The Bulger Legacy

Abigail Culank evaluates the after-effects of the Bulger trial on domestic and EU law concerning children on trial

As news of the abduction and murder of the toddler James Bulger began to break in February 1993, shock waves reverberated across the country. The public’s moral outrage was exacerbated by the media frenzy following the revelation that two ten-year-old boys were responsible. The boys were tried at Preston Crown Court and were found guilty of murder.

The judicial decisions that have been taken on the boys’ subsequent appearances in court have had a far-reaching effect on the way juveniles accused of serious crimes are tried by the English criminal justice system.

Youth Trials

The age of criminal responsibility in England and Wales is ten. At the time of the Bulger trial, doli incapax (or the presumption that children under the age of 14 were incapable of committing crime) applied. As such, it was the responsibility of the prosecution to prove to the criminal standard that young defendants had committed the act for which they were charged in the knowledge that it was seriously wrong as opposed to an act of mere naughtiness or childish mischief. That presumption was abolished for offences committed after 30 September 1998 by the Crime and Disorder Act 1998.

Normally, children are tried in youth courts: the atmosphere here is more relaxed and informal and the general public is excluded. However, where the charge is murder, manslaughter, or if the offence were punishable by a minimum of 14 years’ imprisonment if committed by an adult, the child will be tried in Crown Court before a judge and jury. As this was the case in the Bulger trial, the boys were tried in an adult court.

Because both were only 11 years old by this time, some concessions were made during the 17-day trial. The dock was raised so that both defendants could be seen by judge and jury; the court day was reduced to school hours; a ten-minute break was taken every hour; access to a play room was granted; and contact with parents and social workers was permitted during each adjournment. The process of the trial itself was explained to the boys and they were also taken to see the courtroom beforehand.

However, the judge and counsel still wore wigs and gowns during the trial, and many felt that the raised dock isolated the boys from their families, whom they were not actually able to see from the dock.Both defendants also had to contend with the attendant publicity surrounding the trial (the press benches and public gallery were full throughout the trial), which led to hostile public scenes on their arrival at court each day.

The boys complained to the European Court of Human Rights that the very nature of a public trial in adult court breached their right to a fair trial under Art.6 of the European Convention on Human Rights. They argued that they had been severely intimidated by the proceedings, had been unable to follow what was happening and had been unable to take decisions in their own best interests.

The European Court of Human Rights concluded that Art.6 guaranteed the right of the accused to participate effectively in their own criminal trial and it was felt that, in this instance, this guarantee had not been satisfied. Although the defendants’ legal representatives had been seated near them during the trial, it was felt unlikely that the boys would have felt sufficiently at ease, in the tense atmosphere of an adult courtroom and under close public scrutiny, to have conferred with their counsel freely during the trial. Given the boys’ immaturity and disturbed emotional state, it was also highly unlikely that they would have been capable of cooperating with their lawyers and giving them information for the purposes of their defence outside the courtroom. The European Court of Human Rights therefore concluded that the boys were not able to participate effectively in the criminal proceedings and had been denied a fair hearing in breach of Art.6.

The Lord Chief Justice responded by issuing a practice direction on the conduct of Crown Court trials of children and young persons on 16 February 2000. This specified that all possible steps should be taken to help young defendants understand and participate in the proceedings, including: all participants should be on the same level; young defendants should sit with family members in a place where they can easily communicate with legal representatives; language that the young defendant could easily understand should be used; and wigs and gowns should not be worn. As a result of this practice direction, Crown Court trials of young defendants should no longer fall foul of the criticisms that were raised following the Bulger trial.

Tariffs

The boys were sentenced to the youth equivalent of the mandatory life sentence – a minimum of eight years (the ‘tariff’ period). The Lord Chief Justice recommended that the tariff be set at ten years, however, responsibility for tariff-setting ultimately lay with the Home Secretary, who imposed a tariff of 15 years for each boy in view of the need to maintain confidence in the justice system. In the run-up to the trial, the Home Secretary had received a petition with 278,300 signatures plus 4,400 letters from the public urging him to consider never releasing the boys.

The tariff approach involves breaking a sentence down into its component parts, namely retribution, deterrence and protection of the public. The ‘tariff’ represents the minimum period to be served in order to satisfy the requirements of retribution and deterrence. Cases will not be referred to the parole board until three years before the expiry of the tariff period. No prisoner will be released on licence until the tariff period has been completed.

The boys instituted judicial review proceedings challenging the tariff set by the Home Secretary. On 2 May 1996 the Divisional Court held upheld part of the boys’ claims and on 30 July 1996 the Court of Appeal dismissed the Home Secretary’s appeal. In the following month [12 June] a House of Lords majority found that it was unlawful for the Home Secretary to adopt a policy that treated as irrelevant the progress and development of a detained child – even under exceptional circumstances. It was also held that, in fixing a tariff the Home Secretary was exercising a power equivalent to a judge’s sentencing power and, as such, he was required to remain detached from the pressure of public opinion. Since the Home Secretary had misdirected himself by giving weight to public protests about the level of the boys’ tariffs and had acted in a procedurally unfair way, his decision had been rendered unlawful. Home Secretary’s tariff was accordingly quashed.

The boys also argued that their rights under Art.6 of the Convention had been violated by the fact that a government minister had set their tariff, as opposed to a judge. Since the fixing of the tariff amounted to a sentencing exercise, it had to comply with Art.6(1) of the Convention, guaranteeing a hearing by an independent and impartial tribunal. The European Court of Human Rights held that in this context the tribunal had to be independent of the parties and of the executive.

The Home Secretary was not independent of the executive and so Art.6(1) had been breached. The European Court also held that there had been a violation of Art.5(4), the right to liberty and security, because the boys had been deprived of the opportunity to have the lawfulness of their detention reviewed by a judicial body since their conviction.

The Lord Chief Justice responded to the European ruling by issuing a practice statement that set out that legislation would be passed so that appealable tariffs for young defendants would be set in open court. Significantly, he also agreed to undertake a review of tariffs imposed in existing cases. As a result, the boys’ tariff was reset at just under eight years in recognition of the progress they had made whilst in detention. The Lord Chief Justice also maintained that while it was appropriate to take into account the effect of a crime on the victim’s family when considering the length of the tariff in relation to punishment and deterrence, the victim’s family should not be able to make submissions on the tariff period.

Ralph Bulger, James’s father, sought permission to judicially review the Lord Chief Justice’s decision. The Divisional Court held that Mr Bulger had no standing to challenge the new tariff, which was not flawed because the Lord Chief Justice had correctly taken into account matters of rehabilitation known at the date the tariff was fixed relating to the period after the trial.

The European Court of Human Rights drew a distinction between the mandatory life sentence imposed on adults convicted of murder, which constitutes a punishment for life, and the sentence of detention during Her Majesty’s pleasure, which is open-ended. However, two domestic cases have attempted to argue that, by analogy with the Bulger case, it is a breach of Art.6 of the Convention for the Home Secretary to set the tariff period for a mandatory life sentence. This matter is currently pending before the European Court of Human Rights.

The Right to Privacy

The media is automatically prohibited from reporting a child’s name or personal details where that child is tried in the youth court, although the court has a discretion to dispense with the restriction after conviction if it is in the public interest to do so. However, there is no such restriction on the reporting of children being tried in Crown Court unless the trial judge actually makes such an order.

Although the judge did prevent the media from reporting details of the defendants during the course of the Bulger trial, following the precedent set in the trial of the infamous child murderer Mary Bell in December 1968, the judge allowed publication of the boys’ names once they had been convicted. The following day the boys’ names, photographs and other details were widely published in the media. The judge therefore granted an injunction restraining publication of the boys’ addresses or any other information that could lead to the discovery of their whereabouts, care or treatment. That injunction stayed in force, but as the boys approached their 18th birthdays, three large news groups asked the High Court to clarify what would happen to the injunction when the boys became adults in the eyes of the law. The boys then applied for the court to provide indefinite injunctive relief to restrain publication of any information that could reveal their new identities.

There was no precedent in English law for the court to impose a blanket ban on publication to protect an adult. Although injunctive relief had been imposed to prevent Mary Bell’s identification, that injunction had been granted to protect her daughter, who was a minor and a ward of court.

The High Court had to balance the competing rights of privacy and freedom of expression and found that in this exceptional case, where the boys would be seriously at risk of injury or death should their identities or whereabouts be revealed, the court could indeed grant injunctions to ensure their protection. Applying the right to life enshrined in Art.2 of the Convention, the court granted injunctions to restrain the media from disclosing information that could lead to their identification.

The injunctions were subsequently amended so that internet service providers would not be in breach of the injunction if contemptuous material was posted on web pages as long as all reasonable steps had been taken to prevent publication of prohibited material.

The first breach of the injunction came before the courts recently when a Manchester newspaper published information likely to lead to the identification of the boys’ whereabouts, even though this was freely available through government department websites or publications. The court held that the information was unlikely to be available to the general public not engaged in statistics or research and was difficult to interpret in its form on the government websites. The newspaper was fined 30,000 for contempt – a stern warning to other media groups.

Conclusion

Following the Bulger trial, the European Court of Human Rights has played a pivotal role in changing the face of juvenile justice in England and Wales. Children tried in Crown Court for serious crimes will no longer be the public spectacle that the boys in the Bulger trial became. Children will benefit from more protection whilst on trial, with the primary focus now being on their understanding of, and participation in, the trial. The tariff system itself has also been substantially reformed, which may also have an impact on mandatory life prisoners. Finally, and perhaps most significantly, the right to privacy has now been enshrined in the domestic law as a direct result of this case.

Casebook

R v Secretary of State for the Home Department, ex parte (1) Venables (2) Thompson sub nom Secretary of State for the Home Department v (1) V (A Minor) (2) T (A Minor) (1997), HL, LTL 13/6/97

The House of Lords decision on the lawfulness of the tariff set by the Home Secretary. David Pannick QC and Mark Shaw of Blackstone Chambers instructed by the Treasury Solicitor for the Home Secretary. Edward Fitzgerald QC of Doughty Street Chambers and Ben Emmerson of Matrix Chambers instructed by Graysons (Sheffield) for Venables. Brian Higgs QC of 5 King’s Bench Walk and Julian Nutter of 3 Athol Street (Isle of Man) instructed by Paul Rooney & Co (Liverpool) for Thompson.

T v United Kingdom : V v United Kingdom (1999), ECHR, LTL 16/12/99

The European Court of Justice decision that the young defendants did not have a fair trial because of the nature of the trial process and the setting of their tariffs by a government minister rather than a judge. David Pannick QC and Mark Shaw of Blackstone Chambers for the Home Secretary. Edward Fitzgerald QC QC of Doughty Street Chambers and Ben Emmerson of Matrix Chambers for Venables. Brian Higgs QC of 5 King’s Bench Walk and Julian Nutter of 3 Athol Street (Isle of Man) for Thompson. Mr R Makin, solicitor, for Mr Bulger. Mr S Sexton, solicitor, for Mrs Fergus.

R v Secretary of State for the Home Department, ex parte (1) Venables (2) Thompson sub nom Secretary of State for the Home Department v (1) V (A Minor) (2) T (A Minor) (2000), CA, LTL 26/10/2000

The Lord Chief Justice’s decision to set the tariff at just under eight years. Lloyd Lee Dures, solicitors, for Thompson. Bhatt Murphy, solicitors, for Venables.

R v (1) Secretary of State for the Home Department (2) Lord Chief Justice of England & Wales, ex parte Ralph Bulger (2001), DC, LTL 7/3/2001

Ralph Bulger’s unsuccessful application for permission to judicially review the tariff set by the Lord Chief Justice. Alan Newman QC and Hugo Keith of 3 Raymond Buildings and Robin Makin instructed by E Rex Makin & Co (Liverpool) for Ralph Bulger. David Pannick QC and Mark Shaw of Blackstone Chambers instructed by the Treasury Solicitor for the Home Secretary. Philip Sales of 11 King’s Bench Walk instructed by the Treasury Solicitor for the Lord Chief Justice. Edward Fitzgerald QC of Doughty Street Chambers instructed by Bhatt Murphy for Venables. Brian Higgs QC and Julian Nutter instructed by Lloyd Lee Dures (Netherton) for Thompson.

(1) Venables (2) Thompson v (1) News Group Newpapers Ltd (2) Associated Newspapers Ltd (3) MGN Ltd (2001), Fam, LTL 8/1/2001

The granting of injunctions to protect the identity and whereabouts of the convicted murderers. Edward Fitzgerald QC of Doughty Street Chambers and Ben Emmerson QC of Matrix Chambers instructed by Bhatt Murphy for Venables. Brian Higgs QC and Julian Nutter instructed by Lloyd Lee Dures (Netherton) for Thompson. Desmond Browne QC and Adam Wolanski of 5 Raymond Buildings instructed by Farrer & Co for the news groups. Gordon Murdoch QC and Marcus Scott-Manderson of 4 Paper Buildings for the Official Solicitor. Andrew Caldecott QC and Stephen Suttle of 1 Brick Court for the Attorney-General. Mark Shaw of Blackstone Chambers for the Treasury Solicitor.

(1) Venables (2) Thompson v (1) News Group International (2) Associated Newspapers Ltd (3) MGN Ltd & HM Attorney-General : HM Attorney-General v Greater Manchester Newspapers Ltd (2001), QBD, LTL 4/12/2001

The decision finding the defendants in breach of the injunction granted to protected the identities and whereabouts of the convicted murderers. Andrew Caldecott QC and Stephen Suttle of 1 Brick Court instructed by the Treasury Solicitor for the Attorney-General. Desmond Browne QC and Jacob Dean of 5 Raymond Buildings instructed by Cobbetts (Manchester) for the defendants.