James Bulger's mother demands Jon Venables faces justice
The mother of James Bulger has demanded that her son’s killer must face justice amid fears that he may escape charges over the alleged possession of child pornography.
I too hope that the prisoner formerly known as Jon Venables gets justice. I suspect that what I would see as justice for him is not the same kind of justice that Denise Fergus is seeking. In my view, Denise Fergus’ input to the process should have ceased following the public trial of Jon Venables and Robert Thompson. The matter is taken out of her hands and dealt with on her behalf by the State. The reason being so that the scales of justice are balanced. There have been moves to so-called rebalance in favour of victims of crime; however, such tinkering with the scales of justice creates both an imbalance and another victim.
The secrecy and legal issues surrounding this case make it all the more interesting. The Ministry of Justice position is that Jon Venables is governed by Prison Service Order 4700 – Indeterminate Sentence Manual. In particular, Chapter 13, Release, Supervision and Recall. Formerly called the Lifer Manual, it has no legal status (see Becker -v- Home Office [1972] 2 QB 407) and there is a danger that Jon Venables lawyers may challenge all the way up to the Supreme Court and then the European Court of Human Rights. Based on the Manual, if it is being alleged that Jon Venables has committed a criminal offence, the MoJ has the option of going for trial and/or dealing with the case via the Parole Board.
For arguments sake, if it is a case of possession of child pornography and the maximum sentence available to the court is 18 months imprisonment, then Jon Venables may be at a disadvantage if he were to be dealt with by the Parole Board and his recall upheld because he would be likely to be facing 2 years before his next Parole Board hearing. It is possible for the Parole Board to recommend a review earlier than 2 years, however, the power rests with the MoJ to reject such a recommendation. If the reasons for rejecting the recommendation appear to fall foul of accepted legal principles, then the MoJ decision is susceptible to judicial review.
Jon Venables has the benefit of being a high profile case. For example, a low profile case and poor legal representation can see a recalled lifer stuck back in the system for 10 years or longer! There is also a disadvantage in a high profile case, the system seeking to appease those clamouring for Jon Venables’ blood. It is a difficult balancing exercise for the Parole Board, and the scales are weighed in favour of public protection against the rights of the recalled lifer. The test which the Parole Board must apply is the Benson/Bradley Test which is based on risk to life and limb. When Jack Straw made his statement in the House of Commons, he was asked for an assurance that no person has been killed or seriously injured as a result of the allegations that are being investigated. Straw said he had seen no evidence to suggest that is the case. This would indicate that Jon Venables continued detention cannot be justified, and it is likely that the Parole Board will direct that he be re-released.
According to the Manual: “Immediate recall will be appropriate in cases where the licensee’s behaviour presents an immediate risk of sexual or violent harm to others, regardless of the type of index offence for which he or she was originally convicted. That risk does not have to be based on the licensee being charged with any criminal offence”. Mere possession of child pornography does not necessarily mean that the offender will go onto sexually abuse children. What adds a complication is that Jon Venables, along with Robert Thompson, was convicted of the murder of 2 year old James Bulger. Apparently, it was neither raised or if raised not established that there was a sexual element as a motive. However, the Parole Board operates on the basis of a future potential victim. It is called Incapacitation Theory. Professor Andrew Rutherford in Prisons and the Process of Justice states: “The advocates of incapacitation, selective or general, attempt to dodge the predicament, posed by Lewis Carroll’s White Queen, of punishing people for crimes they have not yet committed”. In other words, it amounts to Thought Crime. If the Parole Board thinks the worst, the recalled lifer could be in a lot of trouble and it will need all the skills of an experienced prison law solicitor/barrister to change the minds of the Parole Board.
The concept of public interest can sometimes be rather hazy. According to section 32(2) of the Crime Sentences Act (!997) “The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable”. This might mean simply exposing his true identity, which means managing his risk in the community is compromised by this breakdown in supervision. For example, it could lead to Jon Venables being attacked and him causing serious injury or death to someone else as he defends himself. It maybe that he will be re-released if the Parole Board is satisfied that his Release Plan accommodates the breakdown in supervision.
I have read somewhere that when the Bulger killers were released with new identities this included being issued with passports. However, I would be very surprised if this was the case. Especially, given that under the Manual a released lifer is not allowed to go abroad without first seeking the permission of the authorities. This permission is rarely permitted and requires exceptional circumstances. For example, I was allowed to go to the European Court of Human Rights in Strasbourg. The problem for the authorities is that no other country in Europe has a life licence scheme. In Europe, once a lifer is released from prison that is the end of their sentence. In this country, the life sentence continues in the community. It’s like being attached to a elastic band, which can be yanked back at anytime. If a released lifer decided to go abroad, because the life licence is not recognised by any other jurisdiction he would not be in danger of being arrested and returned to this country. However, if he then returned he would be arrested for being in breach of a life licence condition and recalled to prison. There is a danger that Jon Venables lawyer might challenge the life licence scheme as being a breach of human rights.
There is also a sense that the Parole Board is, in effect, re-sentencing behind closed doors. In the present climate, I doubt that Jon Venables will get justice. Denise Fergus has said she will not be contented until both killers stay in prison until they rot. So, it is unlikely she will get what she calls justice either. The only winners are the lawyers!
1 comment:
From what I know, the investigation appeared to establish that Robert Thompson was most likely to have violated James Bulger. This is because he, who was usually described as impassive, would become very defensive when such was suggested. There's evidence to suggest that he was molested and this is often something that can lead someone to molest others in turn.
At any rate they were not convicted for sex offences so if it is indeed child pornography, and I am not at all convinced that this is so, this is just speculation, I don't think they can tie it in to the murder and use this to keep him in prison indefinitely.
I hope they do not succumb to pressure from outside. To keep Venables locked up only because some angry mob outside wants it is a miscarriage of justice and damages the rule of law itself.
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