DISSENTING OPINION OF MR. L. LOUCAIDES

I am unable to agree with the finding of the majority that there has been a breach of Art. 6 of the Convention in respect of the trial of the applicant.

The gist of the reasoning of the majority is that, having regard to the age of the applicant, the application of the full rigours of an adult public trial, including in particular the attendant publicity, deprived him of the opportunity to participate effectively in the determination of the criminal charges against him and that this was incompatible with the requirements of a fair trial.

A criminal trial, whether in camera or not, may inevitably be expected to cause feelings of anxiety and oppression to an accused person facing a serious charge whether an adult or a child.  Certain publicity is also unavoidable with regard to serious criminal offences such as the one with which applicant was charged.  This publicity accompanies the accused in his public appearances well before and during his trial even if the trial itself is carried on in camera.  Moreover a trial in camera in a juvenile court is not free of the substantial degree of pressure that a young person may be expected to feel in a setting of any kind of judicial proceedings especially when he is accused of a serious crime.  The involvement of judges, lawyers and witnesses in the case of the accused child makes the child feel out of place and in an oppressive and embarrassing environment.  This is inevitable.

In my opinion the demands of a "fair hearing" do not require that an accused person is made to feel at ease or be enabled to comprehend all the events and complexities of his trial.   This is impossible and unrealistic. And it is particularly true in the case of accused children.  If it were otherwise, persons without knowledge of law, with low intelligence, illiterate persons or persons with mental problems could never have a fair hearing and therefore could never be tried.  What is important to secure a fair trial is to provide the accused, be that a child or an adult, with all necessary facilities and opportunities to defend himself effectively.  The applicant was provided with a defence counsel and the assistance of a social worker in Court and he was not deprived of any opportunity to exercise his defence rights.  It is important to stress here the fact that at no time during the trial did the counsel of the applicant complain to the trial court that the procedure followed was in any way detrimental to the rights of the accused.  The court had a wide discretion to regulate the proceedings.

Whether in an adult public trial or in a juvenile court, the position of an accused child, as far as his effective participation in the proceedings is concerned, is not materially different.  In both cases, such participation is practically in the hands of the child's lawyer.

A public trial of the applicant's case was, in my opinion, fully justified bearing in mind the seriousness of the charge as well as the demands of the public interest in having an open trial due to the unique nature of the case.

The majority invoked the fact that the applicant did not give any evidence in his trial.  To my mind, this is not an indication that the applicant was a victim of an unfair hearing.  If that was so, one would have expected his lawyer to place this on record through a relevant statement.  In the light of all the above, I find that the applicant was not a victim of a breach of Art. 6 of the Convention in respect of his trial.

I also disagree with the findings of the majority that there have been violations of Art. 6 para 1 and Art. 5 para 4 of the Convention in respect of the fixing of the applicant's tariff by the Secretary of State and the absence of any review of the detention of the applicant.  The reason for my disagreement is the fact that there is no tariff currently in force.  The applicant remains in detention by virtue of the original judgment of the court by which he was sentenced to detention during Her Majesty's pleasure with recommendation for a tariff of eight years.  Therefore I consider that the applicant can not now be regarded as a victim of the tariff system for which he complains such complaint being in the circumstances of the case premature.

(Or. English)