The trial and subsequent convictions of Robert Thompson and Jon Venables for the murder of two-year-old James Bulger in 1993 attracted unprecedented publicity and notoriety. However, the dismay felt by the public was not solely because of the nature of the offence itself. Part of the horror felt towards the boys was due to the fact that they were only ten years old at the time of the offence.
The attention the case attracted did not stop when Thompson and Venables were sentenced. Proceedings following the trial, including an appeal to the European Court of Human Rights (ECtHR), have meant Thompson and Venables have never been far from the media spotlight.
The appeal to Europe on the issue of sentence
The boys were aged 11 when they received an indeterminate sentence of Detention at Her Majesty’s pleasure with a minimum term of eight years. They were sent to Secure Children’s Homes, the place of detention for children who have committed serious offences. One of the arguments that Thompson and Venables brought before the ECtHR was that their subjection to an indeterminate sentence violated their rights under Article 3 of the European Convention on Human Rights (ECHR), which prohibits inhuman or degrading treatment.
The Court held that, despite their age, an indeterminate sentence did not breach Article 3.
Both applicants argued that their sentences breached their Article 3 rights because they were indeterminate in nature. In other words, each boy was set a minimum term which they had to serve, but had no automatic right to release upon expiry of this tariff. In theory, therefore, the boys could have spent the rest of their lives in custody.
The Court held that, despite their age, an indeterminate sentence did not breach Article 3. The Court noted that the age of criminal responsibility in England and Wales (ten years old) was not significantly lower than the age of responsibility in other state parties of the ECHR. Similarly, a sentence with a punitive element (a tariff) cannot be said to amount to degrading treatment, whether imposed on an adult or a child.
However, the decision that there had been no violation of Article 3 with respect to the applicants’ sentence was not unanimous. Rather, it was a majority of ten votes to seven. Whilst the Rules of Court do not state that decisions must be unanimous, the fact that in this case it was not unanimous is significant when considering whether subjecting children to indeterminate sentences breaches Article 3 of the ECHR. That the decision was not by an outright majority suggests that there is no distinctive intuition as to whether it is right that a child is locked up for a potentially indefinite period of time.
Indeterminate sentences are those whereby the offender has no automatic right to release. A minimum term is set which stipulates the minimum amount of time an offender must spend in prison before he can be considered for release. When he is considered for release, even though the minimum term has expired, the offender may be detained for many more years if he is still considered to pose a risk to the public.
When will a prisoner sentenced to an indeterminate sentence be released?
The test for release is whether the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. When the prisoner is eligible for a Parole Board review, he will only be released if this test is satisfied.
When considering release, the Board will take into account, amongst other factors: the nature of the index offence, whether the individual has made positive and successful efforts to address the attitudes and behavioural problems which led to the offence, and his attitude towards other prisoners and staff. There are a range of Offending Behaviour Programmes available in prisons and Secure Children’s Homes which aim to reduce reoffending and, ultimately, risk. Many of these programmes seek to explore and address offending-related thought patterns and beliefs. Young people under the age of 18 who are detained at Her Majesty’s Pleasure and who are subsequently incarcerated in a Secure Children’s Home, like Thompson and Venables, will undertake some of these programmes in an effort to address their attitudes and risk.
Adults who are given an indeterminate sentence know that in order to have a realistic prospect of release they must do certain things to address their offending behaviour. They know that they must address their risk factors and engage in sentence planning. Can a child, particularly a child of the age that Thompson and Venables were at the time of sentencing, realistically be expected to have this level of insight and understanding?
Can children address their offending behaviour in the same way as adult offenders?
Whilst eligibility for most offending behaviour courses is not dependent on an admission of guilt, the ability to successfully engage in these courses is dependent on the ability to confront offending behaviour. If an offender cannot challenge and address thoughts and behaviour patterns, it follows that he cannot demonstrate a reduction in risk to the Parole Board’s satisfaction.
Indeterminate sentences are those whereby the offender has no automatic right to release.
A recent study from Claremont University in California suggests that when children are asked a question relating to a past experience, particularly of witnessing a criminal act, they are much more likely than adults to add a speculative response to what they believe is their real memory (see References below). This phenomena, known as ‘forced confabulation’, contaminates the child’s memory. If this finding is true, children cannot be expected to engage in sentence planning and risk reduction in the same way adults can. Children cannot experience the memory of their index offending in the way adults do and so cannot address it in the way adults can. Therefore, it can be argued that it is not right that children are potentially liable to indeterminate sentences in the way adults are.[nrelate-related]
Although the ECtHR declared that the ECHR does not prohibit nations from sentencing a child to an indeterminate period of detention, the question that arises is whether or not this is right considering the recent developments in child developmental psychology.
One of the psychiatrists who assessed Venables throughout the trial proceedings observed the following when he was informed of the minimum term:
[Venables] made comments that he would never be let out and had a preoccupation that he was like Myra Hindley. He felt that his life was no longer worth living and there was no point going on.
If a child feels there is ‘no point going on’, how likely is he to engage in sentence planning, an exercise which seeks to prepare for life outside custody? If the theory of forced confabulation is a plausible one, perhaps the solution to the problem of children and indeterminate sentences lies in setting fixed dates for release, but with increased and intensive supervision upon release. It does not seem fair that children are capable of being subjected to the same sanctions adult offenders are, but without the necessary emotional maturity and psychological resources to engage in sentence planning to secure their future release in the way adults can.
Rebecca Broadbent is hoping to specialise in prison and release law.
-  Lam, S., Pezdek, K., Sperry, K. Forced confabulation more strongly influences event memory if suggestions are other-generated than self-generated. Legal and Criminological Psychology (2009). This article can be found at: http://www.cgu.edu/PDFFiles/sbos/Pezdek_Confabulation.pdf.
 Stolzenberg, S., & Pezdek, K. Interviewing child witnesses: The effect of forced confabulation on event memory. Journal of Experimental Child Psychology (2013). This article can be found at: http://dx.doi.org/10.1016/j.jecp.2012.09.006