I discovered the "European" view of the Bulger case on the morning the trial opened in Preston in November 1993. Among those of us queueing for a place in the public gallery were two French journalists, who expressed incredulity at the prospect of two 10-year-old children being tried by jury in an adult court. Under English law that is how it must be, we explained. A very odd way of carrying on, they replied, but no doubt when the court was presented with social and psychiatric reports on the two boys, a fair and appropriate verdict would follow. Um, well, no, the French were told, this being an adult court such evidence is deemed inadmissible and would form no part of the proceedings.
Horrified, the two French journalists went with us into the gallery overlooking Court No 1. My turn to be horrified came next. All the pre-trial publicity had led me to expect two depraved Clockwork Orange super- thugs, not the pair of little primary schoolkids in the dock. What they had done to James Bulger was monstrous. But soon enough the trial seemed monstrous too. John Venables, overawed, cried on the shoulder of the social worker sitting next to him. Robert Thompson sucked his thumb and tried to stare back at the journalists staring at him. Neither knew the half of what was going on. The words flew over their heads. At one point, a barrister, cross- examining, used the metaphor of painting with a broad brush. "What's a broad brush?" Robert Thompson whispered to his social worker.
It was clear that the boys lacked the intellectual maturity to follow proceedings, let alone instruct their lawyers. Indeed, so superfluous was their presence (except as captured prisoners to be paraded before a cheering gallery), I was reminded of those medieval cases when weevils and locusts were put on trial for ruining crops. For some of us, any excitement at being present at a "piece of history" gave way to feelings of shame and complicity - and a conviction that nothing like this must happen again.
Now, after Thursday's judgment from Strasbourg, the Bulger trial is indeed a piece of history - the last court case of its kind in Britain. In future, cases involving children will have to be handled differently, with the media kicked out of the courtroom and the Home Secretary barred from setting tariffs. Thanks to Europe, that is. No thanks to Michael Howard, who still thinks he was right to double the boys' sentence since this was being "sensitive to the public mood" (ie, he had seen the petition in the Sun calling for the boys to be left to rot in jail "for LIFE", and did not want to alienate loyal Tory voters).
No thanks to Jack Straw, whose response to the judgment in the Commons was defensive. Straw could have dissociated himself from his predecessor and from the discredited Majorite ethos of condemning a little more and understanding a little less. He could have promised a fresh start. But instead of acknowledging the force of the verdict from Strasbourg (whose judges agreed unanimously in two of their censures, and by 16 votes to one in the other), he just huffed and puffed, as though the Strasbourg judgment were also a condemnation of his own get-tough policies on juvenile crime.
Straw was right to say that the European Court rejected the charge that the treatment of Thompson and Venables had been "degrading" (by 12 votes to five, in fact - hardly a wholesale exoneration). Efforts were made to ease the boys' ordeal in that Preston court - by showing them the courtroom in advance of the trial, by raising the dock for them, and by keeping to short school hours. Nor does the judge, Michael Morland, deserve censure: kindly in manner throughout (except when mimicking the boys' Scouse accents in his summing-up), he also meant well at the end of the trial when he decided that Boy A and Boy B could now be identified instead of remaining shadowy killers. But justice does not consist of good intentions. The pre-trial familiarising visit was sabotaged by a Sun photographer, who caught one of the boys sucking a lolly, "as though he did not have a care in the world". The short days dragged the trial out much longer than needed, to four weeks. The raised dock, in the view of Strasbourg, made the boys feel more exposed. The media investigation which followed after Thompson and Venables were named at the end of the trial went little further than headlines of the "Evil Monsters" and "Freaks of Nature" variety.
Thanks to Strasbourg, and to the campaigning of legal reform groups in Britain, it is possible to imagine a very different trial from the one that took place in 1993. No jury, to start with. In theory, the presence of a jury guarantees impartiality and independence. But the nine men and three women who sat as jurors in the Bulger case suffered appalling levels of stress (those exhibits of bricks and bars, those photographs of James Bulger's injuries, those taped interviews of Thompson and Venables weeping as they were interviewed by the police), and felt to be under duress from an agenda of public retribution: the boys were to be found guilty and made an example of - that was what nation and government expected. Within a year, the foreman of the Bulger jury had come to regret that verdict. "We should have gone back into court," he said on the radio, "and said yes, we do have a verdict: our verdict is that these boys are in urgent need of social and psychiatric help."
Second, experts in child dysfunction and development drawn from various professions - psychiatrists, social workers, police officers, teachers, lawyers - must form part of the trial process. The experts appearing at the Bulger trial were not allowed to use their expertise. All they could address was whether the boys knew right from wrong - a tricky matter in relation to 10-year-olds, who can be simultaneously streetwise and deeply naive, and whose notion of death is formed chiefly from television. The fact that Thompson and Venables received no treatment for their post-traumatic stress disorder in the nine months between killing James Bulger and standing trial is a disgrace. It was held to be "prejudicial". Indeed so, for what it meant was that they were too distressed to talk about the crime in any meaningful way and could not instruct their lawyers, who were told to plead "Not guilty" without being given a rationale for doing so.
Lastly, the media must be excluded - or perhaps just one responsible pool reporter given access. The press likes to think its presence in court means justice will be seen to be done. Perhaps with adults, that is true. Not so with children, as Strasbourg has ruled. A closed court doesn't mean greater leniency. But it does mean that the eventual rehabilitation of a child offender can become a paramount issue - which a lynch-mob tabloid press will never allow.
Six years on, the Bulger case remains traumatic for many people. My only role was as an onlooker in court, but I don't think I'll ever get over it. Until last week, few wanted to hear what those of us with misgivings wanted to say. Now Strasbourg has moved on the discussion. I hope Jack Straw will listen - and change his tune.
Join our new commenting forum
Join thought-provoking conversations, follow other Independent readers and see their replies