Sentence on Bulger boys was unfair, say judges

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Michael Howard's decision to order the boys who killed the toddler James Bulger to serve a 15-year minimum term was illegal, the Court of Appeal ruled yesterday. The court declared he had been wrongly swayed by a flood of public petitions.

In his first clash with the Home Secretary since taking over as Master of the Rolls, Lord Woolf said it was clear that he took the many representations into account when fixing a higher "tariff" than the judiciary. That was fundamentally unfair because the material was "impossible to test or match".

As Mr Howard pondered his latest humiliation at the hands of the courts, Denise Bulger, James's mother, said it was "disgusting" that the court should call on the Home Secretary to ignore the quarter of a million people who had backed their campaign to have Robert Thompson and Jon Venables jailed for life.

Thousands of people signed petitions, letters, and coupons in the Sun newspaper urging that "life should mean life" after the two 10-year-olds abducted James, aged two, from a Bootle shopping centre and murdered him on an isolated railway line in February 1993.

The trial judge, Mr Justice Morland, ordered them to be detained during Her Majesty's Pleasure, the sole sentence for juvenile murderers, recommending a minimum "tariff" of eight years - the proportion of sentence reflecting punishment and deterrence. The then Lord Chief Justice, Lord Taylor, revised that upwards to 10 years, but Mr Howard substantially raised it to 15.

Lord Justice Hobhouse and Lord Justice Morritt agreed with Lord Woolf that the decision-making process had been flawed and illegal, adding that Mr Howard had failed to disclose the material on which he was basing his decision to lawyers for Thompson and Venables so that they could make representations, or to take into account psychiatric reports as a judge would have done.

The ruling means that Mr Howard has to reconsider his decision, but it will almost certainly reach the House of Lords and possibly the European Court of Human Rights. The fate of more than 200 other young killers in detention will also turn on the final ruling.

Alongside the blunt criticism from the judges, the judgment also reveals for the first time that two psychiatric reports on one of the boys, Venables, indicated an "excellent" response to the therapeutic work and current family support he was receiving. One report said: "There would be major concern for him to have to progress through young offender institutions to prison," which Lord Woolf said, "is what is likely to happen if the present tariff is maintained".

Of the three judges, Lord Woolf was the most critical of the current system of sentencing for juvenile killers, although he stopped just short of declaring that the policy of setting of tariffs was illegal. But adopting a similar reasoning to a High Court ruling in May, he alone insisted that child killers should not be subjected to the same policy as adult murderers.

The ruling comes amid mounting calls for child killers to be subject to a flexible regime of regular reviews of their detention. Stephen Shaw, of the Prison Reform Trust, said: "The Home Secretary as a politician seeking re-election should play no part in deciding how long offenders spend in prison. Britain is a country ruled by law, not by tabloid newspapers."

But David Maclean, the Home Office minister, insisted: "The Court of Appeal has confirmed that the Home Secretary has the power, in principle, to set tariffs for juveniles convicted of murder, as he does for adult murderers."

The Tory MP, John Greenway, a member of the home affairs select committee, said: "It seems that standards of fairness only apply to the interests of the criminal. I think a lot of people will be very angry about it."

Lord Woolf and Lord Justice Hobhouse said there was an urgent need for the Government to review the law, which Lord Woolf said no longer reflected the flexibility originally laid down by Parliament.

Conflict with courts, page 3