Reporting restrictions and the James Bulger murder – David Burrows

7 March 2019 by Guest Contributor

In February 1993, two-year-old James Bulger was abducted, tortured and then murdered by two 10-year-olds, Jon Venables (JV) and Robert Thompson. As Sir Andrew McFarlane P says in the opening words of Venables & Anor v News Group Papers Ltd & Ors [2019] EWHC 494 (Fam) (4 March 2019): ‘The family of young James Bulger were and are deserving of the greatest sympathy as the indirect victims of this most horrific crime.’ It was James’s father and his uncle who brought the question of publicity – or not – for JV back to court.

Their application was to vary a ‘confidentiality’ injunction. The application was made on the basis – said the applicants – that JV’s name and image are now freely available should any member of the public undertake an Internet search. Details of his identity, and locations with which he has been connected in the past, have therefore become ‘common knowledge’.

JV, with Robert Thompson, was convicted in November 1993 of James Bulger’s murder. They were sentenced to be detained during Her Majesty’s pleasure. At that time injunctions were granted to restrain publicity as to their circumstances and throughout their childhood. When they reached 18 (in August 2000) both applied to extend their anonymity injunctions on into their adult life. That application was contested by a number of media agencies.

Confidentiality injunction

The applications for reporting restrictions and anonymity received extensive consideration by Dame Elizabeth Butler-Sloss, then President of the Family Division. In Venables v News Group Newspapers Ltd [2001] Fam 430 she granted wide-ranging orders which were highly restrictive of publicity. The order was to run indefinitely. It prohibited publication of any depiction of either of JV and Thompson or any description of them, their voice or physical appearance; of any information which might lead to any new identity they might assume being discovered; or of any information as to their whereabouts. The order was not appealed against by any of the media who had opposed it.

In making the order, Dame Elizabeth considered that if no order had been made then, on their release, the men would be pursued by those intent on revenge. This was sufficient for her to believe their lives were threatened (European Convention 1950 Art 2) or that they were in danger of torture (Art 2). There was therefore sufficient evidence for her to find that there was a strong and pressing social need for their ‘confidentiality to be protected’. She regarded this as part of the developing law of confidentiality derived from a person’s right to respect for their private life (Art 8).

Application for variation of restrictions on publicity relating to Jon Venables

The present case relates to JV only. He had been released on licence in February 2010, but was recalled when child pornography was found on his computer. He was prosecuted, and when sentenced Bean J was asked to review the injunction. By then JV had assumed a new name; and Bean J was asked to protect him in that name. He did so on grounds arising from Art 2 and 3; or he said, he would have reached the same conclusion by application of ‘domestic law’ (para [10).

Bean J continued the 2001 order.  JV was released again in 2013, but his offending recurred. He returned to prison, and remained on licence. The father and his brother made their application in the context of JV’s re-offending and of the need, they said, for the public to be protected and to know when JV was not in prison.

The Attorney-General appeared at the invitation of the court. He argued that it was in the interest that the injunction remain in place, as did JV himself. The Attorney-General drew attention (para [31]) to the exceptional nature of the case and to the need for the court to act compatibly with the variety of European Convention 1950 rights engaged by the application. He stressed that Arts 2 and 3 are at the top of the ‘hierarchy of rights and freedoms’; and that they are unqualified.

Human rights balance

Sir Andrew summarised the human rights balance, as he saw it, as follows:

[36] … A balance must be struck between the competing rights of the applicants [Mr Bulger and his brother] and the wider public, which are in favour of openness and transparency, against those of JV. If JV’s rights under Article 2 and/or Article 3 of the ECHR are at risk of being breached, that factor is not a trump card and it remains necessary for the court to strike a balance as against the Article 10 rights of the Applicants and others.

The purpose of the injunction was ‘to protect JV being put to death’. He is, as Dame Elizabeth had said, ‘uniquely notorious’. So, concluded Sir Andrew:

[66] … There is a strong possibility, if not a probability, that if his identity were known he would be pursued resulting in grave and possibly fatal consequences. This is, therefore, a wholly exceptional case and the evidence in 2019 is more than sufficient to sustain the conclusion that there continues to be a real risk of very substantial harm to JV.

Sir Andrew found ‘there is a profoundest sympathy’ for the applicants; but their ‘basic premise’, that the injunction should be varied (save in minute detail) was not made out on the evidence they had put before the court (para [53] and [71]).

Anonymity and the law

The general rule is that those who appear before the courts do so without expectation of anonymity, even if – perhaps harshly – they are the subject only of police inquiries (Khuja v Times Newspapers Ltd [2017] UKSC 49 (19 July 2017), [2017] 3 WLR 351). Children and those who lack capacity (Mental Capacity Act 2005) can expect anonymity. In A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558 (a case considered by Sir Andrew) the anonymity of a man was ordered to be protected where he was to be deported. He realistically feared victimisation and worse when he returned to his country of origin.

Lord Reed set out the general open justice principle; but then went on to explain:

[29] Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott [(above)], in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it… [Another example] of greater relevance to the present case, was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice.

Venables, with its reliance on the exceptional rights defined by Arts 2 and 3, sets up one of the compelling justifications for departure from open justice and the resultant restriction on freedom of information (Art 10).

David Burrows is a solicitor advocate, trainer and writer.