Child's Play

One issue which arose out of the recent appalling murder of Zainab Kalokoh, 33, shot during a robbery at the christening party in south London, was how and in what circumstances the inferences as to a defendant's age should be drawn .

Teenagers?

Amongst the gang were certain so-called "teenagers". However not everyone was convinced that they were giving the correct ages. Detective Chief Inspector Adnan Qureshi told reporters he believed certain defendants could have been lying about their ages. The effect being that they received more lenient juvenile sentences instead of the longer sentences that they would have received as adults.

Dubious circumstances

There were a number of circumstances strongly pointing to the fact that certain defendants, two brothers, were older. One who suggested he was 17 had two children, one aged three. Two brothers with substantial criminal convictions had, if their alleged ages were correct, started their serious criminal career at the ages of 12 and 10. The police believed their lifestyles indicated that they were rather older than they alleged.

'Fake' birth certificates

Their "birth certificates" were almost certainly fake Nigerian birth certificates. A police inspection of the documents suggested that the same person had written them. Moreover their serial numbers were consecutive or nearly consecutive. For brothers with a two-year age gap. There seems little doubt therefore that the birth certificates were worthless.

Nonetheless the police said they had no power to force defendants to take dental tests to indicate age, and the defendants declined to have such tests. Although such tests are not ones which can always indicate age with precision, they would have been a useful guide.

Flawed procedure

Absent any firm details the ages were taken as being those that the defendants said they were. As a procedure, that is about as sensible as relying on a defendant to be the one to inform the court whether or not he has previous convictions. Virtually any convicted defendant given half a chance would do or say anything in an attempt to receive a lighter sentence. It would be abandoning commonsense to suppose anything different.

The courts, including the criminal justice system of this country, have much to be proud of. However occasional anomalies risk erroneously bringing the whole system into disrepute.

Defendants should furnish proof

I think the position is rather simpler than introducing powers to allow intrusive examinations. The starting point would be that an offender be treated as an adult unless there were cogent proof that he was not. That should be the position, not just in criminal charges, but in the law generally. Of course in most cases the proof is readily available. Where there is doubt however it should be for the defendants to furnish proof. Of course the court must give them every opportunity. No doubt those who are genuinely under 18 will be all too keen to submit themselves to any necessary examinations in order to establish the fact. However, if the law placed the onus on the defendants from the start then it would be well placed to deal with the consequences of a failure to take tests. This would make it unnecessary for the law to put the courts in the position of ordering tests to be taken, or giving the police coercive powers to undertake them.

Bad enough that the victims and their families feel a sense of injustice that the defendants may not have been sentenced as heavily as they should be. Even worse that serious criminals get the impression that there are real benefits to be gained from misleading the court. Court procedures should always lean strongly against that ever giving a defendant an advantage.

Michael J. Booth QC