The British legal system does not serve children's interests

Submitted by Matthew on 27 May, 2010 - 12:39 Author: Jean Lane

On Monday 24 May, a jury at the Old Bailey found two boys aged 10 and 11 years guilty of the attempted rape of an eight year old girl.

According to the prosecution lawyer the boys had assaulted her in a block of flats, in the lift and in the bin shed before taking her to a field and raping her. The boys’ defence called it in all likelihood a “game of I’ll show you mine if you show me yours” that may have gone too far. Much of the media coverage has backed up this latter view, criticising the use of the criminal justice system on children.

We should abhor the use of an adult legal system to prosecute children, but we should not do so with such a cavalier attitude to the victim. The media have no way of knowing if this was just a game of “doctors and nurses”.

The defence argument, which was taken up by the media to support their view, was that the girl changed her story under video-linked cross-examination. She said she had lied to her mother about what had happened because she had “been naughty” and was afraid she wouldn’t get any sweets.

Despite this the judge continued with the proceedings on the grounds that witness statements and medical evidence were consistent with the account the little girl gave to the police.

It is easy to imagine many reasons why a girl of eight might change her story: confusion, tiredness, anticipating adults’ reactions, wanting to please, feeling guilty; none of which inform us as to the reality of the situation for her.

It might also be possible to imagine a child found by an angry and misunderstanding parent engaged in an innocent game of discovery saying, “he made me do it” — just as a child in school might tell the teacher that another kid broke the toy.

The problem with both these scenarios is that they are driven by adults; the response elicited by adults and the outcome controlled by them, over which the child has no influence or control and little understanding. Drop either of these two scenarios, then, into a confrontational and adversarial setting to see why this case should never have gone to the CPS and the Old Bailey. It gets us no nearer the truth and does not ensure justice for the child.

Much of the controversy following the court case has based criticism of the use of the adult legal system on the probability that the attack on the girl was not as bad as all that. But even if the worse possible scenario were the case; that this was a predatory sexual assault on a completely unwilling and helpless victim i.e. it was as bad as it could be, this would still not be the place to deal with it.

The Chief Crown Prosecutor, Alison Saunders, stated that, “The CPS had a duty to prosecute where there is sufficient evidence to do so and a prosecution is in the public interest”. She added, “The allegations made by the young girl were very serious” and “she has the same right to the protection of the law as an adult”.

If Ms. Saunders were talking about adult rape victims this would be quite a refreshing statement possibly eliciting more trust in the system than currently exists. But the little girl deserves not the same right to protection as an adult. She deserves much, much more, precisely because she is a child.

Does her “day in court” resolve the situation in which she finds herself? She has to live with the aftermath for the rest of her life. She would be much better served by good, prolonged, social intervention rather than the “satisfaction” of a prosecution; the satisfaction being geared toward, not her needs, but those of the angry adults around her .

Surely what she needs to know is: you are safe; this is not your fault; we will make sure it does not happen again; we will support you; this is what is going to happen now. A comforting, listening, kind and supportive approach which, even if there were the best will in the world, which there isn’t, especially when it comes to children, the CPS could not provide because it is a cross-examining, adversarial system built for adults — and the most robust adults as well.

And what of the boys? Suppose the worst scenario again. Suppose this was a copy cat for Edlington (the case of the torture and sexual assault of two boys by two others all of primary school age) or Thompson and Venables, the 10 year olds who tortured and murdered Jamie Bulger. Is the Old Bailey the place to ensure that they don’t do it again, that they understand exactly what they have done and why it is wrong? Is a 10 year old put on the Sex Offenders Register for the benefit of children, or for the benefit of the feelings of the angry adults? Is this “in the public interest”?

Britain is one of the very few countries in the world that thinks so. In Europe only Scotland and Switzerland have a lower age of criminal responsibility than England — 8 and 7 respectively. In England and Wales it is 10. In Scandinavia it is 15 and Belgium and Luxemburg 18. At the time that English society was pouring its collective venom on the “evil” Thompson and Venables, the perpetrator of a similar case in Sweden was being taken through a system of care and psychological support involving all the social, welfare and education agencies.

What was the difference between the two responses? It was not that one punished wrongdoing while the other let the offender off; but that the purpose of one response was to put the blame for the failings of society and its ability to raise children in a decent way firmly on the shoulders of the individual child. And the other was to put it on society itself.