Thatcher's Grandchildren?

Politics and Childhood in the Twenty-First Century

Stephen Wagg, Jane Pilcher

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137281555
• Topic: Geschichte
• Subtopic: Britische Geschichte

Thatcher's Grandchildren explores sociological and political issues about childhood that have that have become increasingly significant in the twenty first century within a political landscape framed by neo-liberalism. Issues addressed include child protection and abuse, the media, education and schooling, and poverty.

1

‘Kill a kid and get a house’

Rationality versus Retribution in the Case of Robert Thompson and Jon Venables, 1993–2001

Julian Petley

Introduction

On 24 November 1993, at the conclusion of the trial of Robert Thompson and Jon Venables for the murder of James Bulger, Mr Justice Morland sentenced them to be detained at Her Majesty’s pleasure, the child’s equivalent of a mandatory life sentence for murder. He stated that they would ‘be detained for very, very many years until the Home Secretary is satisfied that you have matured and are fully rehabilitated and are no longer a danger to others’. On 29 November he submitted to the Home Secretary, Michael Howard, his assessment of the ‘tariff’ (the proportion of the sentence that reflects retribution and deterrence, as opposed to the protective element of the sentence that reflects the risk posed by the offender to society). This he set at eight years, to be reviewed after five. He sent his recommendation to the Lord Chief Justice, Lord Taylor of Gosforth, who ordered that the boys should serve a minimum of ten years, with review at seven. Both agreed that the boys would not serve the latter part of their sentence in an adult prison, mainly to avoid revenge attacks. Under the system then in operation for mandatory adult life sentences, he then passed his recommendation to Howard for a final ruling.

In many quarters, not least in large sections of the British press, there was considerable surprise, not to say anger and disappointment, at the length of the original tariff. According to David James Smith (1995: 244), the ranks of the angry and disappointed included Howard himself, who had been considering a tariff of 20 to 25 years. In January 1994 Lord Taylor’s recommendations were passed to the boys in confidence, but they became public, and the Bulger family immediately launched a campaign to persuade Howard that they should never be released. This was supported vociferously by the tabloid press, and in particular by the Sun, which published a coupon that read: ‘I agree with Ralph and Denise Bulger that the two boys who killed their son James should stay in jail for LIFE’, and over 21,281 of these were sent by readers to Howard. The Bulger family also organised a petition demanding life sentences, and this attracted more than 278,300 signatures. Additionally, Gerald Howarth, the Conservative MP for Knowsley North, handed in a petition, this one demanding a 25-year sentence, which was signed by 5,900 people.

In July 1994, Howard announced that the boys would remain in custody for a minimum of 15 years, thus preventing review for 12 years and ensuring that both boys would be in adult prisons by the time any initial assessments took place. He openly admitted that he had taken note of the coupons, emphasising the ‘need to maintain public confidence in the system of criminal justice’. The popular press was duly satisfied, but, appearing the following year on Panorama, Lord Donaldson, a former Master of the Rolls, spoke for the bulk of legal opinion when he accused Howard of ‘institutionalised vengeance’ and complained that ‘one can’t have a politician playing to the gallery at the expense of a convicted person. That’s not justice in my book’ (quoted in The Times, 10 October 1995).

This chapter examines the processes which led from here to Thompson’s and Venables’ release on licence in 2001. It is a story from which the English legal system emerges as generally rational and humane; and it also underlines the fundamental importance of the European Convention on Human Rights, which was incorporated into UK law by the Human Rights Act 1998. It is a story from which politicians, and especially home secretaries Michael Howard and Jack Straw, emerge with considerably less credit, and the narrative needs to be read against the background in which ‘New’ Labour and the Tories contended to see who could out-tough the other on law-and-order issues. Indeed, the Bulger case played a very important role in this process. Just six days after the murder, on 19 February 1993, Tony Blair, then shadow Home Secretary, made a speech in which he warned that:

The news bulletins of the last week have been like hammer blows struck against the sleeping conscience of the country, urging us to wake up and look unflinchingly at what we see … Solution to this disintegration doesn’t simply lie in legislation. It must come from the rediscovery of a sense of direction as a country and most of all from being unafraid to start talking again about the values and principles we believe in and what they mean for us, not just as individuals but as a community. We cannot exist in a moral vacuum. If we do not learn and then teach the value of what is right and wrong, then the result is simply moral chaos which engulfs us all. (Quoted in Rentoul 2001: 200)

As Blair’s biographer John Rentoul put it: ‘His speech was of no direct relevance to the Bulger case, but touched a national mood of anxiety over the break-up of morals and families. It was like a Conservative politician’s speech, responding to a moral panic induced by an atypical case by condemning a general moral decline’ (ibid.). Rentoul notes that Blair’s office was subsequently ‘flooded with letters of approval and support’ and argues that it played a major role in his acceding to the leadership of the party after John Smith’s death in 1994. As Matthew Parris pointed out in The Times on 2 October 1994:

Tony Blair has parked his tanks on Michael Howard’s lawn. When a toddler was abducted and murdered earlier this year, with suspicion falling on two other boys, the killing inspired a moral panic across Britain. John Major announced a ‘crusade against crime’, and the numbers who told MORI they were worried about law and order doubled within a month. Sensing an electoral opportunity, both parties revamped their message … [Tony Blair’s] slogan ‘tough on crime, tough on the causes of crime’ has already entered the political lexicon. This week in Brighton [at the Labour Party conference], he discovered that his words carried a resonance even with a progressive, activist audience. When he cheekily proclaimed that Labour was now the party of law and order he won healthy applause; and, using language more often heard at a Tory party conference, he declared that ‘hooligans’, ‘muggers’, ‘perverted’ rapists and ‘racist thugs’ should be kept out of society ‘until they learn to behave like human beings’.

The effect of this political and ideological volte-face on the part of ‘New’ Labour meant that, at the parliamentary level, an authoritarian-populist consensus had rapidly coalesced around the Bulger case, and thence around law-and-order issues in general, one which left virtually no space for counter-discourses of any kind. Whether ‘New’ Labour’s punitive turn stemmed from Blair’s and Straw’s ‘communitarian’ convictions, or whether it was rather more opportunistic in origin, or both, is a moot point, but one thing is absolutely certain: it chimed perfectly with the profoundly illiberal stance taken by the vast bulk of the English daily and Sunday newspapers on social issues. These are the third set of actors in our story. In the narrative that follows I have attempted to give an indication of how the key events described were reported by the press. In the space available it is difficult to give an impression of the sheer volume of reportage, and quite impossible to analyse it all, but I have attempted to isolate the main themes. Because I am particularly concerned to show the pressures to which the courts and politicians were being subjected by newspapers, I have concentrated on those (the majority) which were clamouring to keep Thompson and Venables locked up, preferably for good, but I have also quoted on occasion from those which took a more liberal line, partly in order to show that press coverage of this issue was not homogeneous, but, more particularly, in order to demonstrate that there is a trenchant critique of journalism that emanates from within journalism itself rather than simply from within academia. Furthermore, whilst the case has given rise to some of the worst journalism I have ever seen, it has also given rise to some of the best – for example Andrew O’Hagan (1993) and the two Independent on Sunday articles included in Sereny (1995).

The story presented here could be read as one in which reason and a belief in rehabilitation triumph, ultimately, over populist demagoguery and a crude desire for revenge. But, unfortunately, this would be to ignore the wider context in which the events took place, and, in particular, the passing of the Criminal Justice and Public Order Act 1994 and the Crime and Disorder Act 1998. The latter, with its provision for antisocial behaviour orders (ASBOs), parenting orders, child safety orders, local child curfews, detention and training orders, and abolition of doli incapax (which meant that a child under 14 could be held criminally accountable only if the prosecution could prove that they knew at the time that what they were doing was seriously wrong), had the effect of massively increasing the possibilities for the criminalisation of young people. This topic is unfortunately beyond the scope of this chapter (but see Tim Newburn’s chapter in this book).

‘Who are you deterring?’

On 7 November 1994 leave was granted to Thompson and Venables for a judicial review of Howard’s actions. And the following November, in a case which was seen as having important repercussions for the boys, Mr Justice Turner stated that the Home Secretary had ‘failed to live up to the required standard of fairness’ when he increased from 15 to 20 years the tariff fixed by a judge on double killer John Pierson (quoted in the Guardian, 11 November 1995). Pierson’s QC, Edward Fitzgerald, revealed to the court that the Home Office was handing out longer terms to life prisoners than those recommended by the trial judge in 60 per cent of cases.

The judicial review of Howard’s actions in the Bulger case was heard in April 1996 in the High Court. Edward Fitzgerald, QC for Venables, argued that Howard was wrong to conclude that there was no difference between a sentence of detention during Her Majesty’s pleasure imposed on juveniles and a mandatory life sentence imposed on adult murderers, pointing out that ‘that not only flies in the face of common sense and the principle in every civilised penal code that children should be treated differently from adults, but is also contrary to both domestic and European law. No other country would have a situation where a child as young as ten can have a punitive sentence imposed by a politician’. He also argued that Howard had failed to take into account mitigating circumstances and rehabilitative needs, and that the deterrent aspect of the sentence was entirely inappropriate, given the nature of the crime. ‘Who are you deterring?,’ he enquired, ‘Other children of ten?’ (quoted in the Guardian, 18 April 1996).

On 2 May the High Court ruled Howard’s actions unlawful, in that he had treated Thompson and Venables as if they were adult murderers, as opposed to children who ‘change beyond recognition during the running of the tariff period’. Lord Justice Pill pointed out that the central imperative of detaining a young person during Her Majesty’s pleasure was to keep the need for detention under regular review, and that ‘it is inconsistent with the requirement to keep under review to fix a fifteen-year tariff at the beginning of a sentence on a child of eleven’ (quoted in The Times, 3 May 1996). Howard retorted that ‘the power I exercised was given to me by Parliament in the last century and updated three times since then. If Parliament had wanted a change it could have used any of the six Criminal Justice Bills of the past ten years’ (quoted in ibid.). He also pointed out that the power had been exercised 400 times without challenge since 1983. The former Master of the Rolls, Lord Donaldson, described these comments as breathtaking, disturbing and a ‘novel constitutional doctrine’ which amounted to ‘dictatorship by permission’. He continued: ‘The Home Secretary says that because Parliament has chosen not to change the law, then it must be the will of Parliament that they do not wish any change in the law.’ The whole basis of government was that ministers exercised their powers within the law. If they went beyond those powers, they were acting unlawfully. ‘But Mr Howard seems to suggest ministers can act unlawfully and if anybody objects, then they can change the law’ (quoted in ibid.). The decision had implications for the other 230 young murderers detained at Her Majesty’s pleasure.

Howard appealed, unsuccessfully, to the Divisional Court in July 1996. The majority ruling again centred on the contradiction in setting a tariff whilst maintaining the duty to keep the children’s progress under review. The judges also argued that Howard had acted unfairly in making his decision on a summary of the case by a judge, without seeking psychiatric or social reports, and without disclosing to Thompson’s and Venables’ lawyers the material on which he was basing his decision, thus making it impossible for them to make any representations about this material. Lord Woolf, the Master of the Rolls, and one of the judges in the case, made it clear that Howard should never have taken the coupons and petitions into account, stating that:

A court would regard it as quite improper for this type of material to be put before it, and to run a campaign designed to increase the punishment in a particular case would amount to interference with the due administration of justice. This being the position as to the courts, I find it difficult to see the justification for the Home Secretary taking a different view. I can only describe the approach in these cases as perfunctory and as falling far below the standards that a court would adopt if contemplating sentencing a child for a period of fifteen years. (Quoted in The Times, 31 July 1996)

Undaunted, Howard appealed to the Lords in January 1997. In June the Lords dismissed the appeal and the 15-year tariff was quashed. Lord Browne-Wilkinson argued that the policy applied by Howard ‘precludes any regard being had to how the child has progressed and matured during … detention until the tariff originally fixed has expired’. Thus throughout the tariff period, ‘appropriate weight to the circumstances directly relevant to an assessment of the child’s welfare’ could not be given, and hence the essential prerequisite of flexibility in dealing with the welfare of the child had been denied. Similarly Lord Hope expressed the view that a sentencing policy ‘which ignores at any stage the child’s development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy’. In addition, he argued that Howard had failed to demonstrate an appropriate ‘measure of detachment from the pressure of public opinion’, while Lord Steyn dismissed the petitions and coupons as ‘worthless’ and ‘irrelevant’ and stated that the Home Secretary should act ‘with the same dispassionate sense of fairness as a sentencing judge’. (All quotations taken from Haydon and Scraton 2000: 434–5).

This was a pretty damning judgment all round. But it needs to be stressed that the Lords did not actually declare illegal the setting of fixed penal tariffs by home secretaries. Thus the ruling did not stop the imposition of a 15-year – or indeed longer – provisional tariff in the future, as long as it was clear that the minister was prepared to recognise that a child’s development whilst in detention might call for a rethink. The judgment also left open the question of when the first review of the detention should take place, and the new regime set out by the Lords fell short of the annual reviews of detention recommended by many penal experts. Still less did the Lords consider raising the age of criminality to 14, or, failing that, banning public trials for under-14s.

Struck down in Strasbourg

By this time, Jack Straw had become Home Secretary, and so it was left to him to fix a new tariff. However, the judgment obliged him and his successors to treat Thompson and Venables, and other children in the same situation, differently from adult lifers and, in particular, to review regularly their progress towards rehabilitation, with a view to their eventual release. The final decision on their release would be taken by the Parole Board, but the Home Secretary would determine the earliest date at which the case would be referred to the Board. Straw decided to wait until after the judgment of the European Commission/Court of Human Rights, which, as we shall see, had also been examining the fate of Thompson and Venables.

Dominic Lloyd, the solicitor for Thompson, had stated in May 1994 that an application had been lodged with the European Commission on Human Rights with the intention of challenging both the way that child defendants were tried in England and Wales and the power given to home secretaries in determining sentences in serious cases. Britain was the only country, apart from the Irish Republic, where a politician – as opposed to a judge – could fix the sentence in such cases. And only France and Holland had indeterminate sentences for juveniles. Lloyd was also concerned that Howard had already made it clear that he intended to take ‘public opinion’ into account when deciding on this case – and indeed on others too. The child law specialist, Alan Levy QC, warned that Howard would be vulnerable on this point:

It’s very strongly arguable that public opinion is irrelevant, that he is taking account of something he shouldn’t. That renders the decision challengeable and, I think, void. Also, it’s very difficult to gauge public opinion. The petition may have been signed by 270,000 people but there’s a...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Figures and Table
• Notes on Contributors
• Introduction
• Acknowledgements
• 1 ‘Kill a kid and get a house’: Rationality versus Retribution in the Case of Robert Thompson and Jon Venables, 1993–2001
• 2 Citizen Journalists or Cyber Bigots? Child Abuse, the Media and the Possibilities for Public Conversation: The Case of Baby P
• 3 The Changing Politics and Practice of Child Protection and Safeguarding in England
• 4 Child Trafficking: Known Unknowns and Unknown Knowns
• 5 ‘What have the Romans ever done for us?’ Child Poverty and the Legacy of ‘New’ Labour
• 6 ‘When I give food to the poor …’ Some Thoughts on Charity, Childhood and the Media
• 7 A Coming or Going of Age? Children’s Literature at the Turn of the Twenty-First Century
• 8 Punishment, Populism and Performance Management: ‘New’ Labour, Youth, Crime and Justice
• 9 Children’s Rights Since Margaret Thatcher
• 10 Whiteboard Jungle: Schooling, Culture War and the Market at the Turn of the Twenty-First Century
• 11 Troubling Families: Parenting and the Politics of Early Intervention
• 12 Recolonising the Digital Natives: The Politics of Childhood and Technology from Blair to Gove
• 13 Kids for Sale? Childhood and Consumer Culture
• 14 The Politics of Children’s Clothing
• 15 Children’s Rights or Employers’ Rights? The ‘Destigmatisation’ of Child Labour
• 16 Saving the Children? Pornography, Childhood and the Internet
• Index