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- The Observer,
- Sunday February 25 2001
In any case, it is far from clear whether the letters are genuine. The Sun cannot authenticate them. The handwriting varies wildly from one note to the next. Thompson's solicitor has said they may be faked. But even if they were not, what would they tell us? That the author is part-child, part-would-be sophisticate and likes girls, slang and laddish bragging. How unsurprising. Correspondence between normal teenage boys, whether their chosen medium is Basildon Bond or a text-message, is rarely suitable for the delicate sensibilities of Sun executives. In terms of epistolary finesse, we are not talking Maud Gonne and W.B. Yeats here.
But the point about Robert Thompson is that normality would never suffice. Those who deplore his likely release regard any evidence, however erroneous, that he is not now an overgrown Christopher Robin to be proof of monsterdom and justification for a campaign of vilification. The freeing of Thompson and Jon Venables will take them, and us, into unmapped territory. No one knows how well equipped they are to deal with an emergence more traumatic than a second birth. The one certainty is that poisonous news coverage will make everything worse.
The Sun, however, is not the only culprit. Nor is the Sunday People , whose recent, bogus story that Thompson had been involved in a fight was based on forged documents. The mood, fostered at the Home Office, for victim-centred justice has played a part in ensuring that spurious authority is increasingly vested in the bereaved. When Sarah Payne's mother attended court last week to see the man accused of murdering her child, newspapers reported how her eyes 'bored into him', as if that expression was so powerful a determinant of (unadmitted) guilt that one might just as well dispense with a judge and jury. Equally, the assertions of James Bulger's parents that their son's killers must not be released are deemed to trump the law by those who think the boys have served a paltry sentence.
And so they have, according to Michael Howard, who applied a crowd-pleasing tariff of 15 years. Although that decision was deemed illegal and 'well below the standards of a court', the notion lingers that doing the eight years recommended by the trial judge was only half a punishment. Given the hate offensive unleashed by Howard's grandstanding, it is fortunate that the Human Rights Act now precludes Home Secretaries from meddling with judges' decisions on minimum sentences for juvenile killers.
How satisfying it would have been if Jack Straw had last week been stripped of his power to set tariffs for adult murderers. Instead, three High Court judges 'reluctantly' upheld the Home Secretary's right, while allowing the test case brought by two killers to move on to the House of Lords. There it seems likely, if not certain, that Straw will lose. Scotland, Northern Ireland, Canada and Australia have decided that judges, not politicians, should have the last say on sentencing. Here, the Home Secretary has ceded the power to set tariffs for discretionary lifers as well as for children. Given those precedents, the Lord Chief Justice has signalled that Straw's stance on adults will prove legally wrong.
It is a pity that macho politics have prompted Straw to fight a campaign which is of comfort chiefly to those who warn that the moment judges have carte blanche, 'evil' Myra Hindley will be out. And about time too. Hindley has now served 35 years, a decade longer than her original tariff. Of course, her crimes remain loathsome, but the measure of a decent society is its ability to extend justice to those it may deem reprehensible. Imprisoning people for political expediency, or to slake public bloodlust, is for despots and barbarians. The sooner the judges get their way, the better.
But a more powerful judiciary also needs checks and balances. Today's leading judges, liberal and progressive, are all for a bit of new broomery, as long as it is not in their back yard. There will, for instance, have been little wig-waving euphoria over cries for the post of Lord High Chancellor (Derry Irvine's preferred title) to be abolished. Judges shrink from change, even to a Hydra-headed monster of a job whose incumbent is supposed to be judge, legislator and executive simultaneously, while, in Irvine's case, can-rattling and running a Puginesque version of Changing Rooms on the side.
Lord Woolf, number two in the judicial hierarchy, is thought to regard the Irvine row as 'most unfortunate', a view some would construe as euphemistic shorthand for rage at the Lord Chancel lor's stupidity in provoking calls for an independent commission to appoint judges and a Ministry of Justice. On the latter point, scepticism is the right response. If a lesson of the Irvine affair is what happens when judicial and political powers clash, why create a Ministry to engineer just such a collision? Besides, we already have a Justice Ministry, fabled for its quick-fix laws and tough tactics. It is called the Home Office.
An independent commission, however, is vital. It is not good enough, in an age when the judiciary grows more powerful, for judges to assert that they are decent, hard-working meritocrats committed to changing a structure in which 11 per cent are women and 1.7 per cent from ethnic minorities. The watchword is 'evolution', and the difficulty is that if Darwinism had moved at this pace, the Royal Courts of Justice would be presided over by amoebas in wigs. None the less, Derry Irvine has back-pedalled on a commission. His feeble claim during his non-apology that he had not 'closed his mind' reinforced the pantomime horse impression of a Lord Chancellor whose front end appears not to know what the back end is doing.
Political when he ought to be judicial and judicial when he ought to be political, Irvine appears to be guarding his own supremacy while siding with judges who have yet to realise that the powers conferred on them by the Human Rights Act demand a payback in accountability. But for the Lord High Chancellor, who has slithered free of last week's crisis, the real flashpoint is still to come.
It seems likely, even inevitable, that the House of Lords will soon strip the Home Secretary of his remaining tariff-fixing powers. Lord Irvine has said that, in rare cases, taken to mean those of Hindley and other 'untouchables', the Government may refuse to comply with judges' rulings. Woolf has indicated that such tactics would be unthinkable. The scene is set for a constitutional battle that may make the Lord Chancellor's dinner money collection look like very small potatoes.
