Child Homicide and the Law: Implications of the Judgements of the European Court of Human Rights in the Case of the Children Who Killed James Bulger

Abstract

The facts of the Bulger case and its legal consequences, in particular the judgements of the European Court of Human Rights (ECHR), are summarised. A review of the literature on child homicide indicates that this continues to be rare, can neither be predicted nor prevented, and suggests that the future outlook for such offenders may be good. The recommendations of a committee set up by Justice (1996) for changes in legislation and procedures concerning children who have killed, are congruent with the European Court's judgements, but still woefully at odds with public attitudes.

Criminal capacity in children accused of murder: challenges in the forensic mental health assessment

“…Both of these killings occurred in the United Kingdom, and in both cases the prosecutions successfully rebutted the doli incapax presumption. Psychiatrists examining all three accused were of the opinion that they were of average intelligence and that they knew that what they were doing at the time of the offence was wrong (Wolff and McCall Smith 2000). Unlike the situation in many other countries, these two cases were tried in adult courts.…”

“…A child between 10 and 14 years was traditionally also presumed incapable of criminal intent, but the prosecution could lead evidence to rebut this presumption. However the Crime and Disorders Act of 1998 abolished the rebuttable doli incapax rule for 10 to 14-year-olds, with the result that all 10-year-olds in England and Wales, unless mentally impaired, are now regarded by the law as fully responsible for their actions and therefore not protected from prosecution (Wolff et al 2000).…”

“…• "A child who commits an offence while under the age of 14 years is presumed not to have had the capacity to appreciate the difference between right and wrong and to act in accordance with that appreciation, unless the criminal capacity of the child is proved in accordance with section 56." This means that, under the new legislation, there would be a rebuttable presumption of doli incapax in the case of child accused between 10 and 14 years, bringing the South African law on criminal capacity in line with the old English law that was abolished in 1998 (Wolff et al 2000). This could be a source of much debate, especially considering the rate of children's development appears to have increased notably over the years.…”

“…However, there was an interesting international development in the European Court of Human Rights in the context of an appeal by the two youths who killed toddler James Bulger in the UK (Wolff et al 2000). The court ruled that: • there was no accepted minimum age of criminal responsibility; • the age of 10, as used in the UK, was 'on the low side'; • to hold a child of 10 years criminally liable did not amount to inhumane or degrading treatment.…”

Children who kill

“…While the acts and features of children who kill are heterogeneous, all these children are seriously disturbed, with high rates of neuropsychological abnormalities, poor impulse control, school failure, and truancy. All have experienced severe family adversities: domestic violence, neglect, child abuse, substance misuse, maternal depression, and absence of fathers 2 – 4. Because homicide by children is so rare, population approaches to prevention are not realistic 5.…”