committing crimes that may be truly understood as not the fault of the child, will be unlikely to find a custodial sentence to be the start of a better life. Instead, for many lost children, it is all downhill. Can we really be trusted to look after our own judicial system without interference from the international community? It doesn't look like it to me.