James Bulger: Bad enough, but not old enough for a criminal court: James Bulger's death would have been better investigated by public inquiry than by a murder trial, says barrister Louis Blom-Cooper

IN MOST countries of western Europe, a trial of two 11-year-old boys, lasting three weeks, could not have happened. Children in those countries are not liable to the criminal law while they are still developing into mature adults. So what benefit did our society derive from the spectacle of the subjection of these two immature delinquents to trial by jury?

The trial process itself is nearly always distorted when it is wheeled into place, with all its majesty, against such young accused. Lawyers who represent clients in the criminal courts commonly find a difficulty in defending those who lack maturity and do not possess the basic understanding of life which adults normally have. A child accused of a serious criminal offence, and, as a consequence held in police custody pending trial, is hopelessly ill-to handle sustained police questioning (however gently probing it may be). Whatever the child may say to police officers, he or she is frequently unable to recall the events and fails to tell legal representatives what their defence (if any) to the charge may be.

I once defended a 13-year-boy charged with the murder of a three-year-old girl. He was so traumatised by the incident and his arrest that he had temporarily blocked out of his mind the events surrounding the circumstances of the child's death. Since we, his legal advisers, could get no instructions from him, we were severely handicapped in defending him. We were unable to advise him about whether to plead guilty or not, and all we could do was to challenge the prosecution witnesses and put the Crown to proof of the crime. The trial was hardly a contest between rival versions of the single event.

I suspect that defence counsel in the Bulger case faced similar difficulties. An adult accused might have calculated the virtue of a guilty plea and the case would have ended in a day, thus avoiding much of the vast attendant publicity. The saturation news coverage must have had an appalling, even devastating, effect on the dead child's parents, the eyewitnesses who did nothing to intervene in the denouement of the homicide, the two boys' parents, and also the jurors.

The heightened tension of the trial was unrelieved by the judge in sentencing. Since the only penalty for murder by a child is 'detention during Her Majesty's Pleasure' - the equivalent of the mandatory life imprisonment for an adult murderer - there was nothing the judge needed to do other than pass sentence and, perhaps, explain its implications. Mr Justice Morland was unable to resist the temptation, to which judges commonly succumb, to deliver a homily. His view that the murder of James Bulger disclosed 'unparalleled evil' was out of place. (How would one describe a similar homicide committed by two men aged 20 - 'a parallel evil'?) So was his allusion to the possible effect on the boys of a particular video nasty - the investigating police officers had taken a contrary view.

Finding out what happened on the fateful day of James Bulger's murder, and the circumstances leading up to it, would have been better achieved by a public inquiry, without the grinding mill of the criminal process - arrest, interrogation, criminal charge, committal for trial and, months later, the trial itself. Since the two killers of James Bulger would be bound in any event to be placed in the care of a local authority - which would mean being kept in secure accommodation until they were adults - there was little purpose in resorting to the criminal process to achieve the same result.

In 1960 the Ingleby Committee on Children and Young Persons recommended the raising of the age of criminal responsibility from eight to 12. When Parliament came to enact the committee's recommendations in the Children and Young Persons Act 1963, it fixed the age at 10. That left this country still out of line with most European laws which fix the age of criminal responsibility at around 13 or 14. The qualification in English law that a child between eight and 14 must be shown to have known the difference between right and wrong does little to remedy the defect of the law, which places the age of criminal responsibility too low. First, it does not displace the criminal trial for dealing with this age group. Second, it fails to deal with the problem of immaturity.

Psychologists' studies suggest that truth has not the same meaning for children. Children of different ages think and reason quite differently from adults about the world around them. Appreciating what is wrong is only a small part of a child's understanding of human conduct in society.

(Photograph omitted)