Bulger ruling: If the defendants could not talk about their crime, how could they conduct a defence?

Neither spoke during the trial, but their voices filled the imposing Preston Crown Court for more than four days. First, it was Robert Thompson denying he had killed James Bulger, then sobbing. "Why can't I go home with my mum? ... I don't want to sleep here again." Next, the jury heard Jon Venables, his voice rising to an excruciating crescendo of guilt. His mum had hugged him, and told him she loved him and said he should tell the truth. "I did kill him,'' Venables admitted. "What about his mum? Will you tell her I'm sorry?" Thompson and Venables were interviewed by police for more than 20 hours, and tape-recordings of those interviews were the most compelling thread in the case of Regina v A and B. Other passages of the trial had led the imagination with clinical precision into James Bulger's mind, the last terrified thoughts of his short life. He suffered 42 injuries, the court heard. He had multiple fractures to the skull and the right side of his head was shattered. The pathologist counted 22 bruises

Neither spoke during the trial, but their voices filled the imposing Preston Crown Court for more than four days. First, it was Robert Thompson denying he had killed James Bulger, then sobbing. "Why can't I go home with my mum? ... I don't want to sleep here again." Next, the jury heard Jon Venables, his voice rising to an excruciating crescendo of guilt. His mum had hugged him, and told him she loved him and said he should tell the truth. "I did kill him,'' Venables admitted. "What about his mum? Will you tell her I'm sorry?" Thompson and Venables were interviewed by police for more than 20 hours, and tape-recordings of those interviews were the most compelling thread in the case of Regina v A and B. Other passages of the trial had led the imagination with clinical precision into James Bulger's mind, the last terrified thoughts of his short life. He suffered 42 injuries, the court heard. He had multiple fractures to the skull and the right side of his head was shattered. The pathologist counted 22 bruises, splits and grazes on James's face and head. There were 20 wounds more on his body. He endured "a short period of survival" after the attack.

But only the interviews came close to making this atrocious narrative plausible. Out of the mouths of 10-year-old boys came partial admissions of a passive role in the abduction and assault of a two-year-old baby. From two loudspeakers, with intrusive background hum, came what proved to be not just confirmation that Thompson and Venables were there. The court was hearing an archive of two boys who by then had gone absent psychologically - absent from the event and absent from the legal system which took over where the police left off on 21 February 1993. The evidence was given earlier in the trial by expert witnesses called by the Crown to help with an esoteric legal requirement. Dr Susan Bailey, a psychiatrist with the Adolescent Forensic Service, said Venables was incapable of talking in any meaningful way about his participation in the death of James - even to her. Another psychiatrist, Dr Eileen Vizard, said Thompson had suffered from post-traumatic stress disorder since the killing. Neither boy was able to understand or participate in the proceedings, an extraordinary disclosure which, curiously, was allowed to pass by. If Dr Bailey and Dr Vizard were right, what the boys had said in police interviews amounted to their last words. And if the defendants could not talk about the crime, how could they now conduct any sort of defence? For the remainder of the trial, during those long passages of distressed, disembodied voices, the proceedings seemed futile.

The conduct of the trial attracted some admiring contemporary comment. The judge ordered breaks during the morning and afternoon. Thompson and Venables were made as comfortable as possible, in the dock, which was raised on a platform, and downstairs in the separate holding rooms where they were kept with their case workers from Liverpool social services. Even with their elevated flooring, the pair, with neat haircuts and wearing smart jacket and ties, could scarcely see over the brass railing in front of them to meet the gaze of the judge, Mr Justice Morland, seated some 25 feet away.

The media interest was intense. In the breaks, the press room buzzed with German, Danish, French, as well as American and Australian accents. An overspill room wasconstructed in a nearby office block, where journalists heard a live audio feed. Banks of telephones were set up. But once the legitimacy of it all had been implicitly questioned by the psychiatrists, the way the hearing was run became irrelevant. It might as well have been in Latin. And, at its outset, it was. Before evidence about the abduction and homicide was adduced, counsel for the prosecution, led by Richard Henriques QC, had to rebut the presumption of doli incapax. The presumption - that children are incapable of wrongdoing - is a Victorian safeguard against prosecution (and execution) of feral children. It was easily rebutted at the Bulger trial, but it distorted most of the post-trial analysis by commentators and politicians who had never set foot in court. The case had nothing to do with Venables and Thompson knowing the difference between right and wrong; rebutting doli incapax merely meant the trial could begin. But it prompted a perverse interpretation of the proceedings.

If the court was entitled to hear evidence about the defendants knowing the difference between right and wrong, why not admit evidence about their fitness to stand trial? And what about their right to silence? Why had that been waived? Can 10-year-olds understand the right to silence? And how old were they? Both had passed 10 on the calendar, the age Parliament said is the youngest at which people may be deemed responsible for their (criminal) actions. Dr Arnon Bentovim, of Great Ormond St Hospital, saw Venables. Dr Bentovim said that although Venables was chronologically over the age of 10 at the time of the killing, he was less mature as far as psychological or emotional age was concerned. By what age do we measure responsibility - calendar dates, or emotional maturity? And why did the court hear none of this evidence?

There were other questions. Why was Thompson represented at the outset of his interviews with the police by a legal representative who was not fully qualified? Why were the police allowed to continue questioning the boys when they were audibly distressed?

And why, since there was already enough compelling evidence of abduction and homicide to merit the long-term detention of two juveniles, was a jury being asked to decide on the basis of the interviews if Venables and Thompson had acted with sufficient malice to justify a conviction of murder? It seemed senseless. The boys were going to be detained anyway.

What efforts were made to agree a plea of guilty to manslaughter? What efforts were made to try the boys separately? The jury was asked to weigh the evidence of two boys who blamed each other for the offence. They had to put out of their minds the evidence of one when considering the evidence of the other. In many jurisdictions, that task is often considered beyond one jury.

To critics of media reporting of the trial there is a sound defence. The contempt laws at the time and the law of libel subsequently has prevented the full story being disclosed. But of all the images and echoes of those 17 days in a wood-panelled court, chosen because it was 50 miles away from the intense emotions felt in Liverpool, none is as powerful or enduring than the impression that grew of two boys who were in court, but not present.

Three months later, on the steps of the Adelphi hotel in Liverpool, one of the boys' parents took possession of a letter imploring them to seek new legal advice. Their son, the letter said, had suffered "numerous violations of his rights to a fair trial". At last, the voices speaking for Venables and Thompson were not their own.

The writer was Northern Correspondent of 'The Independent', and reported on the Bulger trial in 1993.

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