James Bulger's murderers must get justice from an adult world

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THE BOYS looked so tiny. Those of us in court knew, everyone in the country knew, some of what they'd done to James Bulger. We'd seen the video images of the abduction; we'd followed the murder hunt; we'd read the articles about a brutalised generation of juvenile criminals. But we weren't prepared for the children who stepped into the specially raised dock - lost, distressed, overawed, terrified, blinking like small animals hauled up out of the earth into the light. This was an adult court and, though we knew the defendants were only 10, somehow it was adults we'd been expecting.

People said the trial would allay the anguish of James Bulger's parents, that it would achieve a kind of catharsis for a nation traumatised by the murder, that it would allow justice to be done, and to be seen to be done. None of these hopes has been fulfilled. Robert Thompson and Jon Venables were found guilty of murder, but the Bulger family remain angry and unappeased. Last week they presented a 280,000-signature petition to the Home Office demanding that the boys never be released; they were also reported to be outraged by two photographic exhibits at the Whitechapel Gallery, London, intended as a 'memorial' to James. The public, too, still seems bewildered by the murder - in part, perhaps, because a crucial element, the probable sexual abuse of James before he died, was underplayed during the trial out of sensitivity to his family.

And now even the justice of the case is being called into question. Last week, an appeal was lodged with the European Commission on Human Rights, which will be asked to consider, among other things, whether the trial of children in an adult court didn't constitute 'inhuman and degrading' treatment; whether 10-year-olds can be held fully accountable for their actions; whether the Home Secretary, whose business is political expediency not legal precision, is the right person to determine length of sentence; and whether the continued liability of the boys to be detained indefinitely, after the official 'punitive' sentence has lapsed, is not a further breach of human rights. The Commission will make an assessment; if it upholds the appeal, the British government will be invited to put its house in order.

Some will say the case should have been left to lie, that this is just defence lawyers trying it on. But they are wrong. There are times when a nation needs to measure its laws and values against the laws and values of the wider world.

For Britain is badly out of line with the rest of Europe. In France, where three boys aged between 8 and 10 who kicked to death a tramp last October were discharged and returned to their families, the age of criminal responsibility is 13. In Germany it is 14, in Sweden and Norway 15, in Spain 16. The thinking is simple: children, whose short lives are shaped by grown-ups, should not be considered as adults.

There are other points the European Court will want to consider. First, Thompson and Venables could not participate in their own trial. Yes, allowance was made for their short attention spans (the court day was the length of a school day), and their legal representatives did try to explain the proceedings to them. But in reality the boys showed little signs of understanding what was happening: I remember, for example, one barrister using the metaphor of a broad brush, and Robert Thompson leaning across to ask his social worker, 'What's a broad brush?'. The defendants became almost invisible presences. In his summing- up of their police interviews, Mr Justice Morland, an impeccably liberal and solicitous judge, even mimicked their accents ('yeah', 'On mi own') as if they weren't there and as he surely wouldn't have with adults.

Second, children do not behave with adult motives. The police, who began the murder hunt thinking they were looking for 14-year-olds, believed that the abduction and death of James had been carefully planned. But calculating murderers do not draw attention to themselves as Thompson and Venables did on the journey to the railway line; they do not stop pedestrians and say they have a lost child and ask the way to the police station. Nor, when interrogated, do 'cunning' adult liars lie with the primitive self-protectiveness of Robert Thompson or the fantasising implausibility of Jon Venables. And yet the lies these two told became central to the case against them.

Third, 10-year-olds do not understand right and wrong as adults do. Teachers and psychiatrists testified convincingly that Thompson and Venables did know the difference; one headteacher even said that all four-year-olds entering her school possess this moral sense. But four-year-olds also believe in the man in the moon. Robert Thompson spoke at one point of James Bulger being taken to hospital 'to try and get him alive again'; Jon Venables, disturbed by violent videos, 'thought they were real and (he) would cry'. Is this a mature grasp of actuality? Do children grasp that badly hurting someone is much more wrong than stealing sweets or truanting? Do they have our sense of the awful irreversibility of battering a child to death?

The questions might be framed another way: if children of 10 do know right from wrong, why not juries of 10-year-olds? Why, since a jury implies judgement by peers, would we have felt unhappy if Thompson and Venables had been tried by 10-year-olds? Why would we feel unhappy about being tried by 10-year-olds ourselves? Because we wouldn't trust their judgement, maturity and intelligence - the same qualities that were said to be present in Thompson and Venables when they killed.

'Childhood has its ways of seeing, thinking and feeling,' wrote Rousseau in Emile. 'Nothing is less sensible than to want to substitute ours for theirs, and I would like as little to insist that a 10-year-old be five feet tall as that he possess judgement.' Rousseau is surely right: we shouldn't grant children a largeness intellectually which they lack physically.

Whatever the European Court's assessment, Thompson and Venables will remain in secure units for many years. But most of the lawyers I talked to at their trial were profoundly unhappy that it took place as it did. They felt a special juvenile court would have been more appropriate; they disliked the feeling of theatrical spectacle; they hoped such a trial would never happen again.

The Europe to which we now look for the values of enlightenment and humanity is the same Europe in which, from the Middle Ages until the late 19th century, pigs that ate infants, weevils that spoilt crops and mules that received sexual favours from farmers could face prosecution and capital punishment for their crimes. Those animal trials came out of a culture of superstition and barbarity. But the psychological crudeness and legal bludgeoning brought to bear on the case of Robert Thompson and Jon Venables will one day be seen here - in some countries is already seen - in the same light.

Neal Ascherson is on holiday.