Justice for Jon Venables

James Bulger's mother demands Jon Venables faces justice

The mother of James Bulger has demanded that her son’s killer must face justice
amid fears that he may escape charges over the alleged possession of child
pornography.
http://www.telegraph.co.uk/news/uknews/crime/7442553/James-Bulgers-
mother-demands-Jon-Venables-faces-justice.html

I too hope that the prisoner formerly known as Jon Venables gets justice. I suspect
that what I would see as justice for him is not the same kind of justice that
Denise Fergus is seeking. In my view, Denise Fergus’ input to the process
should have ceased following the public trial of Jon Venables and Robert
Thompson. The matter is taken out of her hands and dealt with on her behalf by
the State. The reason being so that the scales of justice are balanced. There have
been moves to so-called rebalance in favour of victims of crime; however, such
tinkering with the scales of justice creates both an imbalance and another
victim.

The secrecy and legal issues surrounding this case make it all the more interesting.
The Ministry of Justice position is that Jon Venables is governed by Prison
Service Order 4700 – Indeterminate Sentence Manual. In particular, Chapter 13,
Release, Supervision and Recall. Formerly called the Lifer Manual, it has no
legal status (see Becker v Home Office) and there is a danger that Jon Venables
lawyers may challenge all the way up to the Supreme Court and then the
European Court of Human Rights. Based on the Manual, if it is being alleged
that Jon Venables has committed a criminal offence, the MoJ has the option of
going for trial and/or dealing with the case via the Parole Board.

For arguments sake, if it is a case of possession of child pornography and the

maximum sentence available to the court is 18 months imprisonment, then Jon
Venables may be at a disadvantage if he were to be dealt with by the Parole
Board and his recall upheld because he would be likely to be facing 2 years
before his next Parole Board hearing. It is possible for the Parole Board to
recommend a review earlier than 2 years, however, the power rests with the
MoJ to reject such a recommendation. If the reasons for rejecting the
recommendation appear to fall foul of accepted legal principles, then the MoJ
decision is susceptible to judicial review.

Jon Venables has the benefit of being a high profile case. For example, a low profile
case and poor legal representation can see a recalled lifer stuck back in the system for
10 years or longer! There is also a disadvantage in a high profile case, the system
seeking to appease those clamouring for Jon Venables’ blood. It is a difficult
balancing exercise for the Parole Board, and the scales are weighed in favour of
public protection against the rights of the recalled lifer. The test which the Parole
Board must apply is the Benson/Bradley Test which is based on risk to life and limb.
When Jack Straw made his statement in the House of Commons, he was asked for an
assurance that no person has been killed or seriously injured as a result of the
allegations that are being investigated. Straw said he had seen no evidence to suggest
that is the case. This would indicate that Jon Venables continued detention cannot be
justified, and it is likely that the Parole Board will direct that he be re-released.

According to the Manual: “Immediate recall will be appropriate in cases where the
licensee’s behaviour presents an immediate risk of sexual or violent harm to others,
regardless of the type of index offence for which he or she was originally convicted.
That risk does not have to be based on the licensee being charged with any criminal
offence”. Mere possession of child pornography does not necessarily mean that the
offender will go onto sexually abuse children. What adds a complication is that Jon
Venables, along with Robert Thompson, was convicted of the murder of 2 year old
James Bulger. Apparently, it was neither raised or if raised not established that there
was a sexual element as a motive. However, the Parole Board operates on the basis of
a future potential victim. It is called Incapacitation Theory. Professor Andrew
Rutherford in Prisons and the Process of Justice states: “The advocates of
incapacitation, selective or general, attempt to dodge the predicament, posed by Lewis
Carroll’s White Queen, of punishing people for crimes they have not yet committed”.
In other words, it amounts to Thought Crime. If the Parole Board thinks the worst, the
recalled lifer could be in a lot of trouble and it will need all the skills of an
experienced prison law solicitor/barrister to change the minds of the Parole Board.

The concept of public interest can sometimes be rather hazy. According to section
32(2) of the Crime Sentences Act (!997) “The Secretary of State may revoke the
licence of any life prisoner and recall him to prison without a recommendation by the
Parole Board, where it appears to him that it is expedient in the public interest to
recall that person before such a recommendation is practicable”. This might mean
simply exposing his true identity, which means managing his risk in the community is
compromised by this breakdown in supervision. For example, it could lead to Jon
Venables being attacked and him causing serious injury or death to someone else as
he defends himself. It maybe that he will be re-released if the Parole Board is satisfied
that his Release Plan accommodates the breakdown in supervision.

I have read somewhere that when the Bulger killers were released with new identities
this included being issued with passports. However, I would be very surprised if this
was the case. Especially, given that under the Manual a released lifer is not allowed to
go abroad without first seeking the permission of the authorities. This permission is
rarely permitted and requires exceptional circumstances. For example, I was allowed
to go to the European Court of Human Rights in Strasbourg. The problem for the
authorities is that no other country in Europe has a life licence scheme. In Europe,
once a lifer is released from prison that is the end of their sentence. In this country,
the life sentence continues in the community. It’s like being attached to a elastic band,
which can be yanked back at anytime. If a released lifer decided to go abroad, because
the life licence is not recognised by any other jurisdiction he would not be in danger
of being arrested and returned to this country. However, if he then returned he would
be arrested for being in breach of a life licence condition and recalled to prison. There
is a danger that Jon Venables lawyer might challenge the life licence scheme as being
a breach of human rights.

There is also a sense that the Parole Board is, in effect, re-sentencing behind closed
doors. In the present climate, I doubt that Jon Venables will get justice. Denise Fergus
has said she will not be contented until both killers stay in prison until they rot. So, it
is unlikely she will get what she calls justice either. The only winners are the lawyers!