Did rape trial serve public interest?
The Crown Prosecution Service's attempts to convict primary-school children of rape have consistently failed. According to court statistics, they have tried six times in the last decade and six times the 10-or-11-year-olds in the dock have been acquitted of that charge.
Yesterday, two more small boys were found not guilty - a divided Old Bailey jury instead convicted them of attempted rape. Their names have been placed on the sex offenders register, a status that is likely to have repercussions on the rest of their lives. They will be sentenced in eight weeks.
Chief Crown Prosecutor, Alison Saunders, stood outside the court yesterday afternoon to justify putting the boys and their eight-year-old victim through the ordeal of a full trial.
"The decision to prosecute was not taken lightly," she insisted, reminding reporters that the CPS has a "duty to prosecute where there is sufficient evidence to do so and a prosecution is in the public interest". This morning, however, some are questioning whether the public interest was served.
Writing in the Daily Telegraph, columnist Philip Johnston asks whether there is "any other country in the world where the pre-pubescent fumblings of children would result in a rape trial?" He regards it as "astonishing" that the little boys were convicted "but even more amazing is that it even came to court at all". It is a view echoed by other commentators today - see this round-up of responses.
Prosecutors in England and Wales are certainly under pressure to take more alleged rapists to court, particularly those accused of unlawful intercourse with a minor - statutory rape. Guidance states that "the public interest requires the prosecution of an offence of unlawful sexual intercourse with a girl under 13 unless exceptional circumstances exist".
So were there "exceptional circumstances" in this case?
Some would argue that the fact the alleged perpetrators were only 10-years-old was just that. The law of statutory rape was clearly not devised to criminalise very young children whose first sexual encounters go too far.
Many rape statutes specify that statutory rape occurs when the complainant is under a certain age but also that the perpetrator is over a certain age. No such distinction applies in England and Wales.
In a speech last year, the Director of Public Prosecutions, Keir Starmer, reminded staff that "the Code for Crown Prosecutors makes clear that the interests of a youth must be considered" when deciding whether it is in the public interest to go ahead with the prosecution of a young child. He also said that prosecutors are obliged by law to "have regard to the welfare of any children appearing in court, whether as defendants or not".
He pointed out that "England and Wales has one of the lowest ages of criminal responsibility in the world, much lower than in the majority of our European counterparts".
Few other Western nations would even consider prosecuting a 10-year-old for any crime, never mind statutory rape.
"For example in the Scandinavian nations the age of criminal responsibility is 15, in Portugal and Spain it is 16, and in Belgium and Luxembourg it is 18," Mr Starmer said. Having taken the decision to treat very young children as criminally responsible for their actions in Britain (the age of criminal responsibility in Scotland is currently eight), the youth prosecutor "makes important decisions regarding outcomes for very young offenders that are made by care and social services agencies in most European countries," Mr Starmer told his audience.
The fact that the boys were accused of "statutory rape" raises further questions. The issue of consent from the eight-year-old girl did not apply in this case because the law assumes she is too young to give it. The jury did not need to consider whether this was a game of "doctors and nurses" that got out of hand, or even whether the girl had participated or encouraged the activities.
Their conclusion was simply that the boys tried and failed to have intercourse with her. With very young defendants there must be a question as to whether they can be expected to have an understanding of the complexities of the law in this area. It is one thing to "know right from wrong" but another to understand that the criminal justice system would regard touching private parts with a play-mate as potentially a matter which risks years in jail and a lifetime on the sex offenders register.
The CPS code reminds prosecutors that the Crime and Disorder Act 1998 states "it shall be the principal aim of the youth justice system to prevent offending by children and young persons". The reason for taking children to court is primarily to stop them breaking the law in future, not simply for retribution or to punish misdemeanours in the past.
As the act makes clear, that preventive approach "provides a new guiding principle to which all agencies and individuals can relate their work and responsibilities". So a further question for the CPS is whether prosecution in this case made it less likely that the two boys will re-offend.
"I don't think anyone who has sat through this trial would think for a moment that the system that we employ is ideal," the judge, Mr Justice Saunders, said. He was reflecting on the proceedings but his remark has been seized upon by those who think the case should never have come to court in the first place.