Alternative Law Journal
Australia's international obligations require us to look closely at how we try children charged with serious offences.
The European Court of Human Rights recently decided that the human rights of two juvenile defendants in the United Kingdom were breached by their murder trial and subsequent sentence. The complaint was made by Robert Thompson and Jon Venables, who were convicted in 1993 of infant James Bulger’s homicide. The European Court held that the trial and sentencing of the two boys breached rights conferred on them by international law. Given the similarities between the British criminal justice system and our own, that decision deserves careful analysis for the implications that it holds for Australia. While the court focused on some features that are specific to the British criminal justice system, the court also criticised several practices that are common to both countries.
This article summarises the main findings of the European Court of Human Rights in the cases of T and V v The United Kingdom, and will then go on to consider what implications this case holds for Australia’s treatment of juvenile offenders. While an exhaustive analysis of the Australian juvenile justice system is beyond the scope of this article, the discussion will indicate features of the system which should now be seen as problematic following the articulation of a new international standard by the European Court of Human Rights.
The international instruments that most clearly impact on juvenile justice and to which Australia is signatory are the International Covenant of Civil and Political Rights (ICCPR) and the United Nations Convention on the Rights of the Child (CROC). The European Convention on Human Rights, to which most European countries are signatory, only applies to European states. Attention should also be paid to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), which set down standards relating to children and criminal process. While these rules are not binding in international law, they have been adopted by the United Nations General Assembly, so should still be seen as influential in terms of internationally acceptable standards.
International laws are not binding domestically unless they are incorporated into a nation’s body of laws, either through an act of parliament or through developments in the common law. Nevertheless, there are various mechanisms which potentially lend force to international laws. Since Australia adopted the First Protocol to the ICCPR, individuals have standing to complain to an international committee to seek a ruling on whether a government’s actions have breached the ICCPR. There is no individual complaint mechanism in respect of CROC, but international scrutiny is provided by the UN Special Rapporteur on the Rights of the Child. While these channels do not in themselves generate enforceable sanctions, few governments view such official condemnation lightly. Unfortunately, there is a tendency for governments to be Janus faced when it comes to honouring international obligations. While governments are generally happy to sign international treaties, tacitly recognising their validity as external benchmarks against which a nation’s treatment of its citizens might be judged, specific criticisms are often met with the objection that no external body has the right to interfere in domestic affairs.
Another problem is the difficulty in determining when a practice is in breach of international law, with many international obligations expressed in broad and general terms. Indeed, international laws must be couched broadly so as to accommodate a large diversity of state practices. The laws must be underpinned by a rough consensus amongst signatories, and the process of translating cultural, philosophical and religious diversity into internationally acceptable norms is inevitably one of dilution and compromise. Nevertheless, more specific obligations are gradually being grafted onto the general standards, as individual cases come before international bodies for their consideration.
The European Court of Human Rights is the international body which hears complaints that signatories to European Conventions have breached their obligations under those instruments. Accordingly, Australia is not subject to the jurisdiction of that particular international body. Nevertheless, Australia has signed international instruments containing similar obligations, and the European Court’s decision in Thompson and Venables should be seen as an important source of information about the standards which are developing at the international level regarding juvenile justice and human rights.
While the facts of the case are well known they will be briefly summarised. In 1993, Thompson and Venables, who were ten at the time, abducted two-year-old James Bulger from a shopping centre, assaulted him repeatedly over the course of a four kilometre journey and battered him to death, leaving his body to be mutilated on a train track. Numerous onlookers witnessed the abduction but declined to help, believing that the older boys were either brothers or friends of the toddler. This latter fact arguably exacerbated the enormous pain and grief that the public experienced at the little boy’s terrible homicide. The then Home Secretary, Michael Howard, received a petition of 278,000 signatories and 21,000 coupons from the Sun newspaper demanding that the boys be incarcerated for life without the possibility of release. 
In the United Kingdom, a judge sentencing a defendant convicted of homicide is required to impose a life sentence, although the trial judge recommends an appropriate ‘tariff’, which equates to the number of years that must be served to satisfy the demands of deterrence and retribution. The tariff, which essentially functions as a minimum term, is ultimately set by the Home Secretary, who is not constrained by the sentencing judge’s recommendation. At the conclusion of the minimum term, the parole board then determines when the offender can safely be released, a decision which was, until 1996, also taken by the Home Secretary. In the case of juvenile defendants convicted of murder, the judge is required to sentence the offender to be detained during her Majesty’s pleasure, a sentence that is similar to a life sentence, but which is intended to permit earlier release on the grounds that custody is no longer necessary.
Thompson and Venables were tried in November 1993 in an adult criminal court before a judge and 12 jurors, as required by law. After being found guilty by the jury, the judge sentenced the boys to detention during Her Majesty’s pleasure. He recommended that the boys serve a tariff of eight years to satisfy the requirements of retribution and deterrence. The Home Secretary, after considering the judge’s recommendation, public sentiments — including those of the victim’s family — and further submissions by the defendants’ solicitors, imposed a tariff of 15 years.
This tariff was quashed by the House of Lords in 1997 in an application for judicial review brought by the boys’ solicitors. The Lords held that the Home Secretary had adopted an unlawful policy which failed to consider the boys’ progress and development, had misdirected himself by failing to remain detached from public sentiment and had denied the boys procedural fairness. In light of this decision, the Home Secretary invited further submissions from the boys regarding an appropriate tariff although, at the time of writing, no new tariff had been set.
The hearing by the European Court of Human Rights originated with an application to the European Commission of Human Rights on 20 May 1994, some four months after the trial concluded. A dispute may be referred to the European Court of Human Rights for a hearing by either the government or the individual concerned after the Commission has considered the matter. In this case the European Commission made findings that the boys’ human rights had been violated. The government of the United Kingdom then exercised its right to obtain a determination by the Court.
The boys argued numerous breaches of international law before the European Court. First, both boys argued that Article 3 of the European Convention on Human Rights (ECHR), which prohibits inhuman or degrading punishment, was breached due to the cumulative effect of their age, the nature of the trial, the publicity surrounding the trial and by the nature of their sentence. Secondly, they argued that Article 6 of the same Convention, which guarantees a fair trial, was breached by the manner of the trial, and by the fact that a government minister, and not a judge, was responsible for setting the tariff. Thirdly, they maintained that Article 5 of the ECHR, which guarantees freedom from arbitrary or unlawful detention, was breached by the indeterminate nature of their incarceration. In this regard, the boys’ submissions also relied on Article 37(b) of CROC and Rules 16 and 17.1(a) and (b) of the Beijing Rules, which require that sentences imposed on children be as short as possible and that sentencers have regard, as the guiding factor, to the wellbeing of the child.
It is worth summarising, first of all, which of the applicants’ arguments the Court rejected. First, the Court did not accept that the boys had been subject to inhuman or degrading treatment. The Court rejected the argument that attribution of criminal responsibility to a ten-year-old could, in itself, give rise to a violation of Article 3. The Court pointed to the lack of any common standard amongst European states on this issue. While England and Wales are among the few European jurisdictions to fix the threshold at such a young age, the Court did not feel that the age of ten is so young as to represent a major deviation from the practices of other member states. Similarly, the Court did not accept that the nature of the trial in an adult court or the publicity surrounding the trial were sufficient to constitute inhuman or degrading treatment. While the Court accepted that these factors undoubtedly caused significant distress to the two defendants, it did not consider the suffering involved to be so excessive as to give rise to a breach of Article 3 of the ECHR.
The Court also did not accept that an indeterminate sentence in respect of a child is invariably inhuman or degrading treatment. The Court was prepared to find that such sentences may be necessitated by the demands of public protection. Similarly, the Court rejected the argument that the imposition of the same sentence (in this case, detention during Her Majesty’s pleasure) on all people convicted of the same crime should be seen as arbitrary or unlawful detention. In this respect the Court merely observed that Thompson and Venables had been sentenced by a competent court and in accordance with English law.
The Court did, however, find that the right to a fair trial conferred by Article 6 of the ECHR had been breached. Article 6 states that every individual facing criminal charges shall be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Court accepted the argument that implicit in Article 6 is the right of a defendant to participate effectively in the conduct of his or her case. In the case of juveniles, the Court held, a defendant must be dealt with in a manner that takes full account of his or her age, level of maturity and intellectual and emotional capacities. In respect of serious offences, this requires the taking of steps that minimise the defendant’s feelings of intimidation and inhibition. Further, Article 6 states that, while the judgment shall normally be pronounced publicly, the press and the public may be excluded from the trial where other considerations, such as the interests of juveniles or the interests of justice, require it.
While the Court acknowledged that steps had been taken to explain the procedures to the defendants and that hearing times were shortened so as not to overtire them, the Court did not view these steps as adequate to compensate for the deficiencies of the trial process. In particular, the Court held that the defendants would have found the proceedings of the trial largely incomprehensible and overwhelmingly intimidating, such that it could not be concluded that they had actively participated in the process. While the formalities of an adult court are, on the whole, designed to ensure the due process rights of adult defendants are safeguarded, the same features can have the reverse effect when a juvenile is on trial. Expert evidence introduced by the boys’ counsel indicated that neither of them was able to adequately follow the trial, instruct counsel or take decisions on their own behalf. Indeed, Venables said that he had spent the time in court ‘counting in his head or making shapes with his shoes’.The public nature of the trial combined with the enormous publicity surrounding it was seen, by the Court, to compound these factors. The Court emphasised the importance of considering prevailing international standards, including the increasing trend towards protecting the privacy of juvenile defendants.
Importantly, the fact that the boys were represented by skilled and experienced lawyers was not sufficient to remedy the other defects of the trial. The Court held that, given the tense atmosphere of the courtroom, the public scrutiny, their immaturity and their disturbed emotional states, the boys would not have felt sufficiently uninhibited to consult with their lawyers, either in or out of court. Consequently, the boys were denied effective participation in their own trial.
The Court also found that Article 6 had been breached by the Home Secretary’s role in fixing the tariff. The Court reasoned that tariff fixing is a sentencing exercise and that it is therefore subject to the Article 6 requirement that the sentence be set by a body independent of the executive. For similar reasons, the Court found that Article 5 was also breached, as the Article requires that the lawfulness of a person’s detention be speedily determined by a court.
The Court awarded the applicants’ costs, but because damages were not claimed, no other monetary orders were made. The Court’s judgment primarily stands as an indictment of the British juvenile justice system, although it has raised speculation that the decision may bring forward the boys’ release date. Certainly, the British government will be pressured to review the role of the Home Secretary in the sentencing process, as the Court’s condemnation of this practice was unanimous.
The Court’s decision was greeted with outrage by a number of conservative political figures in the United Kingdom. Howard, the Home Secretary at the time of the boys’ trial, stated during debate in the House of Commons: ‘If anyone had told those who had signed the European Convention on Human Rights, in the immediate aftermath of the horrors of the Second World War, that it would be applied to a case like this, they would have reacted in utter disbelief’. In other words, the former Home Secretary sees the Court’s decision as exceeding its brief, a view that may seem reasonable when one considers the more overt human rights abuses that the Court regularly considers. Nevertheless, an abuse of human rights is not made acceptable because other countries are guilty of more serious incursions. It is inappropriate for Western democratic countries to point to their strong human rights record as a means of deflecting all criticism by international bodies of their social and political practices. Further, ensuring that children are treated properly by a nation’s criminal justice system is of crucial importance. The right to a fair trial when facing criminal charges is a basic and incontrovertible entitlement that all nations should observe. If each nation had an unfettered right to determine the content of ‘fairness’, then this important guarantee might well be rendered meaningless. When the defendant is a child, the need to define the limits of fairness becomes even more pressing.
The Court’s finding that a fair trial requires effective participation must be applauded. A defendant who is unable to understand proceedings, instruct counsel or give evidence on his or her own behalf cannot be said to receive a fair trial. For example, if the trial was conducted in a foreign language and without interpreters, we would have little trouble accepting that this trial was unfair. Yet such a situation may not be much different from a child being tried in a formal court setting. For some children, particularly of a young age, the proceedings would be literally incomprehensible.
This argument may be objected to on the grounds that formal court proceedings are frequently incomprehensible to adult defendants as well. Can a meaningful distinction be made between juveniles and adults? One response may well be that no distinction can be made, and that contemporary notions of fair procedure require traditional formalities, practices and jargon to be broken down and relaxed for all defendants. After all, is it too much to expect that a defendant be able to follow their own trial? And if the defendant is unable to, one may well wonder whether the jury members fare any better. Alternatively, it may be argued that children are especially vulnerable in that their limited intellectual and emotional resources render them particularly unable to follow proceedings that are formal, long-winded or characterised by jargon. The imperfections of the formal adversarial criminal trial are undoubtedly magnified in the case of juvenile defendants.
The Court was correct to reject the argument that the defects of the trial could not be remedied by the role of the defendant’s counsel. Legal representation is one of the key mechanisms for ensuring a defendant’s participation in his or her trial. The legal representative acts on the client’s instructions, a principle which also applies when children face a criminal trial. The child is regarded as a full party to criminal proceedings and the child’s legal representative has a duty to implement the child’s instructions. This may be contrasted to family law proceedings, for example, where a child’s legal representative is required to advocate in accordance with his or her assessment of the child’s best interests, and does not act on the child’s instructions as such. However, the model which applies to the criminal trial often bears little relationship to reality when children are on trial. While there are undoubtedly times when a juvenile defendant is able to make an informed assessment and provide counsel with the information and instructions necessary to discharge the latter’s role effectively, it would be fanciful to imagine that this occurs routinely. As the Australian Law Reform Commission recently acknowledged, children frequently lack ‘the developmental capacity to provide direction.’ In the case of Thompson and Venables, it is clear that neither boy was capable of instructing counsel or effectively contributing to the trial in any way at all.
It must be remembered that in all cases where a child is subject to a criminal trial, they are formally regarded as fit to stand trial and instruct counsel. The law requires that every defendant in a criminal matter be ‘fit to plead’ in the sense that they are able to understand the trial and instruct counsel. It is clear, however, that the minimal safeguard provided by the doctrine of ‘fitness to plead’ — which has historically functioned to filter out the insane — is inadequate to ensure the fuller participation that contemporary human rights standards require. After all, both Thompson and Venables were regarded as fit to stand trial despite the fact that neither boy was capable of following proceedings or effectively participating in them. While both boys were legally represented, the European Court’s conclusion that the boys were incapable of instructing counsel indicates that the mere fact of legal representation is not adequate to meet the requirement inherent in Article 6 of the ECHR, that a defendant participate effectively in their trial. While legal representation is undoubtedly an important and valuable right for children who come into contact with the legal system, be it civil or criminal, the fact of legal representation will simply not always be an adequate guarantee of effective participation in those proceedings. In this regard, Article 12 of CROC is also relevant. That article states that a child who is capable of forming views should be entitled to freely express those views in all matters affecting them, and shall be provided with an opportunity to be heard in any such proceedings. While legal representation is undoubtedly a crucial component of this entitlement, it should not be assumed that legal representation alone will always provide a sufficient guarantee of this right.
Australia is, of course, not subject to the jurisdiction of the European Court of Human Rights. Nevertheless, the decision is a guide to the standards that are developing at an international level in the area of juvenile justice and human rights.
Australia has signed two international treaties which are potentially breached by the current trial procedures employed by juvenile justice systems in Australia. The ICCPR, Article 14 states, inter alia, that:
In the determination of any criminal charge against him [sic], or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
That Article further indicates that the hearing and judgment should be public, although this requirement may be departed from where other factors, such as the interests of justice or the needs of juveniles, necessitates it. Further, Article 14(4) states that, in the case of juveniles, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
Similar guarantees are also provided by CROC. As mentioned, Article 12 guarantees a child’s right to be heard in legal proceedings affecting them, while Article 40(2)(b)(iii) sets out the basic right to a fair trial by an independent body, and Article 40(3)(b) states that signatory countries should, whenever appropriate and desirable, adopt measures for dealing with children which avoid recourse to judicial proceedings. Finally, Rule 5 of the Beijing Rules states that the juvenile justice system shall emphasise the wellbeing of the juvenile. Australia’s obligations, therefore, are in similar terms to those incurred by the United Kingdom.
It should be stressed that the court did not say that the trial of a child in an adult court will always and inevitably involve a breach of that child’s right to a fair trial. Nevertheless, it is clear that the features of such a trial will often be inadequately tailored to the needs of a child defendant.
In Australia, all States and Territories try children accused of the most serious crimes, such as murder and manslaughter, in an adult court. Less serious charges are usually heard in special children’s courts. In Victoria, the Children’s Court can deal with all offences committed by 10 to 17 year olds except for murder (which must be heard in the Supreme Court) and attempted murder, manslaughter, arson causing death or culpable driving causing death (which can be dealt with by the County Court).
There are several reasons why more serious crimes are tried in an adult court rather than the Children’s Court. First, the adult court setting provides a range of due process rights and entitlements that are not necessarily found in the more informal courts of summary justice. Secondly, hearings in the Children Court’s are conducted by a judge/magistrate sitting alone and a jury trial may be seen as more appropriate for serious offences. Thirdly, the greater public access to trials in such courts serves the public need to see justice being done in crimes of a more serious nature. Finally, Children’s Courts are only able to impose relatively short terms of imprisonment — if they were to deal with more serious offences, their sentencing powers would have to be vastly increased.
Unfortunately, trials which take place in an adult court are characterised by a level of formality and technicality that arguably render them unsuitable for juvenile defendants. The intellectual and emotional maturity of children will rarely be adequate to comprehend and participate in a trial in a higher court. While the European Court emphasised the enormous publicity that surrounded the trial and the post- traumatic stress that the defendants in that case suffered from, these factors are arguably not critical to the Court’s overall assessment of the trial. The post-traumatic stress and publicity were emphasised due to the role they played in diminishing the defendants’ ability to participate in the trial. The Court may have reached the same conclusion, even if the trial had, for example, received less publicity. Consequently, while courts should attempt to shield juveniles on trial from the full blaze of public scrutiny, this may well be insufficient to ensure that the trial complies with international law. The key is that the child is able to adequately comprehend proceedings and participate in those proceedings. If the child is unable to instruct counsel effectively, then the fact of legal representation will not remedy proceedings which are incomprehensible to a child.
It is clear, then, that Australia must give careful consideration to the trial procedures that are adopted in the case of children. Like the United Kingdom, superior Australian courts make little concession to the specific requirements of juvenile defendants. While this will not always result in a violation of that child’s human rights, in many cases it will, particularly where the child is very young. Indeed, it may be appropriate to reconsider the question of whether it is ever appropriate to try children in adult courts. It is arguable that the requirements of juveniles will rarely be met in a formal court setting in which the adversarial model is strictly practised. Certainly, this important issue requires careful consideration in light of the outcome in Thompson and Venables.
As already indicated, the European Court held that the boys’ right to have their sentence determined by an independent body was violated by the Home Secretary’s power to determine the tariff segment of the sentence. While no Australian State has provisions which mirror those in the United Kingdom, the now notorious mandatory sentencing laws in the Northern Territory and Western Australia do remove judicial discretion to determine the sentence in certain cases. Numerous commentators have argued that these statutory regimes do, in all likelihood, breach certain international obligations. The decision of the European Court of Human Rights in Thompson and Venables lends weight to this contention. The court held that Article 6 of the ECHR, which guarantees that criminal charges should be determined by an independent tribunal, incorporates the whole of the proceedings in issue, including the imposition of a sentence. Accordingly, any sentencing decision attracts the requirement that it be made by a Tribunal independent of the executive. Article 14(1) of the ICCPR, to which Australia is subject, is in virtually identical terms. While in the case of mandatory sentencing it is parliament, rather than the executive as such, which imposes the relevant sentence, it would be hard to argue that parliament can properly be described as a ‘tribunal independent of the executive’. Accordingly, the mandatory sentencing regimes in Australia would appear to fall foul of this particular guarantee.
The consequences of the European Court’s decision in Thompson and Venables are potentially enormous. Any nation which subjects juveniles to court proceedings which are not adapted to the child’s intellectual and emotional needs runs the risk of violating that child’s human rights. Whether or not the trial of a child in an adult court has this outcome will undoubtedly depend on the actual procedures adopted and the maturity and resources of the individual child. It is clear, however, that our international obligations require us to look closely at how we try children charged with serious offences. It may be that, ultimately, the adult court with its formalistic and ritualistic practices is not an appropriate setting for younger defendants. Certainly, this recent decision of the European Court of Human Rights indicates that a re-examination of this important issue is timely.
[*] Gail Hubble teaches law at Monash University.
 T v The United Kingdom and V v The United Kingdom, 16 December 1999, available at <http://www.dhcour.coe.fr> . The Court’s judgment in both cases is virtually identical, so few distinctions will be drawn between them. The cases were heard by the Grand Chamber of the Court, comprising 17 judges. A joint judgment is written in each case, although eight judges presented partially dissenting views, and Lord Reid (UK) produced his own (concurring) judgment.
 Several international treaties are appended to the Commonwealth Human Rights and Equal Opportunity Commission Act 1986, including the International Covenant on Civil and Political Rights (Schedule 2) and the Declaration of the Rights of the Child (Schedule 3). However this inclusion would appear to fall short of direct incorporation and the appended treaties are not, therefore, a direct source of substantive rights in Australia.
 For example, see ‘Don’t Tell Us What To Do, PM Warns’, Weekend Australian, 19-20 February 2000, p.9.
 See R v Secretary of State for the Home Department; ex parte Venables and Thompson  1 All ER 327 at 344 per Lord Woolf MR.
 Ibid at 341 per Lord Woolf MR.
 R v Secretary of State for the Home Department; ex parte Venables and Thompson  1 All ER 327.
 The government submitted to the European Court that this delay was mostly caused by Thompson’s failure to make appropriate representations.
 This discussion will focus on the main breaches alleged.
 The age of criminal responsibility ranges from 7 in some European states (Cyprus, Ireland, Liechtenstein and Switzerland) to 18 in a number of others (such as Spain). In Australia, the minimum age of criminal responsibility is 10, except in the ACT where it is only 8.
 V v The United Kingdom para 89.
 See ‘James Bulgers Killers “Had Unfair Trial”’, Telegraph (UK), 17 December 1999.
 See ‘Howard Dealt Lethal Blow to Political Role’, Guardian (UK), 17 December 1999.
 Reported in Telegraph (UK), 17 December 1999.
 In the context of substantive criminal responsibility, the developmental limitations of children are recognised through the doctrine of doli incapax, the common law presumption that children between the ages of 10 and 14 are incapable of wrongdoing. The prosecution bears the onus of rebutting this presumption in order to establish that the child is criminally responsible. The doctrine has generated some controversy, and was abolished by statute in the United Kingdom in 1998. In the case of Thompson and Venables the prosecution led evidence, including expert testimony from several psychologists, which indicated that the boys would have understood that their actions were wrong. This evidence was presumably accepted by the jury.
 Australian Law Reform Commission (ALRC), Report No 84, Seen and Heard: Priority for Children in the Legal Process, 1998, para 13.22.
 ALRC, above, para 13.4.
 See Ebatarinja v Deland  HCA 62; (1998) 157 ALR 385 for the common law requirements and Crimes (Mental Impairment and Fitness to Plead) Act 1997 (Vic) for the statutory test in Victoria.
 Children and Young Person’s Act 1989, s.16(1)(b).
 Mandatory sentencing arguably breaches other international obligations as well, including Article 37(b) of CROC, which requires that imprisonment be used as a last resort in the case of children.