Were James Bulger's killers too young to stand trial?

http://www.guardian.co.uk/society/2013/feb/05/bulger-killers-young-stand-trial

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With the 20th anniversary next week of the kidnap and murder of James Bulger at the hands of two 10-year-olds, Robert Thompson and Jon Venables, the age at which children should face criminal proceedings is in the spotlight once more.

The coalition has ruled out any change to the status quo. But at 10, the minimum age of criminal responsibility (MACR) in England and Wales remains markedly low by international standards, and pressure for an increase has been growing.

In December, the National Association for Youth Justice (NAYJ), which promotes the rights of young people in trouble with the law, launched a campaign to raise the MACR to 16, with a welfare-based approach for those any younger. An open letter in the Guardian, signed by more than 50 individuals and organisations with expertise in youth justice matters, pointed out that 2,000 primary school-age children were arrested in 2011, but that you have to be 13 years old to get a paper round, 16 to consent to sex and 17 to drive.

In courtroom no 10 at the youth court in Stratford, east London, Becky, 16, taps her right foot gently on the floor and listens. She has come to the court with a support worker from the children's home where she lives to hear her punishment for a burglary. But the case can't go ahead because the pre-sentence report isn't done – a result, the court hears, of Becky's failure to turn up for two appointments with the youth offending team (YOT) charged with preparing the document.

The chair of the bench is not impressed, and Becky's late arrival this morning, having overslept, doesn't help. A custodial sentence for the burglary has already been ruled out, but the chair says he is considering "keeping her in" until the report is done.

Becky's solicitor requests that she gets another chance. The counselling she was receiving for anger management has stopped temporarily, and she currently doesn't have an allocated carer. Custody will not help, he suggests. Becky has been in care since 2003 and has been in trouble before, the court hears. She was removed from her parents for neglect.

Wherever the MACR is set, authorities tend to use their discretion with young people close to the age boundary, explains Tim Bateman, a reader in youth justice at the University of Bedfordshire, who is involved with the NAYJ campaign. So with the threshold set at 16, someone like Becky could avoid court.

Criminalising children is counterproductive, say campaigners: it does little to prevent reoffending, makes it harder for them to secure employment in the future and exposes them to more serious offenders increasing the risk of recidivism.

"We're taking our most vulnerable and disadvantaged children and spending huge amounts of money pushing them through this court system, and they come out at the end of it worse than when they started," says Ray Arthur, a reader in law at Teesside University.

The United Nations Committee on the Rights of the Child (UNCRC) has been warning since 1995 that the UK's threshold of 10 – set in 1963 – is incompatible with its obligations under the UN's convention on children's rights.

Max saw his older brother Daniel – already long excluded from mainstream school – go to court for the first time at the age of 11, on a criminal damage charge. It was the first of many appearances. "I see that as corrupting him," Max says. "At that sort of age you don't really know right from wrong. It's not beneficial for young children if they're being put up in front of scary people and made to feel like a criminal ... they get into the routine of that; it becomes a way of life.

"It would have been better if they'd put something into place that had focused his mind, but they've got nothing that helps people stop committing crime. Daniel's got ADHD [attention deficit hyperactivity disorder] but it wasn't diagnosed until he was about 14. He couldn't read or write at 11 and he still can't." Daniel is now 19. Last year he was facing several years in prison if found guilty of the serious violence he was accused of, but the case collapsed. Daniel has found it hard to get a job, partly because of his criminal record.

The UNCRC wants countries to set the age of criminal responsibility at an "absolute minimum" of 12, and aim to keep increasing it. The European average is 14, ranging from 13 in France, 14 in Germany, 15 in Denmark and Sweden, 16 in Portugal and 18 in Luxembourg. Scotland increased the age at which children can be prosecuted from eight to 12 in 2011, and in Northern Ireland, the minister for justice, David Ford, has committed to pressing for an increase, favouring 12 or 14. Yet in England and Wales the system has got tougher. Until 1998, the 14th-century doctrine of <em>doli incapax</em> meant prosecutors had to prove that under-14s knew that their behaviour was seriously wrong, not just naughty. The Labour government declared the principle "contrary to common sense" and abolished it.

"Children may understand the difference between right and wrong from the age of seven," says Arthur, "but the brain doesn't fully develop until you're in your early 20s, particularly the parts that control impulses, foresight and understanding consequences." While a child of 10 can appear in the youth court, an adult defendant with a similar mental age would probably be considered unfit to plead, making a trial impossible.

Evidence suggests children struggle to understand what is happening once they are in the system. At Royal Holloway, University of London, criminologist Alex Newbury conducted in-depth studies of 11- and 12-year-olds who received a referral order – non-custodial sentences in which the offender agrees a "contract" with a three-strong panel that can include writing letters of apology, practical work for the victim or community, and support aimed at preventing reoffending. But Newbury found that the children frequently didn't understand the legal process or possess the attention span needed, and could be overwhelmed by the panel system's demands.

Failing to stick to the contract or turn up to meetings means being summoned back to court and risking a harsher sentence. Yet "breaches" are common, says Melanie Stooks, a London solicitor who specialises in juvenile law, especially among her younger clients. Parents only have to go to the first panel meeting and many children are from dysfunctional families, she points outs. "You're talking about it being the responsibility of a young child to ensure they attend a whole range of appointments and meetings," says Stooks.

She has met teenagers who want to work with children or young people who have been told they can't do related courses at college because the referral order on their file means they won't be able to get a job in the field. "It's incredibly crushing," Stooks says.

The government's position is that an MACR higher than 10 would have allowed the perpetrators of crimes such as the Bulger murder to escape justice. "The government believes young people aged 10 and over are able to differentiate between bad behaviour and serious wrongdoing and, as such, we have no intention of reviewing this," says justice minister Jeremy Wright.

But Pam Hibbert, chair of the NAYJ, says a higher MACR would not have prevented the Bulger's killers from being locked up in a secure children's home for the protection of the public. The difference is that it would have been achieved via the family courts, with greater account taken of their welfare needs, rather than a crown court trial. "We're not saying that children who commit crime should be let off," she says. "They need to be dealt with, but what we know is that, overwhelmingly, these are children with huge welfare needs, and they need to be addressed, in everybody's interests."

At Stratford, a YOT worker says Becky had only a "naive understanding" of what was expected of her. In the end, she avoids being remanded in custody, but gets a stern reminder of how lucky she's been. She will return for sentencing soon.

• Some names have been changed