Magazine article The Spectator

The Murder of Children Could Threaten the Independence of the Judiciary

Magazine article The Spectator

The Murder of Children Could Threaten the Independence of the Judiciary

Article excerpt

Principles can resolve even the most difficult questions, such as the Bulger case. Once we fight down our horror and consider what should be done with the murderers, there is a simple answer. They were tenyear-old children when the crime was committed. Though one could argue about the sanctions which should be applied to tenyear-olds, they do not include adult imprisonment, let alone life imprisonment. Thompson and Venables required, not a tariff of punishment, but a course of treatment.

If that treatment revealed an irredeemably psychopathic nature, then long - even life-long - confinement would be necessary. But that does not appear to be the case. The boys have been scrutinised, by sensible persons as well as by psychiatrists, and they appear to have flourished in captivity. (It is a grim reflection on our times that the only way in which children from the dregs of Liverpool can acquire a decent education and upbringing is by killing one of their fellows.)

So we should side with the judge of first instance, who set an eight-year term, and with Lord Woolf, who restored it. This ensured that the boys would be treated in secure units but spared the horrors of the prison system, which might well have undone those units' good work. Though both Michael Howard and Lord Taylor, the then Lord Chief Justice, favoured longer terms, that would not have been the right way to deal with ten-year-olds, even though they had committed murder.

Another principle has been introduced into the debate: that sentencing should be left to judges, with politicians excluded from the process. At first glance, this seems reasonable: the separation of powers between the executive and the judiciary is a cornerstone of the rule of law.

But history should enjoin caution. In what used to be known as capital cases, that separation was never applied. As long as there was a death penalty, the Home Secretary was the final court of appeal; he alone decided whether a murderer should hang or be spared. There is a similar procedure in the United States, although the separation of powers is a basic constitutional doctrine. But state governors still have the final say on execution or reprieve. In both jurisdictions there has been a tacit acceptance that life-or-death questions are political as well as judicial.

In Britain, this still seemed to apply even after the abolition of capital punishment. Judges might no longer have to reach for the black cap, but they had no greater discretion in sentencing murderers; the mandatory sentence was life. The judges could recommend a tariff, but this was never seen as binding. In effect, the trial judge was announcing that the murderer in front of him should serve a given number of years as retribution for his offence. Once that tariff had expired, the relevant authorities could decide whether he was fit to be released. But the sentence was life; the tariff, merely a suggestion. As such, it was never binding on home secretaries. Murderers were not released because they had served their sentence, but as an act of clemency - and provisional clemency at that. Freed murderers are subject to reimprisonment by executive fiat; a life sentence only expires with life itself.

The judiciary now wish to alter these arrangements, and will use the Human Rights Act in order to do so. For some years, most senior judges have been in favour of abolishing the mandatory life sentence, so that the tariff would actually become the sentence. …

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