End in sight for minister's right to set sentence

Legally, two questions must be addressed following yesterday's ruling by the European Court of Human Rights.

Legally, two questions must be addressed following yesterday's ruling by the European Court of Human Rights.

The first is the role the Home Secretary should play setting sentences for children convicted of serious crimes. The second is what changes need to be made to the criminal justice system to accommodate the requirements of children charged with very serious offences.

In dealing with the first question, prison reformers and rights groups say the writing has been on the wall for many years. A number cases, involving adults and juveniles, taken to Europe have eroded the right of the Government to interfere with the tariff, the first part of the judicial prison sentence, which relates to punishment for the offence. The other element reflects other issues, including protection of the public and the offenders' behaviour in prison.

By setting a minimum tariff in the Bulger case, Michael Howard, the home secretary at the time, appeared to take on the role of an appeal court judge. It was this cross-over between executive and judiciary which the European court said breached the Convention on Human Rights. The court found that "there had been no judicial supervision incorporated in the initial fixing of their sentences."

Yesterday Sir Leon Brittan, home secretary from 1983 to 1985, who introduced the tariff system for life-sentence prisoners, said it was time to separate judicial and political powers in this area.

John Wadham, director of Liberty, said the decision left the Government with no choice but to change the law to comply with Europe. "Even in the case of the deaths on the Rock [the killing of IRA members by the SAS in Gilbraltar] the Conservatives eventually complied." Once the change in the law has been made, the home secretary will only be able to set a minimum tariff in cases of adult murderers. And even this is expected to be the subject of the next legal challenge when the Human Rights Act is implemented in October.

With the second question - what changes need to be made to accommodate children involved in serious offences - Mr Straw has again acknowledged that there would have to be changes in the way juveniles were tried and sentenced in light of the judgment.

The court conditions facing Jon Venables and Robert Thompson were very different from those experienced by a juvenile being tried in a youth court. A youth court is set out like a classroom, with the magistrate or judge (in a suit rather than wig and gown) at a desk at the front. Defendants sit with their parents and public intrusion is kept to a minimum. In the Bulger trial one of the boys' lawyers said the atmosphere was the most intimidating he had experienced since he first became a lawyer.

Yesterday Mr Howard defended the tariff system. He also said he believed the court proceedings were fair and that the boys had every opportunity to realise what was going on.