Children who kill

Juvenile delinquency, including violence, is increasing, but homicide committed by children remains rare.¹ While the acts and features of children who kill are heterogeneous, all these children are seriously disturbed, with high rates of neuropsychological abnormalities, poor impulse control, school failure, and truancy. All have experienced severe family adversities: domestic violence, neglect, child abuse, substance misuse, maternal depression, and absence of fathers.^2–4 Because homicide by children is so rare, population approaches to prevention are not realistic.⁵ But the evidence, though limited, is that with good care and psychiatric treatment the children do well and do not reoffend in later life.² This fact should govern the way that they are treated by the criminal justice system.

In Britain recent interest in child homicide followed the killing of 2 year old James Bulger by two boys aged 10. This case, which occurred in 1993, aroused what amounted to a national panic, resulting not only in excessive sentences for the children concerned but in more coercive juvenile justice legislation.⁶,⁷ The then home secretary was persuaded by public and media pressures to increase the custodial sentences initially imposed by the trial judge, so that it seemed the boys would enter adult prison at 18 with the risk of undoing whatever benefits had occurred during their detention in local authority secure accommodation with expert psychiatric treatment.

The case also had two helpful consequences. Firstly, the organisation Justice produced a report, Children and homicide: appropriate procedures for juveniles in murder and homicide cases, in 1996,¹ which received insufficient attention at the time. This argued that children should be treated differently from adults because they are developing and have a greater chance of improving their adjustment. Indeed, the limited evidence supports this. A study by Strehlow et al in the 1980s followed up 15 out of 45 adolescents who had attempted or committed murder.⁸ In the 10 no longer in custody social adjustment after an average of 7.5 years after the offence was good.

Secondly, the two boys appealed to the European Commission of Human Rights, which resulted in judgments from the European Court of Human Rights in 1999.⁹,¹⁰ As a direct consequence of these judgments, the Lord Chief Justice issued new guidelines for conducting trials of juveniles in adult courts to avoid “intimidation, humiliation, or distress”; he reduced the boys' period of detention so that they will not now go to prison; and he has sought to safeguard their future privacy from an intrusive press.

The judgments of the European Court of Human Rights are forceful documents giving detailed accounts of the clinical states of the two boys, the court procedures, and the surrounding social climate. The court held that there had been no infringement of the right not to be subjected to inhuman or degrading treatment but that there had not been a fair trial. The circumstances of an adult court amid a blaze of publicity, with hostile crowds attending the boys' arrival at court each day, had a seriously inhibiting and intimidating effect, compromising their ability to understand and participate effectively in their trial. There was a second breach of the Convention on Human Rights in that the home secretary, not being independent of the executive, could not determine the length of detention without being subject to political pressures. Sentencing is a matter for judges, not politicians. Furthermore, there was a third breach in that the boys had had no opportunity to have the continued lawfulness of their detention determined by a judicial body.

But the recommendations of the European Court of Human Rights go further and are congruent with those of the report from Justice.¹ Firstly, the court recommended that the age of criminal responsibility, at present 10 years in England and Wales and among the lowest in Europe, should be reconsidered. Justice suggests it should be 12 or 14. We have argued that to limit the concept of culpability to intellectual understanding of “right and wrong” makes no sense.² Adults under extreme emotional arousal can act in ways they know to be wrong and later regret. Children are even less able to control their impulses.

Secondly, the court states that court procedures must be comprehensible to the young person and not intimidating. The Lord Chief Justice's new guidelines go some way towards realising this. Justice goes further and recommends that children under 14 should not have a public trial in an adult court.¹

Finally, a prolonged sentence, irrespective of the offender's progress, operates against the aim and process of treating child offenders. This is especially so if a long sentence means that children will be transferred to an adult prison before being discharged from their sentence (as in most cases in the United Kingdom).

The objectives of sentencing should be the rehabilitation, education, and social integration of the offender and the protection of society—the first, of course, promoting the second. Deterrence and punishment are not rational options, and politicians who seek to inflame public feeling in these distressing cases are being forced to recognise this.