Page last updated at 12:16 GMT, Friday, 22 January 2010

How Edlington case follows course paved by Bulger trial

By Martha Buckley
BBC News

Court drawing of the brothers
The boys pleaded guilty to causing grievous bodily harm

Two brothers are among Britain's youngest convicted criminals to be placed in custody after being detained for a horrific attack on another two boys in Edlington, South Yorkshire, carried out when they were aged just 10 and 11.

The case echoes that of the young killers of toddler James Bulger in 1993. Were it not for a legal change largely prompted by the Bulger case, the brothers might not have been brought before an adult court at all.

In 1993, 10-year-olds Jon Venables and Robert Thompson abducted James Bulger from a Liverpool shopping centre, battered him to death and left his body on a railway line.

Jon Venables and Robert Thompson
Jon Venables and Robert Thompson were tried as adults

The case shocked the nation, prompted fears about the state of a society which had allowed such a thing to happen and was seized on by then opposition leader Tony Blair as a symbol of a nation in moral decay.

At that time, children aged between 10 and 14 could be tried for criminal behaviour in the UK only if the prosecution could prove the offender had known what he or she was doing was seriously wrong, not just naughty or mischievous.

In the Bulger case, prosecutors successfully did this, allowing Venables and Thompson to be tried as adults.

Five years later, the Crime and Disorder Act 1998 abolished the presumption that children under 14 did not know the difference between right and wrong, leaving England and Wales with a de facto age of criminal responsibility of 10 - one of the lowest in the western world.

James Bulger
James Bulger was two when he was battered to death

More than a decade later, this meant the Edlington brothers could be taken before an adult court in England, despite their young age.

But whether such young children, however abhorrent their deeds, are capable of understanding the seriousness of their actions and whether prosecution is the best way to address their behaviour remains a matter of controversy.

Computer games

Laurence Lee, the solicitor who represented Venables at the Bulger trial, is among those in favour of the younger age of criminal responsibility.

He believes children are growing up more quickly than ever in today's world of computer games and media exposure and says it "cannot be argued" that children of 12 or even 10 do not know the difference between right and wrong.

7 - Switzerland, Nigeria, S Africa
8 - Scotland, Sri Lanka
10 - England, Wales, Northern Ireland, Australia, New Zealand
12 - The Netherlands, Canada, Greece, Turkey
13 - France
14 - Italy, Germany, Bulgaria, Romania, China
15 - Denmark, Sweden, Norway, Finland, Czech Republic, New York (USA), South Carolina (USA)
16 - Spain, Japan, Texas (USA), Poland
18 - Belgium, Luxembourg, most US states

He views the current age of criminal responsibility as an important "safety net", giving a clear message to children that they cannot commit crimes with impunity.

But each case must be treated on merit and not every child offender need end up in court.

Once in custody, the focus for young offenders should be on education and rehabilitation - an approach which he says has worked well for Thompson and Venables.

"It can't just be about punishment," he says. "The underlying cause of their behaviour has to be addressed so they are not just hung out to dry."

In fact the way serious young offenders in England and Wales are treated is often at odds with how they would be treated elsewhere.

Had the brothers been in most other parts of western Europe (apart from Northern Ireland, where the age of criminal responsibility is 10 and Scotland, where it is soon to be raised to 12 from eight) they would have been too young to be considered criminally responsible at all.

Their cases could have resulted in social service action, special educational measures or juvenile proceedings - but they would never have faced a trial in a criminal court.

If the perpetrators had been 18 or 19 and the victims the same age, it wouldn't have got as much attention
Richard Garside
Centre for Crime and Justice Studies, King's College

Richard Garside, director of the Centre for Crime and Justice Studies at King's College London, argues that if people are not considered able to decide about voting, marrying, leaving education, having sex or even getting a tattoo until they are 16 or 18, it does not make sense to hold 10 and 11-year-olds criminally responsible.

"The age of criminal responsibility is a real outlier, out of keeping with ideas of child development," Mr Garside says.

Rather than punishing children who may already be deeply disturbed, he believes a better solution would involve giving them a safe and secure environment, helping them understand what they have done and finding "a way forward for their lives that does not involve them doing that sort of thing again".

In reality, he says, the criminal justice system tends to "get in the way".

Media attention

Mr Garside thinks the 1998 legislative change may have had more to do with politics than justice.

He warns that the tendency of politicians and the media to 'hijack' such tragedies can make things worse.

Deploring the sort of negative public and media attention of the type rained upon the Edlington and Bulger cases, he says: "If the perpetrators had been 18 or 19 and the victims the same age, it wouldn't have got as much attention."

While the Edlington brothers' behaviour was "very disturbing" and obviously far from normal, he says it is down to adults to put aside their anger and examine instead with "seriousness and compassion" how such children can be helped.

There have been numerous calls from experts, campaign groups and the United Nations to raise the age of criminal responsibility to 14 or even 18.

Dr Eileen Vizard, a child psychiatrist with the NSPCC's child offender service, says scientific evidence about child development indicates 10-year-olds are not capable of participating fully or fairly in a criminal trial.

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