What’s the age of evil?

Even if the sixth accused in the Delhi gangrape was 17 years, six months and 12 days, his actions proved youth is not innocence

It was with shocked disbelief I learnt that only five of the six men accused of committing one of the most bestial crimes of recent years had been formally charged. Although it was obvious the authorities were playing safe over the sixth, I still hope they will respond to the demand for justice rather than hide behind the letter of an outdated and alien law that has been set aside when necessary even in its country of origin.

In at least two historic instances of gruesome murder in Britain, children were tried as adult criminals.
In the first case, two eight-year-old boys were guilty of killing a two-year-old on April 11, 1861. The second instance — the murder of another two-year-old by two boys aged ten on February 12, 1993 — provoked more than 280,000 anguished signatories to demand the strongest possible punishment. All four boys faced full trial like adults.
There was no dispute about the age of these offenders. Their births were recorded. They didn’t need a certificate from a village school which would have been highly suspect even without the mother of the sixth man involved in the infamous December 16 episode raising doubts. Even if her son really was 17 years, six months and 12 days, his actions proved youth is not innocence.
That stark truth was highlighted in the horrendous 1861 murder in the northern English industrial town of Stockport. Stockport hadn’t forgotten, when I was a reporter there 97 years later, how the two eight-year-olds brutally drowned the toddler and beat him to death. The town coroner ruled it wasn’t the age of the offenders but their “strength of understanding and judgment” that established the true “capacity to do evil or contract guilt”.
The duo knew the difference between right and wrong as did the six men in the Delhi bus. The coroner stressed that by choosing a “secluded place” for their “horrifyingly brutal” deed and by keeping quiet about it, they proved their “consciousness of guilt” beyond any doubt. Because of their tender age, he went out of his way to explain the law regarding their “capacity to commit the crime”. Before the age of seven, he said (now raised to ten in England and Wales but still eight under Scottish law) no infant can be guilty of or punished for a capital offence. But between eight and 14, “the presumption… that an infant is incapable of judging between good and evil can be rebutted by strong and pregnant evidence of a mischievous discretion”.
The boys had exhibited “mischievous discretion”. Their “strength of understanding and judgment” and not their age proved their true “capacity to do evil or contract guilt”. If the jury was satisfied they had killed the toddler and were capable of discerning good from evil, their verdict had to be “wilful murder, for there was nothing in the evidence to reduce it below that offence, and the case would then be dealt with by a higher tribunal.” The jury unhesitatingly returned a verdict of wilful murder and the boys were committed to assizes for trial. There, however, a judge tempered justice with compassion, directing the jury to return a verdict of manslaughter instead of murder, which they dutifully did in just 15 minutes.
In the other tragedy, 132 years later, the two ten-year-olds abducted and dragged their crying victim nearly three miles across a Liverpool suburb, smashed his skull with bricks, stones and a metal bar on a lonely stretch of railroad track and tried to make it look like an accident. These killers were less lucky. A jury of nine men and three women returned a verdict of wilful murder. The trial judge who called the deed “an act of unparalleled evil and barbarity” said the boys were “cunning and very wicked” and should spend “very, very many years” in confinement. They became the youngest convicted murderers
in modern English
None of the four killers, aged eight and ten, can be compared to a youth of nearly 18 accused of rape, brutal violence and murder, and who, if media reports be right, was the ringleader in the vicious attack on a defenceless girl. But there is one similarity. According to an old saying “when the world was made the rubbish was sent to Stockport” which Friedrich Engels described as “truly revolting”. The rural squalor of Badaun village in Uttar Pradesh or the dark lanes, communal taps and stinking sewers of Delhi’s Ravidas Camp may be similar.
But if eight year olds can have the “capacity to commit” murder and be capable of “judging between good and evil”, so can a man of nearly 18. As the Stockport coroner wisely put it all those years ago, it isn’t age that counts but “strength of understanding and judgment”. The latter establishes the true “capacity to do evil or contract guilt”. Recognising this, France and some American states have tried minors in ordinary courts under normal laws if the crime is serious enough.
The Stockport and Liverpool trials were also conducted like adult trials. The judge addressed the Stockport eight year olds as “prisoners at the bar.” The ten-year-old Liverpuddlians sat on raised chairs so that they could see — and be seen — above the high dock railing. The judge disclosed their names to the media which also received police mug shots of the boys.
The sentences and aftermath are irrelevant. What matters is that prosecution counsel successfully rebutted the principle of doli incapax, which presumes the young are not legally responsible for their actions. That plea is like the definition of the Yiddish word “chutzpah” as a boy killing his parents and then throwing himself on the court’s mercy as an orphan.

The writer is a senior journalist, columnist and author

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