T. v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 24724/94

                      by T.

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

6 March 1998, the following members being present:

           MM    S. TRECHSEL, President

                 M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A. WEITZEL

           Mrs   G.H. THUNE

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 D. SVÁBY

                 A. PERENIC

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    A. ARABADJIEV

           Mr    M. de SALVIA, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 20 May 1994 by T.

against the United Kingdom and registered on 28 July 1994 under file

No. 24724/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 28 November 1994 to communicate the

     application;

-    the observations submitted by the respondent Government on

     29 March 1995 and the observations in reply submitted by the

     applicant on 21 June 1995;

-    the observations submitted by the Government on 16 February 1998;

-    the oral observations made by the parties at the hearing held in

     Strasbourg on 6 March 1998;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1982 and currently

serving a sentence of detention during Her Majesty's pleasure in a

secure unit run by a local authority. He is represented before the

Commission by Mr. Dominic Lloyd, a solicitor practising in Liverpool.

The facts as submitted by the parties may be summarised as follows.

a.   Particular circumstances of the case

     The applicant had a troubled childhood. His father left the

family home without warning in 1988. The applicant's early schooling

was characterised by persistent truanting.

     On 24 November 1993, the applicant, aged 11, was convicted of

murder and sentenced to detention during Her Majesty's pleasure.

     The conviction related to an offence of murder committed by the

applicant when he was ten years old in the company of another ten year

old boy J.V.. The offence involved the killing of a two year old boy

whom the two offenders had abducted from a shopping precinct and who

was then battered to death and left on a railway line to be run over.

     The trial of the applicant and J.V. took place in public in an

adult Crown Court, preceded by massive national publicity. The names

of the two boys were not disclosed during the proceedings but the judge

ordered that the names be made public at the end of the trial. Pictures

of the boys were shown on television and in the press.

     On 1 November 1993, at the beginning of the trial, the

applicant's lawyer objected that the trial was unfair due to the nature

and extent of the media coverage. After hearing argument, the trial

judge found that it was not established that the defendants would

suffer serious prejudice to the extent that no fair trial could be

held. He referred to the warning that had been given to the jury to put

out of their minds anything which they might have heard or seen about

the case outside the courtroom.

     After conviction, the trial judge recommended a period of eight

years be served by the boys to satisfy the requirements of retribution

and deterrence (the "tariff"). The Lord Chief Justice recommended a

period of ten years. The applicant's representatives made written

representations to the Secretary of State, who was to fix the tariff

period.

     The applicant made no appeal to the Court of Appeal against his

conviction.

     By letter dated 16 June 1994, the Secretary of State informed the

applicant that the family of the deceased child had submitted a

petition signed by 278,300 people urging him to take account of their

belief that the boys should never be released, accompanied by

4,400 letters of support from the public; that a Member of Parliament

had submitted a petition signed by 5 900 people calling for a minimum

of 25 years to be served; that 21,281 coupons from the Sun newspaper

supporting a whole life tariff and that a further 1,357 letters and

small petitions had been received of which 1,113 wanted a higher tariff

than the judicial recommendations. His solicitors were given an

opportunity to submit further representations to the Secretary of

State.

     By letter dated 22 July 1994, the Secretary of State informed the

applicant that he should serve a period of fifteen years in respect of

retribution and deterrence. The letter stated inter alia:

     "In making his decision, the Secretary of State had regard to the

     circumstances of the offence, the  recommendations received from

     the judiciary, the representations made on your behalf and the

     extent to which this case could be compared with other cases. He

     also has regard to the public concern about this case, which was

     evidenced by the petitions and other correspondence the substance

     of which were disclosed to your solicitors by our letter of

     16 June 1994, and to the need to maintain public confidence in

     the system of criminal justice.

     The Secretary of State accepts that you did not have an easy

     childhood for the reasons set out in the representations which

     your solicitors received from your mother. He also takes fully

     into account the fact that you were only 10 years old when the

     offence was committed. He further acknowledges that a much lesser

     tariff should apply than in the case of an adult.

     The Secretary of State notes that the trial judge was unable to

     determine the relative culpability of yourself and your co-

     defendant. The Secretary of State has reached the same

     conclusion.

     The recommendations made by the trial judge and the Lord Chief

     Justice were that the appropriate tariff should be 8 years, and

     10 years respectively. The trial judge added that if the

     defendants had been adults then the appropriate tariff would have

     been 18 years. The Secretary of State has had regard to these

     views. He takes the view that this was an exceptionally cruel and

     sadistic offence against a very young and defenceless victim

     committed over a period of several hours. The Secretary of State

     believes that if the offence had been committed by an adult then

     the appropriate tariff would have been in the region of 25 years

     and not 18 years as suggested by the trial judge.

     For these reasons, and bearing in mind your age when the offence

     was committed, the Secretary of State has decided to fix a tariff

     of 15 years in your case. The Secretary of State is satisfied

     that such a tariff is consistent with the tariffs fixed in other

     cases.

     The Secretary of State is prepared to consider any fresh

     representations which you or your representatives might wish to

     make about the length of the tariff and, in the light of such

     fresh representations, to reduce the tariff if appropriate."

     The applicant instituted judicial review proceedings challenging,

inter alia, the tariff which has been set by the Secretary of State as

being disproportionately long and fixed without due regard to the needs

of rehabilitation. Leave was granted on 7 November 1994.

     On 2 May 1996, the Divisional Court upheld part of the

applicant's claims. On 30 July 1996, the Court of Appeal dismissed the

appeal of the Secretary of State. On 12 June 1997, the House of Lords

by a majority dismissed the Secretary of State's appeal and allowed the

applicant's cross-appeal. A majority of the House of Lords found that

it was unlawful for the Secretary of State to adopt a policy, in the

context of applying the tariff system, which, even in exceptional

circumstances, treated as irrelevant the progress and development of

a child who was detained during Her Majesty's pleasure. A majority of

the House of Lords also held that in fixing a tariff the Secretary of

State was exercising a power equivalent to a judge's sentencing power

and, like a sentencing judge, he was required to remain detached from

the pressure of public opinion. Since the Secretary of State had

misdirected himself in giving weight to the public protests about the

level of the applicant's tariff and had acted in a procedurally unfair

way, his reasons had been rendered unlawful.  The tariff set by the

Secretary of State was accordingly quashed.

     On 10 November 1997, the Secretary of State informed Parliament

that, in light of the House of Lords' judgment, he had adopted a new

policy in relation to young offenders convicted of murder and sentenced

to detention during Her Majesty's pleasure pursuant to which, inter

alia, the tariff initially set would be kept under review by the

Secretary of State in light of the progress and development of the

offender. The Secretary of State has invited the applicant's

representatives to make representations to him with regard to the

fixing of a fresh tariff.

b.   Relevant domestic law and practice

     1. Age of criminal responsibility

     Pursuant to section 50 of the Children and Young Persons Act 1933

(as amended in 1963), the age of criminal responsibility in England and

Wales is ten years, below which no child can be found guilty of an

offence. A child between the age of ten and fourteen is subject to a

presumption that he or she is doli incapax: this presumption may be

rebutted by the prosecution proving beyond a reasonable doubt that the

child knew that the act was wrong as distinct from merely naughty or

childish mischief (In Re C. (a minor) (A.P.) 16 March 1995 House of

Lords).

     2.    Mode of trial

     Pursuant to section 24 of the Magistrates' Courts Act 1980,

children and young persons under 18 years must be tried summarily in

the magistrates' court unless charged with homicide, manslaughter or

other offence punishable if committed by an adult with fourteen or more

years' imprisonment.

     3. Detention at Her Majesty's pleasure

     Background

     The notion of detention during Her Majesty's pleasure had its

origins in an Act of 1800 for "the safe custody of insane persons

charged with offences".  Section 1 provided that defendants acquitted

of a charge of murder, treason or felony on the grounds of insanity at

the time of the offence were to be detained in "strict custody until

His Majesty's pleasure shall be known" and described their custody as

being "during His pleasure".

     In 1908, detention during His Majesty's pleasure was introduced

in respect of offenders aged ten to sixteen and then extended to cover

those under eighteen in 1933. The provision in force at present is

Section 53 (1) of the Children and Young Persons Act 1933 (as amended)

which provides:

     "A person convicted of an offence who appears to the Court to

     have been under the age of eighteen years at the time the offence

     was committed shall not, if he is convicted of murder, be

     sentenced to imprisonment for life nor shall sentence of death

     be pronounced on or recorded against any such person but in lieu

     thereof the court shall ... sentence him to be detained during

     Her Majesty's pleasure and, if so sentenced he shall be liable

     to be detained in such a place and under such conditions as the

     Secretary of State may direct."

     At the age of 18, the child sentenced to detention during Her

Majesty's pleasure becomes liable to be transferred to a Young

Offender's Institution and thereafter, at the age of 21, to detention

on the same basis and in the same institution as an adult sentenced to

life imprisonment for murder.

     Categorisation of detention "during Her Majesty's pleasure"

     Mandatory life sentences are imposed in respect of the offence

of murder committed by adults (Murder (Abolition of Death Penalty) Act

1967). Persons convicted of certain violent or sexual offences, eg.

manslaughter, rape, or robbery, may be sentenced to life imprisonment

at the discretion of the trial judge. The principles underlying the

passing of a discretionary life sentence are:

     i. that the offence is grave and

     ii. that there are exceptional circumstances which demonstrate

     that the offender is a danger to the public and that it is not

     possible to say when that danger will subside.

     The sentence of "custody for life" is imposed where the offence

of murder is committed by an individual between the ages of 18 and 21

(section 8 (1) of the Criminal Justice Act 1982).

     In the case of ex parte Prem Singh on 20 April 1993, Evans LJ in

the Divisional Court held as follows in respect of detention "during

Her Majesty's pleasure":

     "At the time of sentencing, the detention orders under section

     53 were mandatory.  It is indeed the statutory equivalent for

     young persons of the mandatory life sentence for murder.  But the

     sentence itself is closer in substance to the discretionary

     sentence of which part is punitive (retribution and deterrence)

     and the balance justified only by the interests of public safety

     when the test of dangerousness is satisfied.  The fact that the

     mandatory life prisoner may be given similar rights as regards

     release on licence does not alter the fact that the mandatory

     life sentence is justifiable as punishment for the whole of its

     period: see R. v. Secretary of State, ex.p. Doody & others [1993]

     Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992).  The order

     for detention under section 53 is by its terms both discretionary

     and indeterminate: it provides for detention 'during Her

     Majesty's pleasure'. (Section 53(4) which expressly authorised

     the Secretary of State to discharge the detainee on licence 'at

     any time' was repealed by the Parole Board provisions of the

     Criminal Justice Act 1967, but this does not, in my judgment,

     alter the nature of the sentence in any material respect.)  I

     would decide the present case on the narrow ground that,

     notwithstanding Home Office and Parole Board practice, the

     applicant should be regarded as equivalent to a discretionary

     life prisoner for the purpose of deciding whether Wilson rather

     than Payne governs his case."

     The Court accordingly held that the applicant in the case,

detained during Her Majesty's pleasure, should be afforded the same

opportunity, as would be given a discretionary life prisoner, to see

the material before the Parole Board when it decided upon whether he

should be released after his recall to prison on revocation of his

licence.

     Release on licence and revocation of licences

     Persons sentenced to mandatory and discretionary life

imprisonment, custody for life and those detained during Her Majesty's

pleasure have a "tariff" set in relation to that period of imprisonment

they should serve to satisfy the requirements of retribution and

deterrence. After the expiry of the tariff, the prisoner becomes

eligible for release on licence. Applicable provisions and practice in

respect of the fixing of the tariff and release on licence have been

subject to change in recent years, in particular, with the Criminal

Justice Act 1991 (the 1991 Act).

     On 1 October 1992, Part II of the 1991 Act came into force.

     The 1991 Act instituted changes to the regime applying to the

release of discretionary life prisoners following the decision of the

Court in the Thynne, Wilson and Gunnell case (Eur. Court H.R., judgment

of 25 October 1990, Series A no. 190).

     Pursuant to section 34 of the 1991 Act, the tariff of a

discretionary life prisoner is fixed in open court by the trial judge

after conviction. After the tariff has expired, the prisoner may

require the Secretary of State to refer his case to the Parole Board

which has the power to order his release if it is satisfied that it is

no longer necessary for the protection of the public that he be

detained. Pursuant to the Parole Board Rules 1992 which came into force

on 1 October 1992, a prisoner is entitled to an oral hearing, to

disclosure of all evidence before the panel and to be legally

represented. There is provision enabling a prisoner to apply to call

witnesses on his behalf and to cross-examine those who have written

reports about him.

     For the purposes of the 1991 Act, persons detained at Her

Majesty's pleasure or serving mandatory sentences of life imprisonment

or custody for life are not regarded as discretionary life prisoners.

In relation to these prisoners, the Secretary of State continues to

decide the length of the tariff. The view of the trial judge is made

known to the prisoner after his trial as is the opinion of the Lord

Chief Justice. The prisoner is afforded the opportunity to make

representations to the Secretary of State who then proceeds to fix the

tariff and is entitled to depart from the judicial view (R. v.

Secretary of State for the Home Department, ex parte Doody [1993] 3 AER

92).

      As regards release on licence, these categories of prisoners are

subject to section 35 of the 1991 Act, which provides as relevant:

     "(2) If recommended to do so by the Board, the Secretary of State

     may, after consultation with the Lord Chief Justice together with

     the trial judge if available, release on licence a life prisoner

     who is not a discretionary life prisoner."

     Section 39 provides as relevant:

     "(1) If recommended to do so by the Board in the case of a long

     term or life prisoner who has been released on licence under this

     Part, the Secretary of State may revoke his licence and recall

     him to prison...

     (3) A person recalled to prison under subsection (1) or (2) above

           (a) may make representations in writing with respect to his

           recall; and

           (b) on his return to prison, shall be informed of the

           reasons for his recall and of his right to make

           representations.

     (4) The Secretary of State shall refer to the Board -

           (a) the case of a person recalled under subsection (1)

           above who makes representations under sub-section (3)

           above...

     (5) Where on a reference under subsection (4) above the Board -

           (a) directs in the case of a discretionary life prisoner;

           or

           (b) recommends in the case of any other person,

     his immediate release on licence under this section, the

     Secretary of State shall give effect to the direction or

     recommendation."

     On 27 July 1993, the Secretary of State made a statement of

policy in relation to mandatory life prisoners, stating, inter alia,

that before any such prisoner is released on licence he

     "will consider not only, (a) whether the period served by

     the prisoner is adequate to satisfy the requirements of

     retribution and deterrence and (b) whether it is safe to

     release the prisoner, but also (c) the public acceptability

     of early release. This means I will only exercise my

     discretion to release if I am satisfied that to do so will

     not threaten the maintenance of public confidence in the

     system of criminal justice".

     Recent developments

     On 1 October 1997, section 28 of the Crime (Sentences) Act 1997

was brought into force in order to implement the judgment of the Court

in the Hussain and Singh cases (Eur. Court HR, Hussain v. United

Kingdom judgment of 21 February 1996, Reports 1996-I, p. 252 and Singh

v. United Kingdom judgment of 21 February 1996, Reports 1996-I,

p. 280). The section provides that, after the tariff period has

expired, it shall be for the Parole Board (and not, as previously, for

the Secretary of State) to decide whether it is safe to release on life

licence an offender serving a sentence of detention during Her

Majesty's pleasure for an offence of murder committed before that

offender reaches the age of 18.

     On 10 November 1997, the Secretary of State announced that, in

light of the House of Lords decision of 12 June 1997 in the applicant's

case, he would adopt the following policy in respect of persons

convicted of murder and detained during Her Majesty's pleasure:

     "I shall continue to seek the advice of the trial judge and

     the of the Lord Chief Justice in deciding what punishment

     is required in any case of a person convicted under section

     53(1) of the Children and Young Persons Act 1933. I shall

     then set an initial tariff with that advice, and the

     offender's personal circumstances, in mind; I shall

     continue to invite representations on the prisoner's behalf

     and give reasons for decisions.

     Officials in my Department will receive annual reports on

     the progress and development of young people sentenced

     under section 53(1) whose initial tariff has yet to expire.

     Where there appears to be a case for considering a

     reduction in tariff, that will be brought to the attention

     of Ministers.

     When half of the initial tariff period has expired, I, or

     a Minister acting on my behalf, will consider a report on

     the prisoner's progress and development, and invite

     representations on the question of tariff, with a view to

     determining whether the tariff period originally set is

     still appropriate...."

COMPLAINTS

     Concerning the trial

     The applicant submits that his trial at the age of 11 for an

offence committed at the age of ten violates Articles 3, 6 and 14 of

the Convention.

     The applicant submits that to treat a child of his age as

criminally liable and to put him on public trial in an adult court

constitutes inhuman and degrading treatment.

     The applicant submits that his trial on a charge of murder

violates Article 6 of the Convention since it is impossible to be

satisfied that a ten year old sufficiently understands the proceedings

to be able to instruct counsel competently and make informed choices

as to his defence. He was not in fact able to understand and follow the

trial proceedings and to appreciate the defences open to him to ensure

that his trial was a fair one.

     The applicant complains of discrimination, alleging that there

is no rational basis for treating a ten year old as accountable,

whereas a 9 year old is exempted from all criminal liability.

     Concerning the penalty imposed

     The applicant submits that the penalty imposed of detention

during Her Majesty's pleasure was so severe in its consequences for a

child of 11, who was ten at the time of the offence, as to constitute

an inhuman punishment and/or inhuman treatment. It is also enforced in

a manner that is punitive and this expressly punitive element, when

applied to a child, violates Articles 3 and 5 of the Convention in that

it is not authorised by law. By reason of its mandatory nature, the

judge having no discretion to impose a sentence appropriate to a child

offender's background and circumstances, the sentence was arbitrary

and, again, contrary to Article 5.

     Concerning detention

     The applicant complains of the procedure by which his "tariff"

is fixed by a member of the executive rather than by a fair and

impartial tribunal independent of the executive. As a sentence within

a sentence, the applicant submits that the imposition of the "tariff"

should attract the safeguards of Article 6 of the Convention.

     The applicant further submits that the length of detention after

the "tariff" should be subject to review by a court satisfying the

requirements of Article 5 para. 4 of the Convention.

     The applicant complains that the lack of any mechanism to review

and, if appropriate, to terminate the sentence altogether, either at

the attainment of majority or thereafter, violates Articles 3 and 5 of

the Convention. Liability to what is effectively punitive detention in

an adult institution after the age of 18, for an offence committed when

aged ten, also violates Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 20 May 1994 and registered on

28 July 1994.

     On 28 November 1994, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on

29 March 1995 after one extension of the time-limit fixed for that

purpose.  The applicant replied on 21 June 1995, also after two

extensions of the time-limit.

     On 19 January 1996, the Commission decided to invite the parties

to make submissions on the admissibility and merits of the application

at an oral hearing, to be held jointly with Application No. 24888/94

V. v. United Kingdom. The date of the hearing was to be fixed having

regard to the delivery of judgment in the cases of Abed Hussain v.

United Kingdom and Prem Singh v. United Kingdom. Judgment was given in

these two cases on 21 February 1996 (Eur. Court H.R., Abed Hussain v.

United Kingdom judgment, Reports 1996-I, p. 252 and Prem Singh v.

United Kingdom, Reports 1996-I, p. 280).

     On 19 April 1996, the Commission granted the applicant legal aid.

     Following consultation with the parties, the oral hearing was

fixed for 5 September 1996.

     By letter dated 16 July 1996, the parties informed the Commission

that judgment by the Court of Appeal in the applicants' judicial review

application was expected imminently and that in view of the likelihood

of appeal being granted to the House of Lords, they requested that the

hearing be adjourned.

     Following the judgment of the House of Lords on 12 June 1997, the

applicant was consulted regarding his intention to continue with his

application. Having consulted the parties, the hearing was fixed for

6 March 1988.

     On 16 February 1998, the Government submitted a written brief for

the hearing.

     On 6 March 1998, at the hearing held in Strasbourg, the parties

were represented as follows. The Government were represented by their

Agent, Mr I. Christie, Mr D. Pannick QC, and Mr M. Shaw as counsel and

Ms C. Price and Mr T. Morris, as advisers from the Home Office. The

applicant was represented by Mr J. Nutter as counsel and Mr D. Lloyd,

solicitor.

THE LAW

     The applicant complains of the process by which, and conditions

under which, he was tried for murder; the nature of the sentence

imposed and the length of the tariff period imposed in respect of

retribution and deterrence; the tariff-fixing procedure; the

arbitrariness of his detention; and an alleged lack of any effective

review by a judicial body of the lawfulness of his detention. He

invokes the following provisions of the Convention.

                 Article 3 (Art. 3) of the Convention

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

                 Article 5 (Art. 5) of the Convention

     "1.   Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

           a.    the lawful detention of a person after conviction by

     a competent court;

     ...

     4.    Everyone who is deprived of his liberty by arrest or

     detention shall be entitled to take proceedings by which the

     lawfulness of his detention shall be decided speedily by a court

     and his release ordered if the detention is not lawful. "

                 Article 6 (Art. 6) of the Convention

     "1.   In the determination of his civil rights and obligations or

     of any criminal charge against him, everyone is entitled to a

     fair and public hearing within a reasonable time by an

     independent and impartial tribunal established by law.  Judgment

     shall be pronounced publicly but the press and public may be

     excluded from all or part of the trial in the interest of morals,

     public order or national security in a democratic society, where

     the interests of juveniles or the protection of the private life

     of the parties so require, or to the extent strictly necessary

     in the opinion of the court in special circumstances where

     publicity would prejudice the interests of justice."

                 Article 8 (Art. 8) of the Convention

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

                Article 14 (Art. 14) of the Convention

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     Exhaustion of domestic remedies

     Insofar as the applicant complains that his trial was unfair

since he could not properly understand, or participate in, the

proceedings, the Government submit that the applicant has failed to

exhaust domestic remedies as required by Article 26 (Art. 26) of the

Convention since he failed to complain of this during or after the

proceedings, by way of appeal. Similarly, no complaint was made during

the proceedings as to any alleged unfairness caused by the public

nature of the proceedings.

     The applicant submits that an application to the trial judge, or

an appeal, on the basis that he was unfit to plead would have stood no

prospect of success since the legal test of incapacity required is set

very high. He points out that evidence was called before the court as

to his mental age and capacity and that the trial judge was himself

under a duty to raise the issue. He also argues that in any event a

successful plea of unfitness would have only had the effect of

postponing the trial, and his eventual rehabilitative treatment, until

he was considered fit to plead. He further disputes that there was any

realistic prospect of applying to the judge in respect of the public

nature of the proceedings.

     The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies as relate to

the breaches of the Convention alleged and at the same time can provide

effective and sufficient redress.  An applicant does not need to

exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).

     It is furthermore established that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80,

Dec. 11.12.82, D.R. 30 p. 96, at p. 102).

     The Commission recalls that domestic law sets the age of criminal

responsibility at ten and further provides that a child above that age

who is charged with murder shall be tried in an adult criminal court,

the proceedings in which court are in principle open to the public.

It is not satisfied that any application to the trial judge or on

appeal would have stood any effective prospect of success insofar as

it relied on the applicant's age and the consequences of that on his

capacity to understand or effectively participate in the proceedings.

It observes that the Government have not disputed the applicant's

assertion that a finding of unfitness to plead, namely, that the

applicant was not fit to stand trial, would have had the effect only

of postponing the proceedings to a later date. It considers that an

indeterminate adjournment of this kind could only be regarded as

seriously detrimental to the applicant's interests in obtaining

appropriate treatment. It would also note that Article 6 (Art. 6) of

the Convention requires criminal proceedings to be determined within

a reasonable time.  Consequently, it does not consider that the

possibility of invoking an alleged unfitness to plead on the part of

the applicant can be regarded as a practically available remedy within

the meaning of Article 26 (Art. 26) of the Convention.

     The Commission therefore finds that this aspect of the

application cannot therefore be rejected for failure to exhaust

domestic remedies.

     As regards the substance of the application

     The Government submit, inter alia, that the criminal proceedings

by which the applicant was found guilty of murder did not constitute

inhuman or degrading treatment or punishment contrary to Article 3

(Art. 3) of the Convention. They point out that the social services and

the trial judge took steps to protect the applicant's welfare and

interests during the proceedings and that it was necessary to prove

beyond reasonable doubt his responsibility for the grave crime in

issue. Since the public had a legitimate interest in being informed

about the serious matters in issue, the authorities were entitled to

hold the trial in public. The Government also dispute that the

applicant suffered any significant degree of distress, anguish or fear

beyond that which would inevitably have ensued from an enquiry into the

appalling murder and his own reflection as to his conduct and the

possible consequences.

     The Government submit that the proceedings complied fully with

the fairness requirements imposed by Article 6 (Art. 6) of the

Convention, pointing out that the applicant was represented by highly

experienced leading counsel and that no complaint was made during or

after the proceedings as to his inability properly to understand what

was happening. During the trial, the issue of the applicant's

responsibility for his actions was subject to the taking of evidence

and accepted as proved beyond reasonable doubt by the jury, who were

also satisfied that the applicant knew that his acts were seriously

wrong. They submit that the trial procedure was not discriminatory

contrary to Article 14 (Art. 14), noting that the applicant's status

as a child was taken into account in modifying the proceedings and that

his position could not be compared with that of children under 10 or

adults with diminished responsibility.

     The Government dispute that the sentence of detention during Her

Majesty's pleasure per se discloses treatment of such severity as to

constitute inhuman or degrading treatment or punishment. The applicant

is currently receiving education, training, health care and

recreational facilities appropriate to his age and cannot complain that

he will continue to be detained unless and until it is safe to release

him into the community. Nor can it be inappropriate for the applicant,

when he grows older, to be treated in the same way as other offenders

of the same age. The Government also submit, in the context of

Article 5 para. 1 (Art. 5-1), that there is nothing arbitrary about the

sentence of detention which has been imposed. In their view, Article

6 para. 1 (Art. 6-1) does not apply to the tariff fixing procedure and

its requirements are fully satisfied by the imposition of the sentence

by a judge following conviction by a jury. Finally, they submit that

review of the lawfulness of the applicant's detention required by

Article 5 para. 4 (Art. 5-4) was satisfied by the trial procedure and

any subsequent issues of lawfulness may be subject to applications for

judicial review, and once the tariff has expired, to review by the

Parole Board.

     The applicant submits, inter alia, that the process of putting

him on trial in a public criminal court for adults constituted inhuman

and degrading treatment or punishment contrary to Article 3 (Art. 3)

of the Convention. He refers to his young age, the frightening nature

of the ordeal and evidence that the intimidating and humiliating nature

of the proceedings had a destructive and devastating effect. He also

submits that as a child aged 10 at the time of the offence he should

not have been held criminally liable. In the alternative, if the

treatment does not reach the level of severity necessary for the

purposes of Article 3 (Art. 3), he submits that it nonetheless

discloses a violation of his right to respect for private life under

Article 8 (Art. 8) of the Convention, in particular, the public nature

of the proceedings and the unnecessary disclosure of his identity.

     The applicant invokes Article 6 (Art. 6) of the Convention,

arguing that he did not have a fair trial since he was unable to

understand and participate effectively in the proceedings due to his

young age, the nature of the proceedings and the traumatising effect

of those proceedings.  He submits that fairness requires that trial

procedures for young children be modified to take their best interests

as a primary consideration. He complains additionally that the

proceedings disclose discrimination contrary to Article 14 (Art. 14)

in that children of nine could not have been held criminally liable and

that adults with arrested development giving them a mental age of ten

would have been afforded the defence of diminished responsibility to

a charge of murder.

     The applicant further complains that the sentence of detention

during Her Majesty's pleasure applied to children, which is mandatory,

indeterminate, contains a substantial punitive element and is not

terminable at any stage, constitutes inhuman and degrading treatment

contrary to Article 3 (Art. 3). He also refers to the consequence that

as he grows older he will be transferred to young offenders'

institutions and adult prisons where he will be treated in the same way

as persons who committed their offences at an older age. He submits

that this sentence also constitutes an arbitrary deprivation of liberty

contrary to Article 5 para. 1 (Art. 5-1) and that the fixing of the

tariff by the Secretary of State violates Article 6 para. 1 (Art. 6-1)

in that his sentence is effectively determined by a political rather

than judicial body. The lack of any immediate or subsequent periodic

review by a judicial body of his continued detention is also claimed

to violate the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention.

     The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of fact and law under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

        M. de SALVIA                        S. TRECHSEL

          Secretary                          President

      to the Commission                   of the Commission

 

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