Hard cases make bad law – but they also can force us to reassess our values. Perhaps the hardest case of the past 20 years, in terms of its profound social impact, was that of the trial and conviction of Robert Thompson and Jon Venables for the killing of toddler James Bulger. The case still horrifies society in Britain and internationally, and the recent frenzy around the re-committal of the 27-year old Venables to prison continues to pose troubling questions about the capacity of children and how society can respond to the unthinkable crime.
Kathy Sheridan’s thoughtful and provocative article in The Irish Times (13 March) brings a welcome reflective perspective to the issue. By moving beyond the hysteria or the tabloid and ‘mob’ dynamic of the case, she raises serious questions about the role of the victim in the criminal process.
IPRT, along with our colleagues in the Irish Council for Civil Liberties and in a range of victim representative bodies, believes that there is great capacity for an enhanced role of victims in the criminal trials and in pre-trial and post-trial contexts. However, the recent political focus in the UK on public statements by Denise Fergus (James Bulger's mother) in the Venables controversy points to the dangers of allowing a victim’s perspective dominate punishment.
If we believe in a dispassionate, fair and objective system of justice, then we are deliberately distinguishing criminal justice from vengeance. In such a system, the victim of a particularly heinous crime is precisely the person who should not determine the punishment.
The difficulties presented by victim-centred system of punishment were the subject of fictitious depiction in the tv series ‘The West Wing’, where Martin Sheen's President is challenged on his opposition to death penalty. When asked about how he would feel about if his child was killed, Sheen concedes that in such tragic circumstances, he would want the greatest punishment possible. But he goes on to state that, it is that personal urge for punishment which is precisely why a victim should not get to make the decision about punishment.
The trial process is explicitly insulated from political or outside interference - but the area of recalling prisoners on licence or determining release dates for convicted persons is much more vulnerable to such influence, as it lies in the hands of government ministers. Here, the potential for decisions being made on the basis of the prevailing public opinion is much greater than in the Court of Law.
The real challenge of a hard case like that of Thompson and Venables is that it tests whether our principles of respecting children's rights are strong enough to encompass the worst case scenario in either of those processes. Echoing much of Kathy Sheridan's analysis, English journalist David Aaronovitch in the London Times answers that for Britain, unfortunately, the answer seems to be no.
As we embark on a national debate about children’s rights in this jurisdiction, how does our commitment to treat children as children sit with our capacity to condemn children as “evil” or beyond redemption? And how far should we go and how far are we willing to go to understand why a small number of children commit serious crimes? Aaronovitch and Sheridan point to two different approaches we can take when faced with such a case.