Moving away from the lynch mob

Shocking crimes by a handful of children have been exploited to show how hard we are becoming on law and order

After the "law and order" hype from politicians and the "life must mean life" petitions from Sun readers, a group of quiet men in suits has finally restored a sense of rational judgement and civilisation to the criminal justice system. Up to a point, at any rate.

A three-to-two majority of the highest court in the land (in suits because law lords are above the paraphernalia of wigs and gowns) has emphasised something that should be obvious: children - even those who commit the heinous crime of murder, and even the two boys who took away the life of James Bulger - are different from adults.

It was certainly obvious enough to the drafters of the UN Minimum Standards on the Administration of Juvenile Justice. These enshrine three principles: that children and young people should be treated differently from adults; that they should be punished less severely; and that the primary purpose of action taken in relation to them should be rehabilitative. In 1908, the Child Act abolished the death sentence for children long before it was swept away for adults, and the 1933 Children and Young Persons Act makes it clear that a child cannot be sentenced to a mandatory life sentence.

Readers of the tabloids, to whom Michael Howard, the former Home Secretary, seemed content to play during the last Conservative administration, insisted they knew better. But has the world changed so very much since these laws and conventions were made? The number of children who kill or commit other similarly serious offences hasn't. Figures have remained small - no more than three dozen a year, often less - for the past decade and a half, but how such offenders are treated is one sign of whether or not we live in a society we can call civilised.

No, what has changed is that the shocking crimes of a handful of children from, usually, disturbed backgrounds and, certainly, with serious psychological problems, have been exploited to show how hard we are becoming on law and order. Life should mean life for Robert Thompson and Jon Venables, the then 10-year-old killers of the Liverpool toddler, and for some preferably death, in the eyes of the lynch-mob, the thousands of people who signed petitions and letters. Mr Howard could not deliver that but he upped the 10-year penal "tariff" fixed by the then Lord Chief Justice by 50 per cent to 15 years.

Whatever Sun readers might like to think, life has rarely meant life. But what grew into the system of "tariffs" - the minimum periods to be served to satisfy retribution and deterrence, but still enabling continued detention where the offender poses a risk - is widely misunderstood by the public. A 1983 parliamentary statement by the then Conservative Home Secretary, Leon Brittan, set out a clear distinction between the penal or tariff element of a life sentence, for which the advice of the judiciary would be sought, and the risk element, for which it would not. But another distinction, that juveniles were supposed to be treated more flexibly and less punitively than adults, began to be eroded.

The European Court of Human Rights at Strasbourg has since ruled that the release date of adult discretionary lifers - those serving life terms other than for murder - and of children detained during Her Majesty's Pleasure for serious offences, cannot be left in the hands of a politician but must be decided by a "court-like" body such as the Parole Board, once the "penal" element has been served.

Declaring the setting of fixed penal tariffs by Home Secretaries illegal in children's cases - as two High Court judges did in the first leg of the Thompson and Venables challenge - would have been the next logical step and the one which many observers believe that the human rights court will eventually insist upon. But in spite of the fact that Parliament has never given its express authority for the policy in a statute, the law lords have only moved so far in that direction.

Three of the five hearing the case have censored the former Home Secretary for applying the tariff policy too rigidly and inflexibly and have made it clear that future Home Secretaries must reconsider their provisional decisions from time to time, but have avoided tackling the fundamental question of whether Home Secretaries should have any role at all in the sentencing of child offenders for serious crimes.

The ruling does not stop the imposition of a 15-year - or longer - provisional tariff in the future, as long as it is clear that the minister is prepared to recognise that a child's development might call for a rethink. And while the judges have bucked the punitive trend by emphasising that the welfare of the child is an important factor, there has been no full-scale return to the concept of "juvenile justice".

The judgments leave open the question of when a first review of detention might take place, and the new regime set out by the judges falls short of the annual reviews of detention recommended by penal experts. For all these reasons the case will now be taken to the Strasbourg court. Jack Straw, the new Home Secretary, who will preside over the promised incorporation of the convention into UK law, would do better to give in gracefully now, and institute a review of the law relating to children who kill.

Justice, the British section of the International Commission of Jurists, has proposed a number of further reforms, such as raising the age of criminality to 14, or failing that a bar on public trials for the under-14s, and, most radically of all, replacing the two offences of murder and manslaughter with a single offence of homicide coupled with full sentencing discretion for judges.

As it is, we are left with a system with an unhealthy preoccupation with highly public trials that could have been designed to whip up prejudice and misunderstanding, but which are ill-suited, as the Bulger case so graphically showed, to finding out the truth.