Six years ago a similarly damning judgment outlawed the Home Secretary's role in fixing the sentences of "discretionary lifers" - those given indeterminate life sentences for offences other than murder, like rape and manslaughter.
Although Michael Howard, the Home Secretary, was yesterday stressing he still maintained the right to set the minimum sentence - the tariff - for young killers, lawyers suggested it was only a matter of time before that power, too, was found to breach human rights legislation.
At issue is whether there should be any role for a politician in fixing individual offenders' sentences and release dates. The judiciary, a growing number of politicians and human rights lawyers believe there is no place for politics when the freedom of an individual is concerned - especially when children, who have particular needs and vulnerabilities are concerned. The Government maintains there is, claiming the power is needed "to ensure that those who are convicted of the uniquely heinous crime of murder are punished appropriately". But Britain stands alone in Europe as the only country which hands out indeterminate sentences to juveniles who kill - who number about 15 a year - who are not judicially supervised. At present children aged between 10 and 18 convicted of murder are "detained at Her Majesty's pleasure". It is the equivalent of a "life sentence" for adults.
Then the Home Secretary fixes a minimum sentence, or tariff, to meet society's demand for punishment. He considers recommended tariff's from the trial judge and from the Lord Chief Justice. In the case of Jon Venables and Robert Thompson, the two 11-year-olds in the Bulger case, the Home Secretary set tariffs at 15 years - far higher than the eight-year sentence suggested by the trial judge and that of 10 years recommended by Lord Taylor of Gosforth, the Lord Chief Justice. When that tariff is served, a convicted killer's continued detention is considered by the Parole Board. It makes recom- mendations to the Home Secretary, which until yesterday he could accept or reject.
But yesterday the nine judges in Strasbourg ruled that the practice breached Article five of the Human Rights Convention, which states that "the lawfulness of detention shall be decided speedily by a court".
It stated there should be an oral hearing with legal representation and the possibility of calling witnesses. It also said that the existing Parole Board policy, which only allows limited representation, would not qualify as a suitable substitute.Reuse content