The Sleep of Reason: The James Bulger Case

by David James Smith

  At twenty to eleven, Morland said, ‘Let the defendants be brought up.’ Bobby and Jon emerged from the cell area below the court, up a row of steps leading into the dock. They were led by a bullet-headed prison warder with tattoos on his arms. There were four chairs on the nine-inch raised platform. Jon took the first and his case worker the second. Bobby’s case worker took the third chair and Bobby the fourth. Later that day Bobby and his case worker swapped seats. Boy, adult, boy, adult. And, with one exception, these were the positions they kept for the duration of the trial.

  The judge spoke to the boys. ‘Are you Robert Thompson?’ Bobby held up a finger, as if he was answering the register in class. ‘Are you Jon Venables?’ A nod from Jon.

  It was immediately apparent that the benefit of the raised platform on the floor of the dock was double-edged. It gave the boys a clearer view of the court. It also gave the court a clearer view of the boys, raised up in the brass-railed dock like a pair of caged animals, where they could and would be subjected to the most intense scrutiny.

  Both boys had grown, upwards and outwards, since their last public appearance in a court. They looked significantly older, and bulkier, than 37 weeks ago when James Bulger had been killed. Jon, puffy-faced and anxious, as if he was between tears, wore black trousers and a black jacket with two vents. Bobby, his head newly shaven, looked dressed for school, and was indeed wearing his school tie under a grey V-necked sweater. His neck was crammed into a size 14 shirt. His counsel suggested, privately, that he had the appearance of a butchers boy, and someone recommended the purchase of some bigger shirts. Tomorrow Bobby would be in size 15–

  Bobby began as he evidently intended to continue, giving nothing away if he could help it. His face revealed no sign of distress, anxiety or any other emotional reaction. This was to be swiftly interpreted as the impassivity of an unfeeling psychopath, or the boredom of indifference.

  The boys had been followed up the stairs by Neil and Susan Venables. Ann Thompson had not come to court, because she could not cope with the thought of being there. She was severely stressed, was taking a cabinetful of pills, and had recently begun seeing a psychiatric nurse. Talking to the nurse had brought all the pain in her past to the surface.

  All three parents had sought the support of Aftermath, a voluntary group set up to help the families of those accused of serious crime. Aftermath had tried to bring Ann and Neil and Susan together but, as with their sons since the arrests, there was more mutual antipathy between them than any sense of shared suffering.

  Neil and Susan could not sit in the dock with their son and walked out of it, through a gate, following the aisle that ran the length of the court in front of the public gallery. They walked round to the far side of the dock, and sat in a pew next to Jon, where Aftermath’s Shirl Marshall was waiting to take Susan’s hand in hers.

  Their walk had taken them past the front left row of the public gallery which was filled with members of the Bulger family, including James’s father, and flanked by the family liaison officers from Merseyside Police, Jim Green and Mandy Waller. Neil and Susan Venables, he in a grey flecked suit, she in funereal black, kept their eyes to the floor. They sat down, shoulders hunched over, heads bowed, Neil’s face drawn skeletal tight. They exuded an aura of abject humiliation and shame.

  There were 48 seats in the public gallery, and only eight of them allocated to the Bulgers. It was not always full, but there would usually be only a scattering of empty seats. Many were taken by foreign journalists and assorted members of the British media who were passing through. Others went to law students, lecturers, curious Preston people and a young man from London who’d had a difficult childhood and was thinking of writing a novel based on the case.

  The gallery was separated from the rest of the court by an iron rail. After the rail came the aisle, and after the aisle a long central pew of press seats which backed on to the dock. To the left sat the Merseyside Police, Albert Kirby and Jim Fitzsimmons in the front row on a cushion which Jim carried to and from the court every day.

  Behind Neil and Susan, on the immediate right of the dock, sat three representatives of Liverpool City Council Social Services. In front of Neil and Susan were defence solicitors and their clerks, and, in front of them, two long rows of pews, with junior and leading counsel for the prosecution on the left, Bobby’s counsel in the middle, and Jon’s on the right.

  There were more press seats on the far right and, in front of these, facing sideways into the court, the jury box, which was three rows of tiered pews. In front of the jury box were two short pews which were the last six seats of the court’s allocation to the media — 38 in all. These six were to be the most sought-after location; the only seats with a full frontal view of Bobby and Jon, from where it was possible to take notes of their every twitch and fidget.

  The jury box faced the witness stand, across the court. Between the box and the stand was the court’s clerk, facing the dock, and towering over the clerk was the high bench, running the length of the court, behind which, in an even higher chair with an enormous back, sat the judge. The judge sometimes had his own clerk sitting near him for company and assistance with handling files. The judge’s clerk swore in some of the witnesses. He had a booming Scottish accent and a thick beard. He was a dead ringer for James Robertson Justice in the Doctor films.

  Dotted around the front of the court were microphones, loudspeakers and video monitors. These high-tech accoutrements sat uneasily amid the oak-panelled archaism of the court. It was only ninety years old, but it could have been centuries.

  Preston’s judicial worthies of times past were depicted in a series of full-length portraits around the walls of the court. Henry Wilson Worsley-Taylor, KC, MP; Sir Harcourt Evarard Clare, Kt; Thomas Batty Addison (‘the terror of the criminal’)… any one of these might have been the berobed fellow beneath the wig trying Bobby and Jon.

  The jury, chosen at random from Preston’s electoral roll, was sworn in without challenge. There were nine men and three women, all white and predominantly middle-aged. A couple were younger men, and only one did not appear to have dressed for the occasion. There was a straight-backed, silver-haired chap in a smart blazer with a breast-pocket handkerchief. He looked like a jury foreman.

  Once sworn, they were dispatched to the jury room, so that the judge could hear applications from counsel. Bobby’s QC, David Turner, rose to address the judge, to argue that the trial should be abandoned.

  TURNER, David Andrew; QC 199; a Recorder of the Crown Court, since 1990; b 6 March 1947; s of James and Phyllis Turner; m 1978, Mary Christine MofFatt; two s one d. Educ. King George V Sch., Southport; Quens Coll., Cambridge (MA, LLM). Called to the Bar, Gray’s Inn, 1971; Asst Recorder, 1987—90. Recreations: squash, music. Address. Pearl Assurance House, Derby Square, Liverpool L2 9XX. T: 051–236 7747. Club: Liverpool Racquet.

  In the language of the law, Turner was making an abuse of process application. He was, he said, seeking a stay of proceedings because a fair trial of these defendants was now impossible. The abduction and death of James Bulger had led to what could only be described as saturation coverage in the media. The reporting of the early stages had gone far beyond the usual reporting of a criminal case. This was because the public had been asked to become deeply involved in the investigation itself, highly emotive language had been used in articles, and the case had coincided with a government initiative on the treatment of young offenders, and become part of a public debate.

  Turner said that abuse applications usually resulted from a delay in the proceedings reaching court. He referred to the summary by Mr Justice Garland in the case of three police officers who had been charged with misconduct over the Birmingham She inquiry. Though delay had been the principle issue in that case, Garland’s summary had suggested that publicity alone could be a free-standing ground for appeal. The burden of proving unfairness rested on the defendant. It was a matter to be decided on the balance of probabilities.

  Turner said
he would contend strenuously that the volume, nature and quality of the national publicity was so powerful as to make a fair trial impossible. There were four categories of publicity: first, when an editor expressed an opinion of guilt by headline, comment or innuendo; second, publishing an express view of a politician or church leader that the defendants were guilty, or establishing that as the only inference that could be drawn from the article; third, publishing material that was wrong, misleading or prejudicial; and, fourth, publishing sensational or highly prejudicial material.

  Turner went on to cite examples of each from a file of 243 copies of articles from national newspapers. It was not, he said, an exhaustive compilation: What sort of monsters could do that to a child; new police pic shows evil lads who murdered toddler; crime beyond evil; how killer children are caged. There were references to leaders in The Daily Telegrafkx and The Times. There were quotes from Kenneth Baker and the Archbishop of Canterbury. There were inaccuracies such as James being tossed like a toy and being dragged screaming and bleeding to his death. It’s them, The Star had said before the boys were charged. The Express had reached the mother of the child the boys had allegedly attempted to abduct and had her saying, they nearly slaughtered him as well.

  Turner said that after this barrage of publicity, much of it prejudicial, it would be impossible to have a fair trial.

  Many people in court had not anticipated this application. The litany of quotations from and references to articles gave considerable substance to his argument. Albert Kirby was soon sitting forward, resting his elbow on his knee, chewing his nails. It was unthinkable — wasn’t it? — after all this time and money and effort, that the trial should end before it had begun.

  Jon’s QC, Brian Walsh, stood to support the application. He had been ill before the trial and at one stage his junior counsel, Richard Isaacson, had been going to take over. The judge had said this was not a case for a junior counsel. Walsh had undergone an unpleasant operation with a local anaesthetic, and recovered in time to appear.

  WALSH, Brian, QC 1977; a Recorder of the Crown Court, since 1972; b 17 June 1935; er s of late Percy Walsh and Sheila (née Frais), Leeds; m 1964, Susan Margaret, d of late Eli (Kay) Frieze and of Doris Frieze; two d Educ. Sheikh Bagh Sch., Srinagar, Kashmir; Leeds Grammar Sch. (Head Boy 1954); Gonville and Caius Coll., Cambridge (BA, LLB; MA 1992). Pres. Cambridge Union Soc., 1959. Served RAF (Pilot Officer), 1954–56. Called to the Bar, Middle Temple, 1961 (Blackstone Scholar, Harmsworth Scholar); Bencher, 1986. Joined North Eastern Circuit, 1961; leader, 1990—. Member: Circuit Exec. Cttee, 1980—; Gen. Council of the Bar 1982–84 and 1990—; Mental Health Review Tribunal, 1986— Member: Court, Leeds Univ., 1988–; Cttee. Yorks CCC 1984— (Chm. 1986—91); Governor: Leeds Grammar Sch. 1977—; Leeds Girls’ High Sch., 1978—; Pres., Old Leodiensian Assoc., 1983–85. Recreations: golf, cricket, eating. Address. Park Court Chambers, 40 Park Cross Street, Leeds LSI 2QH. T: Leeds (0532) 433277.

  ‘The stream of justice’, said Walsh, ‘should run as purely and unpolluted as possible’. What had been published already in this case, he submitted, poisoned that stream. The consequences were on the heads of those who had published.

  The Crown QC, Richard Henriques, said that never in the history of criminal trials had a trial been stayed because of adverse publicity. There was always a lot of in-depth reporting in advance of murder trials. The real issues were not affected. The real issue was between the two defendants. Twelve fair jurors, seeing two eleven-year-old boys in the dock, would deal with this case as all juries do.

  The judge said that in his judgement the test he had to apply was that no stay should be imposed unless the defendant could show that owing to the extent and nature of pre-trial publicity he would suffer such prejudice to the extent that no fair trial could be held. The judge said it was right that he should refer in some detail to the media coverage. When the judge said this, there were those in court who thought he was seriously considering granting the stay. Wiser observers suspected it meant the opposite. He was simply being seen to have weighed the merit of the application.

  Saturation was the right word for the media coverage, said the judge. Matters of opinion had been canvassed on page after page and, while the criminal investigation was proceeding, the nature of reporting went way beyond what was normally done by the media before defendants are charged and the trial begins. It was not a case where the publicity had been merely local. There had been widespread comment and articles containing alleged information about the case and the background of the defendants. There was much strength in Mr Turner’s submission that editors had expressed opinion and comment and suggested by innuendo that the defendants were guilty. Publicity had been misleading, prejudicial and, in a number of cases, highly sensational.

  The judge went on to cite many of the articles in Turners 243–page file. He said the publicity had not merely been at the time of death. As recently as a few days ago The Sun newspaper had published photographs of the boys in the custody of police officers. Their faces had been disguised but… the judge quoted the headline referring to Jon and his lollipop.

  The extent and nature of the publicity at pretrial in this case had caused him very considerable concern. But he had come unhesitatingly to the conclusion that it had not been established that on the balance of probability either of these two defendants would suffer serious prejudice to the extent that no fair trial could be held. It was not a case where the defence was raising alibi issues. The issue was whether the Crown could establish joint enterprise, whether one or other of the boys was proved to have been the killer and whether one or the other had proved against them the necessary intent for murder to be established.

  ‘Having considered all these matters I am not satisfied there cannot be a fair trial.’ Application refused. Court rise for lunch.

  After lunch, David Turner asked the judge to remove two photographs from the bundle of 54 pictures which the Crown would be submitting in evidence. These were a sequence of photographs depiciting the route the boys had taken with James and pictures from the scene of the killing itself, including close-ups of James Bulger’s head injuries. It was the Crown’s duty to present these as evidence, but the Crown would also appreciate the emotional impact of these photographs on the jury, as would the defence. The photographs, numbers 47 and 48, which Turner asked to be omitted, were two close-ups of the head. The judge said there would be no omissions.

  This concluded business between judge and counsel. The jury could be recalled and, suddenly, the trial was beginning. Morland told the jury that the case had generated a substantial degree of media attention. ‘You must remember to decide this case solely on the evidence produced in court, and only on that evidence.’

  There had been a great deal of advance speculation about the length of the trial, which finally settled on around four weeks. With all those days stretching ahead, it was expected that the trial would begin gently, moving gradually from arcane legal discussion into the facts of the case and the difficult detail of the killing.

  Now Henriques was on his feet and making his opening speech for the Crown. He spoke with gravity and resonance and without resort to dramatic overstatement. There was no need. It soon became apparent that his narrative outline would spare the court no detail.

  HENRIQUES, Richard Henry Quixano; QC 1986; barrister; a Recorder of the Crown Court, since 1983; £27 Oct. 1943; s of Cecil Quixano Henriques and late Doreen Mary Henriques; m Joan Hilary, (Toni), (nfe Senior); one s and one step s. Educ. Bradfield Coll., Berks; Worcester Coll., Oxford (BA). Called to the Bar, Inner Temple, 1967. Mem., Northern Circuit. Council Mem., Rossall Sch. Recreations-, bridge, golf. Address. Ilex House, Woodhouse Road, Thornton-Cleveleys, Lancs FY5 5LQ. T: Cleveleys (0253) 826199. Clubs. The Manchester (Manchester); North Shore Golf (Blackpool).

  ‘James Bulger was two years and 11 months old when he died. He was the only child of Ralph and Denise Bulger.

  ‘These two defendants abducted him from his mother i
n a shopping centre in Bootle. They walked him some two and a half miles across Liverpool to Walton village — a long and distressing journey for a two year old.

  ‘James was then taken up onto a railway line and was subjected to a prolonged and violent attack. Bricks, stones and a piece of metal appear to have been thrown at James, and he was kicked in the face and body. He sustained many fractures of the skull.

  ‘Death resulted from multiple blunt force injuries to the head. There were several lacerations. At some point James’s lower clothing was removed. His body was put across the railway line and some time later his body was run over by a train which cut it in two. Death occurred prior to the impact of the train.

  ‘The Prosecution alleges that the two defendants acting together took James from the precinct and together were responsible for causing his death.

  ‘Both defendants are now eleven years of age. On the 12th of February they were ten years old, both having been born in August 1982. They both intended to kill James or to cause him really serious injury. They both knew that their behaviour was seriously wrong.

  ‘Not only is it alleged that they abducted and killed James, but that prior to abducting James they tried to abduct another two-year-old.’

  These opening words were themselves an outline of the more detailed account Henriques would give in his speech. It was the case against the boys which the prosecution would spend the next three weeks presenting. It was the Crown’s version of what had happened to James Bulger, in all its terrible minutiae. The outline had an immediate impact on those in court, a tightening of the tension of the first day. Neil Venables held his head in his hands. Susan had a white-knuckle grip on some tissues. It wasn’t necessary to look at the members of the Bulger family to imagine how they felt about what was soon to be described.