ECHR Judgment: Thompson and Venables

– in the House of Lords at 12:45 pm on 16 December 1999.

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Photo of Lord Burlison Lord Burlison Government Whip 12:45, 16 December 1999

My Lords, before we move to the Statement on the judgment of the European Court of Human Rights in the case of Thompson and Venables, I should like to take the opportunity to remind the House that the Companion indicates that the discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 1:00, 16 December 1999

My Lords, with the leave of the House, I should like to repeat a Statement which has been made in another place by my right honourable friend the Home Secretary. The Statement is as follows:

"Madam Speaker, this morning the European Court of Human Rights announced its judgment in the case brought against the UK Government by Robert Thompson and Jon Venables. A copy of the judgment has been placed in the Library. These two youths were responsible for the appalling murder of James Bulger in Liverpool in February 1993. The whole House and the country has the deepest sympathy for James's parents. As Lord Reed, one of the court judges, said,

'The grief of James Bulgers' parents, who took part in the proceedings before the Court, is inexpressible. The fact that [those responsible] ... were themselves only ten years old at the time of the murder makes it particularly disturbing'.

"The authority of the European Court of Human Rights derives from our membership of the Council of Europe. The Council of Europe was established after the war on the initiative of the allies, especially the United Kingdom. It now has 41 nations in membership. The Council of Europe predates the European Union, and is wholly separate from it.

"The European Convention on Human Rights is a convention of the Council of Europe, and the Court of Human Rights is one of its principal institutions. It was British jurists who played a leading role in drafting the convention. The United Kingdom was the first nation to ratify it in 1951. Successive United Kingdom governments ever since have consistently abided by the decisions of the Court, introducing amending legislation where necessary.

"In the case which Robert Thompson and Jon Venables brought before the Strasbourg Court, the two youths essentially argued that facing trial in a Crown Court and having their tariff set by the Home Secretary were inappropriate given their ages. They claimed that these arrangements breached Articles 3, 5, 6 and 14 relating to powers of detention and the right to a fair trial. They were 11 at the time of conviction and are now 17.

"The House will understand that I have had only a short time to read the judgment, but the key findings are as follows. There were no violations of the European Convention on Human Rights in respect of Article 3--the right not to be subjected to inhuman and degrading treatment or punishment--in respect of both trial and sentence. In particular, the Court held as lawful the age of 10 as the age of criminal responsibility in England and Wales. They were also of the view that the particular features of the trial process did not cause to a significant degree suffering going beyond that which would inevitably have been engendered by any attempt by the authorities to deal with the applicants.

"With regard to Article 5(1)--the right to liberty--the Court held that the sentence of detention at Her Majesty's pleasure was clearly lawful under English law and was not arbitrary. There had not, therefore, been any violation of Article 5(1).

"The Court did find violations in respect of Article 6(1), the right to a fair trial, and under Articles 6(1) and 5(4) relating to the setting of the tariffs and their continued review.

"In relation to Article 6(1), the right to a fair trial, the Court found that, notwithstanding the special arrangements which had been made to help ensure that the youths could properly participate in the trial process in the Crown Court, it was highly unlikely that either applicant would have felt sufficiently uninhibited, in the tense court room and under public scrutiny, to have consulted with their legal representatives during the trial or, indeed, that, given their immaturity and disturbed emotional state, they would have been capable outside the court room of co-operating with their lawyers and giving them information for the purposes of their defence. It followed that the applicants had been denied a fair hearing in breach of Article 6(1).

"With regard to the setting of tariffs and their continued review, the Court first held that there was a fundamental distinction between the sentence for murder in respect of juveniles and that for murder in respect of adults. So far as the latter is concerned--the sentence for adults--in an earlier judgment (Wynne 1994) the European Court had accepted the lawfulness of the mandatory life sentence for adults convicted of murder and the arrangements for tariff-setting by the Secretary of State. Today's judgment does not deal with the arrangements for those adults who have been or will be convicted of murder in the courts of England and Wales. However, in this case involving juveniles, the European Court followed a decision of the House of Lords Judicial Committee that the setting of tariffs for juveniles was itself a sentencing exercise. Since the Home Secretary, who set the applicants' tariffs, was clearly not independent of the Executive, there had been a breach of Article 6(1) in respect of the determination of the applicants' tariffs.

"In relation to Article 5(4), the Court held that because the applicants' tariffs had been decided upon by the Home Secretary, there had been no judicial supervision incorporated in the initial fixing of their sentences. The Court therefore found a violation of Article 5(4), based on the lack of any opportunity for them to have the lawfulness of their detention assessed by a judicial body.

"In summary, the Court has found in favour of the United Kingdom Government on two important issues. Those are that Robert Thompson and Jon Venables were never subjected to inhumane or degrading treatment by the Government; and that the sentences imposed by the court were not inconsistent with the requirements of the Convention.

"But it has found against the United Kingdom on issues relating to the trial process: the way in which the tariff linked to their sentence was set; and the failure subsequently to review the tariff.

"This judgment does not overturn the verdict of murder in this case, nor does it in any way exonerate the two youths for their part in this terrible crime. This judgment does not direct their release from custody. The Parole Board remains responsible for deciding release in these cases.

"As with any decision of the Court, Her Majesty's Government accept its judgment. However, in all, the judgment ran to 120 pages. It is important that we proceed as expeditiously as possible but with care. The House will understand that I need to study the detail of what the court has said, and fully to consider its implications. I shall report the outcome of my considerations to Parliament as soon as possible. It will, of course, be for Parliament to agree any change in the legislative framework for dealing with juvenile offenders in these circumstances.

"The appalling murder of James Bulger, a two year-old murdered by two 10 year-olds, profoundly shocked the country and continues to do so. But the real agony is that felt by James's parents. It is they who have endured and will continue to endure the profound grief of losing their son, a fact which nothing can ever repair".

My Lords, that concludes the Statement.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 1:08, 16 December 1999

My Lords, first, I thank the Minister for repeating the Statement which his right honourable friend made in another place. I agree entirely with what the Home Secretary said in sympathy to the Bulger family and in horror at the crime which lies behind this. Clearly, like the Home Office, we shall all need time to study this long and complex judgment and its consequences.

In relation to the apparent breach of Article 6(1), it is difficult to see precisely what the court would have thought a fair trial to be in those circumstances in view of what is said about the immaturity and disturbed emotional state of the accused in the trial. In any case, it seems that the verdict of the court in this country has not been called into question.

Secondly, will the Minister confirm that he agrees with me that it seems difficult to see that there is quite such a fundamental difference as the European Court suggests between the sentence that someone is detained at Her Majesty's pleasure for juveniles and the life sentence subject to release on licence for adults. Much play was made of that difference which, it seems to me, is difficult to support.

Lastly, as regards the alleged breach of Article 5(4), as I understand it, the Home Secretary did not set a new tariff after the case in the Appellate Committee in 1997 at least in part because he was waiting to see what would be said in this judgment. Yet now the judgment states that the lack of the setting of a tariff at that stage was a violation because if the Home Secretary had set a tariff then it would have been subject to judicial review and would therefore have been correct or proper in accordance with the convention in those circumstances.

That rather circular type of argument emphasises the difficulties brought about by the delay involved in very long proceedings and different jurisdictions. That can only add to the distress of the Bulger family and those on that side of the case and can only make it more difficult for the offenders to come to terms with what happened and what they did all those years ago. Such delay, which is involved because of the different jurisdictions, is causing increasing worry in relation to the working of the criminal justice system.

Photo of Lord McNally Lord McNally Liberal Democrat 1:15, 16 December 1999

My Lords, is the Minister aware that the BBC Ceefax headline reads:

"Bulger's killers' trial judged unfair"?

It should be made clear to the man and woman in the street that there is no question that this judgment seeks to overturn the central guilty verdict of the original trial. Therefore, the paragraph in the Statement that the judgment does not overturn the verdict of murder in this case nor in any way exonerate the two youths from their part in this terrible crime is one to make very clear, given the shorthand that our popular press is given to using.

As the Home Secretary said in another place, it was an appalling murder and the grief of James Bulger's parents must be truly inexpressible. I take up a point made by the noble Lord, Lord Cope, although I do not perhaps follow exactly his logic. I welcome the way in which the European Convention on Human Rights has worked and I am pleased that the Government, with our support, have brought it into the body of British law, which may deal with some of the delays to which the noble Lord, Lord Cope, was pointing.

Although we must undertake a thorough study of the judgment, there are already some clear pointers. The system of trial for children is a difficult one which must be thought through. Taking the politicians out of sentencing is clearly a matter of some urgency. One only has to look at the recent publicity about the politicising of the final decision to hang Ruth Ellis to realise that political judgment and justice do not necessarily go hand in hand. I believe that the court is well-founded in pointing us in that direction.

Therefore, we want a thorough review. But we want also an appropriate consideration in relation to when those two boys should be released. It will be one of the most difficult and testing judgments our system has faced. I suggest that both boys should be subjected to the most thorough psychiatric examination before there is any consideration of their release. I could not go along with what were reported to be the remarks of Sir David Ramsbotham a few weeks ago that we all do things at the age of nine that we subsequently regret. I go back to the true horror of this appalling murder and feel that we must be absolutely certain that those young men are fit to re-enter society. But that must be a proper judgment, free from political interference.

With that, I hope, will go a clear warning to our popular press in particular that cheque-book journalism and muddying the waters while those judgments are made is unacceptable. We should remember that one of the complaints made to the European Court was that the behaviour of the media at the time of the trial made a fair trial almost impossible.

Finally, there is need now--one hopes to God that it is taking place--for the most careful planning between probation, education, social and other services so that when those boys are released, there is the most careful supervision, providing the best possible chance for their rehabilitation. With that, I hope, goes the most serious warning to the press about their behaviour as that process gets under way.

I have every sympathy for Home Office Ministers at this time. This is the most difficult of difficult cases. It tests our system of justice; our capacity truly to rehabilitate. And it tests the responsibility of the press and the strength of the press code. I have a son who is the age that James Bulger would be now. We are all haunted by the video of a little boy being led to his death. What faces us now is how we give justice to him in death and also give some justice to the two boys, with their lives ahead of them, who deprived him of his.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 1:18, 16 December 1999

My Lords, both noble Lords have spoken with considerable wisdom. I, too, am a parent. I, too, have a child of the age that James Bulger would be were he alive today. Like everyone else in the country, I was appalled and horrified by the crime, as I continue to be.

More than anything else, today is a day for reflection, thought and mature consideration. We, as Ministers, and in particular my right honourable friend the Home Secretary, will consider extremely carefully the 120 pages of judgment handed down to us for our consideration.

Your Lordships have asked important questions. They are precisely the questions on which we must focus. I shall try to respond to some of the points raised. The noble Lord, Lord Cope, asked what changes we intend to make to the whole process. That puts a finger on the key question. We shall have to take very careful account of what was said about the trial process. That was part of the judgment to which it is most important for us to give careful consideration. The noble Lord, Lord Cope, also asked about the difference between the process for dealing with adult and child murderers. In this matter the difference appears to be the indeterminate nature of detention at Her Majesty's pleasure as opposed to the mandatory and determinate life sentence for adult murderers. Clearly, that is a matter we must carefully consider in respect of juveniles.

The noble Lord, Lord McNally, made a number of important and telling points; not least the way in which these matters are reported. The trial judgment is important here, but the sentence of guilt has gone unquestioned and that has to be absolutely right. There can be no question of that. We need constantly to remind people that our courts have not been seen to fail in that regard. The noble Lord made his familiar points about reporting: the scandal of chequebook journalism and the way in which that can overshadow the importance of a rehabilitative regime for those who are ultimately released following expiry of their sentence.

He made a neat point about politicians and sentencing. In a sense, particularly with juveniles, that comes close to the heart of the some of the issues we will have to unravel and consider in future. Apart from that we need carefully to consider our next moves and take on board carefully the important comments made during the course of considerations here and in another place.

Photo of The Earl of Longford The Earl of Longford Labour

My Lords, I share the profound sympathy for the parents of a murdered boy and the horror we must all feel at the crime. Is the Minister aware that, according to the best evidence, these two boys have made excellent progress? Sir David Ramsbotham, Chief Inspector of Prisons, whose opinion is about the best we could come across, spoke of one of the two boys. I have very good evidence about the other. Is the Minister aware that they have both made excellent progress?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, the noble Earl raises a useful consideration. It may well be the case that they have made good progress. Clearly, that is a matter that the Parole Board will have to consider. No doubt it will be taken carefully into account. However, that does not alter the fact that they were responsible for the appalling murder of a very small child. I do not think that anybody would wish to forget that fact.

Photo of Lord Kirkhill Lord Kirkhill Labour

My Lords, would I be right in assuming that the judgment emanates from a chamber of the Court? If I am right in that assumption, can the Minister tell me the names of the judges involved and the countries they represented?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, as I am sure the noble Lord will appreciate, I am not able to reel off the names. However, they are all in the judgment which, as I have indicated, will be placed in the Library of the House.

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

My Lords, as noble Lords have said, no one under-estimates the seriousness of the crime. Our sympathy must obviously go to the family. I agree with the Minister that today is a day of reflection and thoughts. However, does he not agree that such thought process should take into account that it is of paramount importance that sentences should be set by judicial process and not by politicians? Does he not also agree that one of the fundamental aspects of the report in which we are found to be at fault is that the process of juvenile justice was not observed in this case? The convention is absolutely clear. Could we have some indication from the Minister that the youth court aspect of justice is important and should be followed in future trials of this nature?

Finally, does the Minister not agree with the noble Earl, Lord Longford, that we should have clear criteria to determine how we treat young prisoners when they have shown significant alteration in maturity?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, the noble Lord has done no more than reiterate points in the judgment and points I made in response. We need to be clear that the Court did not say that it is inappropriate for these matters to be considered in a Crown Court. It did not make that comment. It did, however, pass comment on the process. Obviously, that is a matter which we shall have to consider further. We must take on board the very real concerns expressed. The noble Earl, Lord Longford, raised the issue of the way in which people behave while undergoing a sentence of this nature. That will be considered by the Parole Board when it properly comes to consider how and when these two boys might be released.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I associate myself with the expressions of sympathy to the family which have been appropriately expressed in this House. I do not wish to comment or ask questions on the trial process, which is an important subject. The finding that we have denied two young boys a fair trial means that we must consider the matter in depth.

However, I want to raise questions about the sentencing exercise. Her Majesty's Government will no doubt readily accept that cases involving discretionary life sentences--for instance a sentence imposed on someone who has killed somebody but in doing so was suffering from diminished responsibility; someone who has killed somebody but has done so by reason of provocation; and manslaughter--are often far more serious than the domestic murder case. Her Majesty's Government will no doubt recall that some years ago the Home Secretary had removed from him by process of judicial decision any part for the Home Secretary to play in the sentencing exercise in relation to the discretionary life sentence.

Her Majesty's Government will now have to accept that the sentencing exercise in relation to children who have been detained during Her Majesty's pleasure is equally a case in which a politician has no function to perform.

Finally, Her Majesty's Government will no doubt remember the observation made by the Home Affairs Select Committee about two years ago when it considered the mandatory life sentence. The committee concluded that the mandatory life sentence should stay where it is at present but that the amount of time the defendant should stay in prison was to be the subject matter of a judicial discretion and not a politician's discretion. The committee recommended, therefore, that the Home Secretary ceased to play any part.

In the light of what I have asked the Minister to recall, does he not accept that it is high time that the Home Secretary conceded that in any sentencing exercise he has no part to play and should not strive to act in a judicial capacity? Does he also accept that this is one of the subjects which should receive consideration by Lord Justice Auld who was recently appointed to chair a commission on a wide-ranging series of subjects connected with the criminal trial process?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, the noble and learned Lord speaks with far greater knowledge and wisdom on these matters than I can ever expect to match. We shall obviously take careful account of his comments. Of course we shall wish to consider these matters as carefully and as quickly as we possibly can. No doubt my right honourable friend the Home Secretary will wish to consult with Lord Justice Auld, as has been suggested. But these are complex matters. They require time for reflection. The role of politicians in the setting of sentences is clearly one for debate and further consideration. That is probably the best place to leave the matter.

Photo of Lord Richard Lord Richard Labour

My Lords, perhaps I can raise a practical point. I wish to associate myself with everything that has been said about the crime, about those who committed it and indeed about the parents. But what happens now to the length of time the young men spend in prison? Does the sentence go back to the eight years the trial judge thought was appropriate? Does it revert to the 10 years the Court of Appeal felt was appropriate? Or does it stay at 15 years, which the Court of Human Rights declared to be illegal?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, that is precisely why we need to study the judgment carefully. Of course the Home Secretary will have to review the matter. That much is clear from what has been said and understood so far from the judgment.

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

My Lords, perhaps I can raise a point on the issue of reporting this decision which was raised by the noble Lord, Lord McNally. Before coming into the Chamber this afternoon I had a look at the tapes. They report one of the solicitors for one of the defendants saying that he was "pleased" with the decision. He went on to say,

"It is a very sad case but I think the decision is correct".

The other solicitor is reported as saying,

"Obviously I am pleased that we have won".

I do not believe that such expressions will strike a chord in any part of the House. In considering the implications of this case, will the Minister be prepared to discuss with his right honourable friend the Home Secretary, and indeed with his noble and learned friend the Attorney-General who is in his place today, whether some encouragement might be given to the Law Society and other professional organisations which have responsibility for lawyers, to get across the message that, in representing parties in these sensitive proceedings, their job is to represent them in court and not to make statements to the media which may well be selectively quoted from and add insult to injury as far as the relatives of the deceased are concerned?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, the noble and learned Lord makes an important point. Clearly the Government cannot direct lawyers representing their clients as to what they may or may not say. However, I fully sympathise with the point being made. Today is a day for mature reflection. Everything people say publicly about this matter should be carefully thought through. Our thoughts and sympathies should rest with the Bulger family. We, as politicians, need to go away, collect our thoughts, carefully study the judgment and then come back with practical, reasonable and pragmatic solutions for what is clearly a difficult set of issues.

Photo of Lord Harris of Greenwich Lord Harris of Greenwich Liberal Democrat Lords Chief Whip

My Lords, perhaps I can ask a question arising from the question put to the Minister by his noble friend Lord Richard. Does he agree that it is important to obtain a clear statement as soon as possible as to what the length of the sentence will now be in relation to these two young men? We cannot leave this matter for months. Which sentence now applies? It may be helpful if a clear statement could be made in that regard soon after the Christmas Recess.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, we will want to conclude this matter as quickly as we can. The noble Lord puts his finger back on the precise point raised by my noble friend Lord Richard. It is an issue to which we shall have to return as quickly as we can. It is in no one's interest that these matters are left hanging over.

Photo of Lord Monson Lord Monson Crossbench

My Lords, I want to revert to one of the points raised by my noble friend Lord Ackner. It would appear from the Statement that the European Court of Human Rights has, in effect, made it illegal for any Home Secretary in the future to alter any life sentence tariff recommended by any trial judge whenever the person convicted is under the age of 18. But does the ruling go further than that by effectively outlawing the judicial setting of any tariff where the under-18s are concerned?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, again I need to remind the House that we need time to study this judgment with great care. The point the noble Lord makes is important. But we need time to reflect on the issues raised in the judgment and see properly where our responsibilities lie in the future. We need to be given that time and I am sure that we will come back to the House and provide answers to the questions that have properly been raised during this short debate.

Photo of Lord Jopling Lord Jopling Conservative

My Lords, leaving aside the details of the judgment which we understand the Minister is unwilling to enlarge on at this stage, does a judgment of this sort open the way for the lawyers who acted on behalf of the two young boys in this case to go for large sums of money in compensation?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, I do not believe that to be the case. I hope it is not the case in the future. It is certainly not the case in this matter.