T v The United Kingdom and V v The United Kingdom, 16 December 1999, available at <http://www.dhcour.coe.fr>. The Court's judgment in both cases is virtually identical, so few distinctions will be drawn between them. The cases were heard by the Grand Chamber of the Court, comprising 17 judges. A joint judgment is written in each case, although eight judges presented partially dissenting views, and Lord Reid (UK) produced his own (concurring) judgment.
2.
Several international treaties are appended to the Commonwealth Human Rights and Equal Opportunity Commission Act 1986, including the International Covenant on Civil and Political Rights (Schedule 2) and the Declaration of the Rights of the Child (Schedule 3). However this inclusion would appear to fall short of direct incorporation and the appended treaties are not, therefore, a direct source of substantive rights in Australia.
3.
For example, see ‘Don't Tell Us What To Do, PM Warns’, Weekend Australian, 19–20 February 2000, p.9.
4.
See R v Secretary of State for the Home Department; ex parte Venables and Thompson [1997] 1 All ER 327 at 344 per Lord Woolf MR.
5.
Ibid at 341 per Lord Woolf MR.
6.
R v Secretary of State for the Home Department; ex parte Venables and Thompson [1997] 1 All ER 327.
7.
The government submitted to the European Court that this delay was mostly caused by Thompson's failure to make appropriate representations.
8.
This discussion will focus on the main breaches alleged.
9.
The age of criminal responsibility ranges from 7 in some European states (Cyprus, Ireland, Liechtenstein and Switzerland) to 18 in a number of others (such as Spain). In Australia, the minimum age of criminal responsibility is 10, except in the ACT where it is only 8.
10.
V v The United Kingdom para 89.
11.
See ‘James Bulgers Killers “Had Unfair Trial”’, Telegraph (UK), 17 December 1999.
12.
See ‘Howard Dealt Lethal Blow to Political Role’, Guardian (UK), 17 December 1999.
13.
Reported in Telegraph (UK), 17 December 1999.
14.
In the context of substantive criminal responsibility, the developmental limitations of children are recognised through the doctrine of doli incapax, the common law presumption that children between the ages of 10 and 14 are incapable of wrongdoing. The prosecution bears the onus of rebutting this presumption in order to establish that the child is criminally responsible. The doctrine has generated some controversy, and was abolished by statute in the United Kingdom in 1998. In the case of Thompson and Venables the prosecution led evidence, including expert testimony from several psychologists, which indicated that the boys would have understood that their actions were wrong. This evidence was presumably accepted by the jury.
15.
Australian Law Reform Commission (ALRC), Report No 84, Seen and Heard: Priority for Children in the Legal Process, 1998, para 13.22.
16.
ALRC, above, para 13.4.
17.
See Ebatarinja v Deland (1998) 157 ALR 385 for the common law requirements and Crimes (Mental Impairment and Fitness to Plead) Act 1997 (Vic) for the statutory test in Victoria.
18.
Children and Young Person's Act 1989, s.16(1)(b).
19.
Mandatory sentencing arguably breaches other international obligations as well, including Article 37(b) of CROC, which requires that imprisonment be used as a last resort in the case of children.
