Right and wrong paths to justice: A week after the Bulger verdict, Jonathan Foster reflects on the fairness of the trial

SINCE the conviction of Robert Thompson and Jon Venables for the murder of James Bulger, public reaction to the case has often borne little resemblance to the narrative route presented to the jury. So much light has been shone through so many sociological, ethical and psychiatric prisms that the real significance of the case, if any, may by now be hopelessly distorted.

What few of those commentators who never set foot in Court Number One at Preston question is whether Thompson and Venables had a fair trial - fair to them and fair to those anxious to understand what happened.

Yes, they did it all right. Forensic evidence matched Thompson's shoe to a wound on the baby's head, and blood on Venables's shoe to James's blood. There was no miscarriage of justice; but perhaps the carriage of justice had a wheel or two missing.

The first chorus of post-trial comment repeated a line about right and wrong, and two boys who didn't know the difference, perhaps because the churches no longer taught it. The fulcrum of the prosecution case, however, was that they did know the difference. Had they not, the jury would have acquitted them. For purposes of conviction, English law demands in its juvenile killers an ethical awareness that adult murderers are not required to possess.

It was meant to be a liberal, humane safeguard, this presumption (doli incapax) that a child is incapable of doing wrong. It belongs to a time when not all children enjoyed compulsory full-time education (let alone the opportunity to truant), when children could be sent to the scaffold. An advisory committee recommended to the Home Office before Thompson and Venables were born that it be scrapped. It was not, and Richard Henriques QC, for the prosecution, had to convince the Preston jurors that these two 10-year-olds knew, on 12 February, the difference between right and wrong.

It seemed irrelevant to the proceedings. Of course children in the late 20th century know the difference. But in a society where there is no adult consensus about 'the' difference between right and wrong, only that there is 'a' difference, the presumption on which the trial hinged was a clumsy means of discovering what degree, what measurable intensity of malice Thompson and Venables bore.

This antiquated, uncalibrated moral yardstick also denied Thompson and Venables rights that an adult defendant would have enjoyed. Evidence about the character and behavioural propensity of the defendants was admissible. Jurors heard about shoplifting; they would not have, had two adults been in the dock.

On day nine of the trial, they heard the psychiatrists. Robert Thompson, on the advice of his lawyers, did not see the Home Office forensic psychiatrist. But shortly before the trial he was interviewed by Dr Eileen Vizard. Her evidence was called by the prosecution; she was asked whether he knew in February the difference between right and wrong, whether it was wrong to abduct a child, injure a child, and abandon an injured child. She did not know.

She said, on 'the balance of probabilities', Thompson knew the difference. 'If the issue is on the balance of probabilities, I think I can answer with certainty,' she said. The issue in criminal cases is not on a balance of probabilities. It is, or should be, beyond reasonable doubt.

Dr Susan Bailey, the Home Office forensic psychiatrist, saw Jon Venables on several occasions. She said unequivocally that he knew the difference. She also said that he was incapable of talking in any meaningful way about his participation in the death of James - even to her. Dr Vizard said Thompson had suffered from post-traumatic stress disorder since the killing.

Here, in the formal theatricality of an adult trial, stood two children, at least one of whom could not properly instruct his lawyers, neither of whom could give evidence on his own behalf. Thompson's 'high level of anxiety' had been intensifed by the 'lack of skilled therapeutic help' he had endured since his arrest, Dr Vizard said. Both boys were unable to understand or participate in the proceedings. If they could not, how could anyone else?

The trial consisted of an account of events for about four hours after James was abducted, followed by a series of interviews with Thompson and Venables conducted even as the shutters came down on their recollection, as the nightmares confounded them and the vivid flashbacks ran. There was little presented to the court about why they did it, still less about when or where their minds turned to killing. It is an unsolved murder with two sound convictions.

Those convictions, and the fruitless search for explanation, were anticipated contemporaneously. The defence submitted to the trial judge a bundle of 243 press cuttings. While far from exhaustive, it amounted to flagrant abuse of the law, expressions of the defendants' guilt, their 'evil', their broken homes, drunken mothers, cruelty, bullying. There was, defence lawyers argued, no possibility that the boys could expect a fair trial. One month earlier, an Old Bailey judge had said that press coverage of the case of the Birmingham Six meant that three West Midlands police officers involved in the case could not get a fair trial. Counsel for Thompson and Venables recited extracts from coverage of the Bulger murder. The gamut of opinion, from the episcopacy to the the boys' neighbourhoods, had been canvassed and presented in prejudicial juxtaposition with news reports about the arrests of two 10-year-olds.

It had continued, with stories about the boys living in luxury during remand, sucking lollipops, seeming unconcerned about what they had done. Mr Justice Morland expressed some sympathy with the application for a stay in proceedings but allowed the trial to go ahead.

If a fair trial is one that convicts the guilty, then nobody who attended the trial could doubt that Thompson and Venables did it. But the judicial importance given to the boys' culpability, knowing the difference between right and wrong, clouded rather than clarified. If the purpose was to produce two alien specimens, stand them mute in a cage, and have their disembodied voices speak of magically terrible events, the trial achieved its purpose. As a vehicle for informing opinion, it fell far short of what was required.

(Photograph omitted)