CONCURRING OPINION OF MR N. BRATZA

I have voted with the majority of the Commission in relation to each of the Convention issues raised by the application and only wish to add certain supplementary remarks on two of the issues, namely those raised under Articles 3 and 6 concerning the trial of the applicants.

As to the complaint of a violation of Article 3 of the Convention, I am unable to accept the argument that the attribution of criminal responsibility to the applicant as a ten year old child or that the trial process to which the applicant was subjected amounted to inhuman or degrading treatment within the meaning of Article 3 of the Convention.

It is true that in its Report of January 1995, the U.N. Committee on the Rights of the Child expressed concern as to the low age of criminal responsibility in the United Kingdom and recommended that serious consideration be given to raising the age.  It is also true that the Beijing Rules on the Administration of Juvenile Justice provide that the age of criminal responsibility should not be set too low.  However, as the Commission point out, it is apparent that, although the age of criminal responsibility is low by comparison with that in the majority of other Member States, the United Kingdom is not unique in maintaining an age as low as ten, a lower age being apparently adopted in four Member States.  Moreover, even in those States with a higher age of criminal responsibility, the gravity of what the applicant did would almost certainly have involved the taking of some measures (including punitive measures) in respect of the child concerned, even if not those of a criminal nature.

While sharing the doubts of the majority of the Commission as to the threshold set in the United Kingdom, the mere attribution of criminal responsibility to a person as young as the applicant did not in my view amount to inhuman or degrading treatment for the purposes of Article 3 of the Convention.

The question remains whether the subjection of the applicant to a full criminal trial, in public and in an adult court, once he had been found to be criminally responsible for his actions, amounted to treatment of such severity as to fall within the scope of Article 3.

It is clear that, in general, the subjection of a person to criminal proceedings in a high profile case, with the formality of a public trial and with the attendant publicity, would not without more amount to inhuman or degrading treatment even if it gave rise to feelings of fear, intimidation and humiliation on the part of the defendant concerned.  The central question is, thus, whether the fact of the age of the present applicant alters the position and had the result that the mental suffering and humiliation experienced by the applicant attained the requisite level of severity.

As is pointed out in the Commission's Report, the age of an applicant is one of the factors to which special regard is to be had in determining whether a particular treatment or punishment attains the minimum level of severity.  In this regard there can, in my view, be little doubt that, for an 11 year old child, a public trial, in an adult court and with the intense media interest that attended the applicant's trial, would be a more frightening, intimidating and distressing experience than for an adult.  Moreover, as is pointed out in the Report, there was some evidence before the Commission (stronger in the case of V. than in the case of T.) that the proceedings were not only distressing but had some psychological effect on the two defendants.

On the other hand, I consider it to be of cardinal importance that nothing in the trial procedures adopted in the case of either defendant was intended or designed to cause them mental suffering or humiliation.  On the contrary, as the Government have emphasised , a number of special measures were taken in deference to the applicant's young age to reduce the distress caused to him.  While the applicant argues that these measures did not go far enough and that the interests of justice did not in any event demand subjecting the applicant to a full-scale, public trial, I am unable to accept that the application of the ordinary criminal trial procedures could amount to inhuman or degrading treatment of an applicant, even where, as here, the applicant was as young as eleven.

In my view, the application of such trial procedures is better examined in the context of the requirements of fair trial under Article 6 of the Convention.

It is an essential element of "fairness" in Article 6 that the trial process provides for the effective participation of the defendant in that process, which requires in principle that a defendant should be present during the proceedings and should be able to hear and follow them, and to give instructions where necessary to his or her lawyer.  This cannot mean that a defendant must necessarily be able to understand the intricacies of law or procedure, his interests in this regard being adequately protected by having a competent legal adviser to represent him.  But it does mean, in my view, that a defendant should have some ability to comprehend what is going on and to contribute effectively to his own defence .  More particularly, in the case of a child defendant it is I consider an essential requirement of a fair trial that the mode of trial and the trial procedures should be adapted to take into account the age, level of maturity and intellectual and emotional capacity of the child concerned.

The Government lay emphasis on the fact that both defendants in the present case were found fit to plead, in the sense of having sufficient intellectual understanding that the acts of which they were accused were seriously wrong.  It is further pointed out that both defendants were legally represented throughout the proceedings, that they had the continuous assistance of social workers and that steps were taken to modify the normal procedures (by, for instance, the grant of frequent adjournments and a reduction in the length of the court sittings) so as to facilitate the defendants' understanding and participation in the trial proceedings.

I see considerable force in this argument.  In particular, I readily accept that, within the constraints set by the requirements of a public criminal trial, all possible steps were taken by the trial judge to make allowances for the young age of the two defendants.

However, I have grave doubts whether, whatever special procedures are devised, the mere fact of subjecting a child to a public trial in an adult court is consistent with the effective participation of the child in the trial process, and consequently with the requirement of fairness in Article 6.

I recognise the importance of the principle that justice should be administered in public.  I recognise too, that not only is this principle enshrined in Article 6 itself but that the proviso to paragraph 1 of that Article merely permits, and does not require, the exclusion of the public in the interests of juveniles.  Moreover, there is I consider strength in the submission of the Government that in a case of the utmost gravity and public concern, to have held a trial in secret, without a jury and without an obligation on the prosecution to prove the charges beyond reasonable doubt, would have undermined the public interest in fair and open justice.

Despite the force of these points, it seems to me that the public interest in a fair trial does not necessarily require that the trial be in public or that it be subject to the formal procedures applied in  a Crown Court.  Indeed, it is only in a case of murder or manslaughter or other offence punishable if committed by an adult with fourteen or more years' imprisonment, that a child or young person would under domestic law be triable in a Crown Court, all other offences being dealt with  summarily in youth courts.  So far as concerns the public interest in open justice, it seems to me that this must in a proper case give way to the competing public interest that the well-being of the young defendant - even one who is accused of committing an offence of the utmost gravity - should be the guiding factor in the consideration of his or her case.  This principle appears to be supported not only by Article 40 of the U.N. Convention on the Rights of the Child but by Article 14 (4) of the U.N. Covenant on Civil and Political Rights which provides that in the case of juvenile persons "the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation".  It is supported, too, by the Beijing Rules, which urge the importance of respecting the "privacy" of the child at all stages and which provide that in principle no information leading to the identification of a juvenile offender should be published.

I consider that, in proceedings against a child, even for such a grave offence as murder, "fairness" in Article 6 requires the taking of special measures to facilitate the effective participation of the child in the process.  In my view, it is not consistent with this requirement that a child is subjected to the full rigours of an adult, public trial.

(Or. French)