Tariffs
Court 4
Royal Courts of Justice
Stran
London WC2A 2LL
Date: 26 October 2000
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
Thompson & Venables Recommendations as to Tariffs to the Secretary of State for Home Affairs
Representatives: Messrs Lloyd Lee Dures, Solicitors, 3 The Marian Square, Netherton, L30 5QA for Robert Thompson Messrs Bhatt Murphy, Solicitors, 23 Pitfield Street, London N1 6HB for Jon Venables
THOMPSON & VENABLES RECOMMENDATION AS TO THEIR TARIFFS
On 27th July I made a Practice Statement as to life sentences for murder. In the Practice Statement I set out the course that I would adopt when making recommendations to the Home Secretary as to the tariffs for juveniles sentenced to be detained during Her Majesty’s pleasure. The recommendations are made at the request of the Home Secretary in accordance with his statement to the House of Commons on 13th March 2000. The Home Secretary has agreed that he will follow my recommendations in these cases.
This is my decision as to tariffs in the cases of Jon Venables and Robert Thompson. They were ordered to be detained during Her Majesty’s pleasure, after being convicted of murder on the 24th November 1993.
In reaching my decision I have had regard to all the information available to me, and in particular the following considerations:
1. The murder took place on the 12th February 1993. Jon Venables and Robert Thompson were then 10½ years of age, having been born, in the case of Jon Venables on 13th August 1982 and in the case of Robert Thompson on the 23rd August 1982.The facts of the murder were exceptionally horrific. They were summarised by the trial judge, Morland J. in the following terms when sentencing Jon Venables and Robert Thompson:
2. "The killing of James Bulger was an act of unparalleled evil and barbarity. This child of two was taken from his mother on a journey of over two miles and then was battered to death without mercy and then his body was placed across the railway line so that his body would be run over by a train in an attempt to conceal his murder. In my judgment your conduct was both cunning and very wicked. "
Subsequently, in the boys’ absence, the judge added:
"How it came about that two mentally normal boys aged 10 of average intelligence committed this terrible crime is very hard to comprehend …."
I accept that this very experienced judge in these words accurately described the crime. The crime had many aggravating features, including the age of the victim, the period over which the violence stretched and its degrading nature, and what was done with the body of the victim.
3. In his speech in the House of Lords on an appeal relating to a former Home Secretary’s decision as to the detention of Jon Venables and Robert Thompson, Lord Steyn said:
"The inexpressible grief of the family of the murdered
boy will never cease. The family, the local community and
society generally are morally outraged".
[1998] A.C. 407 at p.518.
The statements which I have received from James Bulger’s parents make it clear that Lord Steyn was accurately summarising the effect of the murder on them. The mother was 26 at the time her son was killed. She says, and I accept, "not a day goes by without her thinking of the events of the 12th February 1993". Her marriage broke up in the summer of 1994 and she has since remarried. She, however, believes that if James had not been killed, she would in all probability still be married to James’ father. Prior to the break-up of her first marriage she had a further son and since her remarriage she has had two more sons. She is now naturally very concerned for the safety of these children and she says she will not allow them out of her sight.
The impact of James’ death has been similarly traumatic for Mr Bulger. I have been provided with a clinical psychological report relating to Mr Bulger. The psychologist was of the opinion that Mr Bulger was suffering from post-traumatic stress disorder as a result of the murder of his son for which he requires treatment. This has adversely affected his ability to obtain employment. Members of his family, his brother and mother, are seriously traumatised. They would, according to the report, also benefit from assessment and treatment.
I have found it of real value to have information as to the impact of the death on the family. None the less, I make it clear for the benefit of other cases that I will have to consider that my invitation to receive representations from victims is limited to the effect of crimes upon the victim’s family. It is not an invitation for the family to indicate their views as to what they would regard as an appropriate tariff. The effect of the crime on the parents is relevant to the period by way of punishment and deterrence which should elapse before the Parole Board decides a different question, that is, when the offenders can be safely released back into the community on licence.
4. The trial judge, Morland J., was unable to distinguish between the culpability of the boys. He came to the conclusion that 8 years would be an appropriate tariff period. He regarded this period as being "very, very many years" for children who were then 11 years of age. He added that in 8 years’ time they would be young men. He indicated that, if an adult had committed the crime, he would have concluded that the tariff should have been 18 years. He clearly had in mind that the tariff period for children must be much lower than that for adults. The trial judge also recognised that very great care would have to be taken before either boy was allowed back into the community. He said much psychotherapeutic, psychological and educational investigation and assistance would be required before this happened. He considered that there was a very real risk of revenge attacks upon them from others. This risk is confirmed by the information before me.
5. The then Lord Chief Justice, Lord Taylor, recognised that the trial judge was in a better position than he was to assess the two boys and their crime, but he came to the conclusion that the minimum period for punishment and deterrence should be ten years.
The Home Secretary concluded that the tariff period should be 15 years. His decision was the subject of an appeal to the House of Lords. (R v Home Secretary, ex p Venables [1998] A.C. 407). The House of Lords was concerned with whether the Home Secretary had based his decision on appropriate considerations. The House of Lords decided that the Home Secretary had not taken into account the correct considerations. The House of Lords decided that a sentence of detention during Her Majesty’s pleasure had to be considered from time to time to assess whether the continued detention of the boys was justified. Lord Browne-Wilkinson and Lord Hope of Craighead made it clear that it was necessary to take into account the requirement of Section 44(1) of The Children and Young Persons Act 1933 (as amended), which provides:
"Every court in dealing with a child or young person who is brought before it, either as … an offender or otherwise, shall have regard to the welfare of the child or young person…."
7. In considering the appropriateness of the periods recommended by the trial judge and the then Lord Chief Justice, and then fixed by the Home Secretary, it has to be borne in mind that they are equivalent to a sentence of an adult to imprisonment for at least twice the period of the tariff. This is because if an adult is sentenced to a period of 16, 20 or 30 years imprisonment, he would be considered for release on parole once at least half that period had expired, namely after 8, 10 or 15 years. I have also had to take into account that the judge and the former Lord Chief Justice did not have the advantage of knowing how Jon Venables and Robert Thompson have developed while in custody, which is a matter to which I have to have regard.
The reports to which the trial judge referred have been obtained. The reports show clearly that the two boys have made striking progress in the secure units where they have been detained. The extent of this progress reflects very great credit on all those who have been responsible for their care. The reports draw a vivid picture of two boys who have significantly improved over the years. For example, in a report of February this year a consultant adolescent forensic psychiatrist, accustomed to working with child murderers says of Jon Venables:
"He has made exceptional progress as a child adolescent serving HMP with personal development, acknowledgement of the enormity of his offence, understanding of his actions as a child, and in his "normal" adolescent development in "abnormal circumstances."
A similar report in the case of Robert Thompson also written in February of this year states:
"Robert has made exceptional progress in his current placement with regard to maturity, education and insight gained in therapy. Robert accepts responsibility for the grave acts he committed in the offence and shows great remorse for the pain and suffering he caused."
9. Jon Venables has no doubt benefited from the continued interest of his parents and Robert Thompson has benefited from the similar interest of his mother.
10. Jon Venables and Robert Thompson have been detained in separate secure units. They are different personalities with different backgrounds. However, the assessment of the respective psychiatrists and the staff of the units at which they are detained are very similar when they describe the way these two young men have responded to their punishment. Significantly, the assessments generally agree that both of these young men are genuinely extremely remorseful about the crime which they committed, and the effect which it must have had on James’ family. In addition, neither has shown any aggression or propensity for violence during his period of detention. They have worked hard in pursuing their education and, given their circumstances, have considerable achievements to their credit. All those who have reported on them regard the risk of their re-offending as being low.
11. The progress which they have made does not mean that it is going to be easy for them to be rehabilitated into the community. They are bound to have been affected by having grown up in a secure institution. They have had limited contact with the outside world during the last seven years. It is therefore important that the programme necessary to prepare for their return to the community is commenced as soon as appropriate.
12. The one overriding mitigating feature of the offence is the age of the two boys when the crime was committed. However grave their crime, the fact remains that if that crime had been committed a few months earlier, when they were under 10, the boys could not have been tried or punished by the courts. In addition, account has to be taken of the fact that the last seven years, the period of their adolescence, has been passed in custody.
13. They are both now 18 years of age. Being 18 they would be due to be transferred to young offenders institutions. The reports make clear that the transfer would be likely to undo much of the good work to which I have referred. Having been living in an unnaturally protected environment, they are unprepared for the very different circumstances in which they would be detained in a young offenders institution. They are unlikely to be able to cope, at least at first, with the corrosive atmosphere with which they could be faced if transferred. There is also the danger of their being exposed to drugs, of which they are at present free.
14. These considerations are relevant. In his speech in the House of Lords, to which I have already referred, Lord Browne-Wilkinson made it clear that in exercising discretion as to the duration of detention, I am required to take into account as one of the relevant factors, "the desirability of reintegrating the child into society". He added that,
"the extent to which this is possible must depend, in the case of a young child, at least, on the way in which the child is maturing through his formative years. If the child is making exceptional progress and it is clear that his welfare would be improved by release from detention, that is one of the factors [which I] must take into account and balance against the other relevant factors of retribution, deterrence and risk. The child’s welfare is not paramount: but it is one of the factors, which must be taken into account".
15. Quite apart from the welfare of these two young men there is a public interest in ensuring that what has been achieved in their upbringing is not wasted. Society has invested considerable energy and skilled care in their upbringing. A great deal of money must have been expended upon them. This commitment should be built upon.
16. Naturally, whenever these two young men come to be released from detention, that will be far too early so far as the victim’s family are concerned. The parents are entitled to point out that James had no second chance. He was entirely innocent but he will not have the opportunity of growing up and maturing in the way his killers have. As any parent would, I understand and sympathise fully with the family’s position.
17. However, there are other considerations to be placed in the balance. The two boys have developed and behaved during their detention in a way in which the trial judge and the then Lord Chief Justice could not be aware. The material which is before me, including the reports from very eminent doctors, demonstrates that further detention would not serve any constructive purpose.
18. Their release will not end their punishment. Having become responsible young men, they will have to live with, and will be marked by, what they did when children of 10. Their crime is not one which is expunged by the Rehabilitation Act 1974. They will be on licence and liable to be recalled to custody for the rest of their lives if they do not comply with the terms of their licence. It is to be hoped that this does not prevent them leading full and useful lives. So far as this is possible it is in the interest of the public that they should now do so.
19. If I had been called on to set their tariff after they had been sentenced, I would probably have selected 10 years as being appropriate, as did Lord Taylor. Today it is clear, as was not clear then, that it is necessary when fixing the tariff to take into account the welfare of the children concerned. In addition, when reviewing a tariff in the case of children I am required to take into account the progress which they have made since they have been in detention. In the case of both these young men the information before me makes it clear that they have done all that is open to them to redeem themselves. While their crime remains horrendous, they are entitled to credit for this. Because of their behaviour they are entitled to a reduction in the tariff to eight years, which happens to be the figure determined by the trial judge.
20. An 8 year tariff would expire on the 21st February 2001. I have already pointed out that it would not be in their or the public’s interest for these two young men to be transferred to a Young Offenders Institution. In all probability, if the tariff period expired today it is likely that it would be after February 2001 before the Parole Board could decide whether they should be released and, if so, for the necessary arrangements to be made to enable this to happen. I therefore set a tariff which will expire today. This will enable the very difficult task of deciding if and how these young men should return to society to begin. I emphasise that the final decision as to whether they should be released and conditions for relief are the responsibility of the Board and nothing I have said is to interfere with the Board’s discretion.
One matter to which I should finally refer is the delay which has occurred in my giving this decision. As I have made clear, I regard it as being helpful to have representations from the victim’s family in a case of this sort. The representations are normally to be channelled to me through the Director of Public Prosecutions. In this case, the lawyer acting on the part of Mr Bulger has found it necessary to request a number of extensions of time in which to make those representations. Bearing in mind the nature of the representations I was seeking, I found the inability to provide those representations difficult to understand. However, I granted extension after extension because I did not think it right that Mr Bulger should be disadvantaged. However, it would have been wrong to defer giving my decision any longer and I gave him a final deadline of 24th October (last Tuesday). This deadline was met. I would emphasise that in the other cases which I will be required to consider I will not be able to be so indulgent. If lawyers have other commitments which prevent them serving their clients interests, it is their responsibility to make arrangements so that others can meet those interests.