London barristers last week compiled a draft application to the court in Strasbourg, arguing that the English legal system breached the boys' rights. The move will outrage the Bulger family and their supporters, including several MPs, who feel that Thompson and Venables have not been punished enough.
If successful, the appeal will not acquit and free the boys, although their convictions for murder are believed by the legal advisers to be wrongful.
The European court can force Britain to set a fixed period for their prison sentences, and ensure that treatment rather than punishment becomes the prison service's priority.
In the most far-reaching implication of the appeals, the court could declare illegal government powers to decide when Thompson and Venables may be released.
A US attorney who is behind the challenge, but does not want to be named, said 'enormous wrong' was done to Thompson and Venables from the time of their arrest until sentence. 'Many citizens of some of the Western countries, including many Americans, were aghast that England would try to lock up children so young for murder. Nothing will bring James back, and certainly not the denial of the boys' legal rights. They are 11-year-old children who need the best of treatment, not punishment.'
The attorney, with more than 22 years in practice, is a lawyer for the American Civil Liberties Union and has won a number of appeals for prisoners on Death Row. His clients in the United States are prepared to contribute toward the costs of the application. A London- based children's charity, Approach, has also said it will ensure the Venables and Thompson families do not have to pay anything.
The appeal claims that Thompson and Venables, aged 10 when they abducted James, suffered inhuman or degrading treatment when tried in public as if they were adults.
The judge, Mr Justice Morland, ordered them to be detained at Her Majesty's pleasure after a 17-day trial at Preston Crown Court in November. A jury had unanimously convicted the boys of abduction and murder in February 1993. James died on a railway line after about 30 blows from a brick and iron bar inflicted multiple head injuries. Neither Thompson nor Venables offered any evidence in their defence.
The sentence, an indefinite period in custody, breaks the Human Rights convention which the British government ratified in 1953, the appeal will claim.
It will also challenge the prerogative of the Home Secretary to decide when the two should be released. Mr Justice Morland and Lord Taylor, the Lord Chief Justice, have recommended eight and 10 years respectively as the 'tariff' for James's murder, a minimum period which the boys must serve to meet 'the requirements of retribution and deterrence'. The recommendation sparked a furious reaction from the Bulger family, who said the boys, held in local-authority secure accommodation, should serve much longer sentences.
The Home Secretary, Michael Howard, is not bound to follow the judges' advice for the tariff and has not yet informed the boys what it will be. The appeal will claim the Human Rights convention is violated by Britain because a politician, instead of the judicial system, exercises the ultimate power to determine in what conditions the boys are detained, and how long they serve.
Doubts about the fairness of the trial were raised before it began. David Turner QC, for Thompson, said saturation media coverage of the killing included disgracefully prejudicial material about the accused boys. But the judge ruled that the defendants would not suffer serious prejudice because of the publicity. His ruling was not subsequently challenged - sources said the boys' parents were reluctant to lodge appeals because they did not want the boys to endure further court appearances and publicity. But neither Thompson nor Venables will have to appear before the European court.
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