Bad children can get better

The court ruling against Michael Howard in the Bulger case is a victory for justice, argues Allan Levy

The High Court ruling yesterday against Michael Howard's decision to set a 15-year minimum term to be served by the boys who killed Jamie Bulger in 1993 was a victory for those advocating that children should not be treated as adults.

The judgment firmly recognises that special considerations apply to the children in the criminal justice system. This is so even if they have been responsible for appalling criminal acts.

In particular the judges ruled that the sentence given to Jon Venables and Robert Thompson, detention during Her Majesty's Pleasure, must not be equated with mandatory life imprisonment given to an adult convicted of murder. The court said that it could not accept that in the case of an offender aged 10 or 11 the Home Secretary was permitted to fix a tariff of 15 years at the outset, as if the offender were an adult.

This approach is entirely consistent with the Government's international obligations to consider the special position of the child under, for instance, the UN Convention on the Rights of the Child and, by analogy with the civil as opposed to criminal sphere, the principles set out in the much heralded Children Act of 1989. Indeed, the court's decision rationalises what has been seen by many commentators as an inherent contradiction in the Government's fundamental approach to children and young people. The duty of the Home Secretary, as laid down by the court, is to keep an open mind in respect of the future detention of children who have received an indeterminate sentence and to keep under review the whole question of the length of the loss of liberty.

The court emphasised that any review is entitled to encompass a punishment and deterrence element, together with the risk to the public and public confidence. The age of the offender was clearly an important factor, as the Home Secretary recognised when making his flawed decision. However, the mental and physical changes that will inevitably occur to any child of 10 or 11 must be central to any decision. The different considerations regarding the child as opposed to the adult can also be seen in the question of the effect of deterrence, which raises different questions in the case of a very young offender from those in the case of an adult.

The point was made that there is nothing new in having regular reviews of detention for children. The court was shown instructions given to prison governors as long ago as 1949. These called for reports 12 months after the sentence was passed and then at yearly intervals. This is, of course, inconsistent with an approach of fixing a long term at the outset of the sentence with a first review only three years before the minimum period of detention ends.

The approach of the court is surely reasonable and understandable and what Parliament clearly intended in its legislation going back to 1908, when it abolished the death penalty for children and emphasised the importance of rehabilitative and preventive aspects. As the recent Justice report on children and homicide noted, there is extensive research evidence to demonstrate that important developmental changes continue through the teenage years. There is more self-awareness and self-reflection; additionally, during adolescence, there is a greater tendency to look back with regret and to look ahead with apprehension. Young people become increasingly able to consider the long-term consequences of their actions and tend to think about such consequences more in terms of their own sense of responsibility and a better awareness of the effects of their actions on other people. All these factors point towards continual assessment and evaluation.

It is likely that the effect of the court's ruling is that the system of setting a tariff will fall into disuse, but the court has left it to the Home Secretary to devise new procedures. But his involvement may become academic if the application to Strasbourg on behalf of Jon Venables and Robert Thompson, due to be heard in September, is successful. The outcome may well bring to an end the Home Secretary's role and leave matters where many think they rightly belong: in the hands of the independent judiciary.

The writer is a QC specialising in child law.