PARTLY DISSENTING OPINION OF JUDGE BAKA

While I fully share the view of the majority of the Court that there has been no violation of Article 3, I have concluded that the applicant had a fair trial in the instant case for the following reasons.

Article 6 § 1 of the Convention embodies the general rule that justice should be administered in public in a way which affords the accused the full possibility to participate effectively in the conduct of his or her case. This rule is subject to the proviso that “the press and the public may be excluded from all or part of the trial ... where the interests of juveniles ... so require”. Neither the text of Article 6 § 1 nor its interpretation in the case-law, however, goes so far as to require that a child charged with a criminal offence should always be tried either by a juvenile court or by an adult court in private. It follows that the mere fact of subjecting a child to a public trial in an adult court does not in itself amount to a denial of a fair hearing under Article 6 § 1 of the Convention.

The majority of the Court relied heavily on the argument that the applicant's public trial in the Crown Court in the present case was “intimidating for a child of eleven” and that “in the tense courtroom and under public scrutiny” the applicant was unable to participate effectively in the criminal proceedings against him.

I am of the opinion that any (public or in camera) trial of a serious criminal charge almost inevitably causes strong feelings of anxiety, fear and distress as a result of the fact that the accused person has to face – sometimes for the first time – the serious consequences of the acts committed. I also accept that these natural feelings could limit, wholly or partly, the accused person's (adult or child) ability to participate actively in the criminal proceedings against him or her. Even admitting that this is potentially more so in the case of a child, would this subjective feeling and its possible handicapping impact on his or her actions during the trial be enough to ground a finding that the criminal proceedings against him were unfair? I do not think so. To hold otherwise would require examination of the actual effect of these subjective factors on how the child behaved at the trial and on whether the child was able to contribute efficaciously to his or her defence. Moreover, it would also have to be shown that the child was prevented from active participation in the conduct of his or her case not because of the almost automatic and natural psychological consequences of a criminal trial, but more specifically by reason of the public nature of the proceedings. I think that this goes too far.

In the present case the authorities took a series of special measures designed to ensure that the accused boys could participate adequately in the trial. These measures included familiarising them with the courtroom, an explanation of the procedure, a shortened court day with regular break intervals corresponding to the normal school schedule and the presence of social workers prior to and during proceedings. The trial judge also made it clear that he would adjourn whenever the social workers or defence lawyers told him that one of the defendants was showing signs of tiredness or stress.

Under these circumstances, when the ordinary court procedure had been tailored to take into account his young age, it is difficult to say that the applicant did not receive a fair trial under Article 6. If the applicant was unable to participate effectively in the proceedings, it was not because his case was tried publicly by an adult court but rather because his position objectively was not significantly different from that of accused persons who are lacking legal knowledge, suffering mental disease or of low intelligence, such that they can be said to be subjects of the criminal process rather than active participants in it. In this situation, fairness of a criminal trial cannot mean much more than ensuring that the child is defended adequately by highly trained professional counsel and that the necessary facilities for the defence are fully provided – as they were in the present case. In terms of fairness of criminal proceedings, it is rather illusory to expect that a child of this age could give any legally relevant instruction to his or her lawyer in order to facilitate his or her defence.

On the above basis, I found no breach of Article 6 § 1 as regards the fairness of the trial.

[1] 1-2. Note by the Registry. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2] 1. Note by the Registry . Myra Hindley was convicted of murder in 1966 and is still detained.

[3] 1. Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.