T and V v. United Kingdom

ECtHR (United Kingdom)

Title: 
T and V v. United Kingdom

Court:
European Court of Human Rights

Date:
16 December 1999

CRC Provisions:
Article 3: Best interests of the child
Article 37: Torture and deprivation of liberty
Article 40: Administration of juvenile justice

Other International Provisions:
European Convention on Human Rights (Article 3: Torture, inhuman or degrading treatment or punishment; Article 5: Detention; Article 6: Fair trial; Article 14: Non-discrimination)
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) (Rule 4: Age of criminal responsibility; Rule 8: Protection of privacy; Rule 17: Adjudication and disposition)
International Covenant on Civil and Political Rights 1966 (Article 14)

Domestic Provisions:
Children and Young Persons Act of 1933 (Section 39 public/private trials, Section 50 age of criminal responsibility, Section 53 sentencing (“detention during Her Majesty’s pleasure”)
Criminal Procedure (Insanity) Act of 1964 (Sections 4 and 5, fitness to plead and ability to comprehend criminal proceedings)
Criminal Act of 1991 (setting of length of imprisonment by Home Secretary)
Magistrates’ Court Act 1980 (Section 24)
Crime Sentences Act 1997 (Section 28)

Case Summary:
Background:
See CRIN’s case summary of R v. Secretary of State for the Home Department, ex parte V and T.

T and V (“applicants”) made applications to the European Commission, alleging violations of the European Convention on Human Rights by the UK. Specifically, they alleged that:

• in view of their young age, their trial in public in an adult court and the punitive nature of their sentence constituted violations of their right not to be subjected to inhuman or degrading treatment or punishment;

• they had suffered discrimination in that a child aged under 10 years at the time of the alleged offence would not have been held criminally responsible;

• a government minister, rather than a judge, was responsible for setting the tariff;

• their sentences of detention at Her Majesty’s pleasure (“DHMP”) breached their right to liberty; and

• they had not had the opportunity to have the continuing lawfulness of their detention examined by a judicial body.

At the time of the judgment of the European Court of Human Rights, no new tariff had been set due to several factors.

Issue and resolution:
Juvenile justice; DHMP sentences; right to fair trial. The Court found that the applicants' right to fair trial had been violated, and that the Secretary of State alone could not determine how long the applicants would remain in detention. 

Court reasoning:
Trial
- Article 3 (prohibition of inhuman or degrading treatment)
The Court ruled that the attribution of criminal responsibility to the applicants did not in itself amount to inhuman or degrading treatment and therefore did not violate Article 3. There is no common approach to the attribution of criminal responsibility among the Member States and no specific guidance within international texts and instruments. The age of 10, as stipulated in UK law, is towards the lower end of the range. However, it cannot be considered to be so young as to differ disproportionately from the age limit followed by other EU Member States.

Regarding the applicants’ three week trial in public in an adult court, the Court ruled that any inquiry would have provoked in the applicants feelings of guilt, distress, anguish and fear. The suffering didn’t go beyond that which would have been caused by any attempt to deal with the offences. Therefore, the applicants’ trial did not violate Article 3.

- Article 6(1) (right to fair trial)
Under Article 6(1), the accused must enjoy the right to understand what is happening at the trial and to play an active role in their defence, at least to the extent which could reasonably be expected of a child. Physical presence alone would not be sufficient. As the applicants were unable to do so they were denied a fair hearing in breach of Article 6. It is highly unlikely that the applicants would have felt sufficiently uninhibited, in the tense courtroom and under public scrutiny, to have consulted with their legal representatives during the trial or, given their immaturity and disturbed emotional state, would have been capable outside the courtroom of cooperating with their lawyers and giving them information for the purpose of their defence. A child aged 11 would likely find the highly formal setting intimidating, whether involved as a witness or a defendant. In addition, the boys were targeted by public hostility.

Sentence
- Article 3
The Court found no violation of Article 3 with respect to the length of the sentence. The punitive element in the tariff approach itself did not give rise to a breach of Article 3. The Convention does not prohibit States from subjecting a child convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention or recall to detention following release where necessary for the protection of the public. An unjustifiable and persistent failure to fix a tariff, leaving the detainee in uncertainty over many years as to their future, may give rise to an issue under Article 3. However, the relatively short period of time in which no tariff had been in force - six years in this case - did not violate the Convention.

- Article 5(1) (right to liberty)
The Court concluded that there had been no violation of Article 5(1). Sentences of DHMP are lawful under English law and were imposed in accordance with a procedure prescribed by law. The applicant’s detention was not arbitrary.

- Article 6(1)
The Court noted that the fixing of the tariff amounts to a sentencing exercise and therefore attracts the safeguard of Article 6(1). The applied tariff-fixing procedure is not compliant with the Convention, in particular because the Home Secretary, who set the tariff, was not an “independent tribunal”, as Article 6 requires, as he was clearly not independent of the executive.

- Article 5(4) (right to have lawfulness of continued detention decided by a court)
Since the applicants were deprived of an opportunity to initiate proceedings to have the lawfulness of their continued detention decided by a court, the Court found Article 5(4) had been violated. With reference to another judgment the Court recalled that after the expiry of the tariff period, Article 5 requires that the offender should be able to challenge periodically the legality of their detention. The reason for this is that the only justification could be dangerousness, which is subject to change in time. Further, as the Home Secretary set the tariff, it cannot be said that the supervision required by Article 5(4) was already incorporated in the trial court’s sentence. As there was no new tariff set, the applicants were not entitled to a review of the lawfulness of their detention.

Excerpts citing CRC and other relevant human rights instruments:

III. Relevant international texts

A. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)

43. The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. They provide, as relevant:

“4. Age of criminal responsibility

4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.

Commentary

The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.). Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable.
...

8. Protection of privacy

8.1 The juvenile's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.
...

17. Guiding principles in adjudication and disposition

17.1 The disposition of the competent authorities shall be guided by the following principles:

(a) The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society;

(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;

...

(d)The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.

...

Commentary

...

Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and future of the young person.

...”

B. The United Nations Convention on the Rights of the Child 1989

44. This treaty (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.

Article 3(i) of the UN Convention states:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 37(a) and (b) provides:

“States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ...”

Article 40 provides as relevant:

“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the reintegration and the child's assuming a constructive role in society.

2. To this end ... the States Parties shall, in particular, ensure that:

...

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

...

(vii.) To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular:

(a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal laws;

(b) whenever appropriate and desirable, measures for the dealing with such children without resorting to judicial proceedings, providing that human rights are fully respected.

...”

C. Committee on the Rights of the Child Report on the United Kingdom

45. In its concluding observations in respect of the United Kingdom (CRC/C/15/add.34) dated 15 February 1995, the Committee set up by the United Nations to monitor compliance with the UN Convention stated, inter alia:

“35. The Committee recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child-oriented ...

36. More specifically, the Committee recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom ...”

...

74. The Court notes in this connection that one of the minimum guarantees provided by Article 40 § 2 (b) of the [CRC] to children accused of crimes is that they should have their privacy fully respected at all stages of the proceedings. Similarly, Rule 8 of the Beijing Rules states that “the juvenile's privacy shall be respected at all stages” and that “in principle, no information that may lead to the identification of a juvenile offender shall be published”. Finally, the Committee of Ministers of the Council of Europe recommended in 1987 that member States should review their law and practice with a view to avoiding committing minors to adult courts where juvenile courts exist and to recognising the right of juveniles to respect for their private lives (see paragraphs 45, 46 and 49 above).

75. The Court considers that the foregoing demonstrates an international tendency in favour of the protection of the privacy of juvenile defendants, and it notes in particular that the [CRC] is binding in international law on the United Kingdom in common with all the other member States of the Council of Europe (see paragraph 46 above). Moreover, Article 6 § 1 of the [ECHR] states that “the press and public may be excluded from all or part of the trial ... where the interests of juveniles ... so require” (see further paragraph 81 below). However, whilst the existence of such a trend is one factor to be taken into account when assessing whether the treatment of the applicant can be regarded as acceptable under the other Articles of the [ECHR], it cannot be determinative of the question whether the trial in public amounted to ill-treatment attaining the minimum level of severity necessary to bring it within the scope of Article 3 (see paragraph 70 above).

...

96. In assessing whether the above facts constitute ill-treatment of sufficient severity to violate Article 3 (see paragraph 68 above), the Court has regard to the fact that Article 37 of the [CRC] prohibits life imprisonment without the possibility of release in respect of offences committed by persons below the age of eighteen and provides that the detention of a child “shall be used only as a measure of last resort and for the shortest appropriate period of time”, and that Rule 17.1(b) of the Beijing Rules recommends that “[r]estrictions on the personal liberty of the juvenile shall ... be limited to the possible minimum” (see paragraphs 43-44 above).

Concurring Opinion of Lord Reed:
The Court has rarely been required to consider the application of Article 6 to cases involving children accused of criminal offences. Article 6 itself, however, permits the exclusion of the public from all or part of a trial where the interests of juveniles so require, derogating from the general principle that trials must be held in public, and recognising that the interests of the child on trial are a relevant and important consideration.
There is on the other hand nothing in Article 6 to indicate that there can be any derogation, in cases involving children, from the principle that the trial process should provide for the effective participation of the accused, who must be able to follow the proceedings and to give instructions where necessary to his lawyer. In order for that principle to be respected in cases involving children, however, the conditions under which the trial is held (including the procedure followed) have to be such as will permit such participation, taking into account the age, level of maturity and intellectual and emotional capacity of the child concerned.

…

In considering whether the length of the original tariff, and the length of time already served by the applicant, are compatible with Article 3, it is appropriate to have regard to the UN Convention on the Rights of the Child, which is accepted by all of the member States, including the United Kingdom. Article 3(i) of the UN Convention requires that in all actions concerning children the best interests of the child shall be a primary consideration. Article 40(1) requires the child offender to be treated in a manner which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. These general requirements are reflected in Article 37(b) of the [CRC], which requires that the imprisonment of a child be used only as a measure of last resort and for the shortest appropriate period of time.

...

As was observed in the judicial review proceedings brought by the applicant (R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407, 499), the original tariff appears to have been fixed without regard to the requirements imposed by Articles 3(i) and 40(1) of the [CRC]. That tariff was however quashed. Bearing in mind that a child of the applicant's age would be likely to have been distressed by a tariff fixed in accordance with the [CRC], or for that matter by the prospect of a lengthy period of detention for non-punitive purposes, the imposition of the original tariff cannot in my opinion be regarded as ill-treatment attaining the minimum level of severity required by Article 3 of the Convention.

Joint partly dissenting opinion of Judges Pastor Ridruejo, Ress, Makarczyk, Tulkens and Butkevych:
2. As far as the trial is concerned, the Court recognises that there is an international tendency in favour of the protection of the privacy of juvenile defendants. It nevertheless finds that a lack of privacy cannot be decisive for the question whether the trial in public amounted to treatment attaining the minimum level of severity necessary to bring it within the scope of Article 3 of the Convention (see paragraph 75). According to Article 40 of the UN Convention on the Rights of the Child, privacy has to be “fully respected at all stages of the proceedings”, and it is a crucial element in minimising the suffering and humiliation of children. Although the [CRC] is binding on the United Kingdom, English law nevertheless allows lengthy criminal proceedings to be held in public in an adult court with all the attendant formality. Even if the trial judge did take certain steps to limit the impact of the trial on the children, for children of this age in an already disturbed emotional state, the experience of the trial must have been unbearable. The children were seated on a platform where they could be seen by the public and the press, and there is evidence that they found the public nature of the trial especially difficult to cope with, in particular since they perceived the public as hostile: on one occasion the van that brought them to court was attacked and by the time of the trial there had already been a virulent press campaign which prompted their representatives to apply to the judge for a stay of proceedings. Before this audience of members of the public and journalists the applicants had to begin the process of coming to terms with the crimes which they had committed. They had to listen to the witnesses' accounts of the events of the day in question and the tapes of their own interviews with the police. They had to hear the jury's verdict of guilty and the judge passing the sentence. At the end of this public exposure they were informed that the judge had decided to lift the ban on the publication of their names. We have no doubt that such proceedings could be expected to produce a lasting harmful effect on an 11-year-old child, and a high level of suffering. Thus, Professor Rutter in his report on V. dated February 1998 expressed the opinion, inter alia, that the holding of a trial in public and the negative public reaction could potentially be damaging to a child of his age (see paragraph 18). 

Follow Up:
Following the decision of the European Court, the UK courts reviewed the minimum “tariff” to be served by T and V and reduced it to eight years. In June 2001, after a six month review, the parole board ruled the boys were no longer a threat to public safety and could be released as their minimum tariff had expired. The Home Secretary approved the decision, and they were released a few weeks later on probation for life. The boys, then aged 18, were given new identities and moved to secret locations, although V was later returned to prison for offences related to the possession of child pornography.

CRIN Comments:
CRIN believes this decision is consistent with the CRC. Children in conflict with the law have the right to be processed through a separate juvenile justice system tailored to their special situation and should never be subjected to public criminal trials. Article 37 of the CRC also specifies that detention should only be used as a matter of last resort for child offenders and for the shortest period of time possible, and Article 40 requires that States design juvenile justice systems with the “desirability of promoting the child's reintegration and the child's assuming a constructive role in society” in mind. It is difficult to see how an indeterminate sentence with no defined end point could meet these standards, and CRIN believes that potentially lifelong sentences of imprisonment are never appropriate for children, however serious the nature of their offences. 

Citation:
T v. United Kingdom – Application No. 24724/94, ECtHR
V v. United Kingdom – Application No. 24888/94, ECtHR

Link to Full Judgment:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58593
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58594

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.