Venables: the Media fail in “unmasking” application

27 07 2010

After the torrent of media speculation about Jon Venables based on unattributed statements and innuendo, last Friday Jon Venables appeared in Court at the Old Bailey by Video Link from his prison and pleaded guilty to the three charges of downloading and distributing child pornography and was sentenced to prison for two years.

In mitigation defence counsel Edward Fitzgerald QC told the judge  told the judge that what his client had done was partly because of the “wholly abnormal situation” of living under an assumed name amid “constant fear of reprisals”. His “isolation” had led him into a “downward spiral of drink and drugs” and he had become addicted to cocaine and mephedrone. Venables had “endured very real and prolonged fear of reprisals as a very young child”, said Mr Fitzgerald, adding: “He has undergone vilification, demonisation, and threats to his life of exceptional intensity over the years and they continue today.”

The Guardian  reported :

Among the documents before the court were statements posted by bloggers on websites called Don’t Give Jon Venables a New Identity and Rot In Hell Jon Venables, threatening his life.

The court papers on Venables’s behalf spoke of the fear he had faced that his identity would be revealed, how he had been trained by the police in counter-surveillance with his new identity and how he knew he would have to live a lie for the rest of his life, appreciating that if his identity became compromised his life would be at risk. He had been given a new identity – though remaining in contact with his family – and had worked continuously since his release in 2002, paid around the minimum wage and working unsocial hours. A psychiatric report said he had led a restricted life, in constant fear, which would continue after his eventual release to create a mental state characterised by chronic anxiety, irritability, hypervigilance and a marked restriction of activity. Misuse of alcohol or illicit drugs is probable and hopelessness could result in risk-taking behaviour. He was not, at the time of assessment this month, thought to be suffering from a mental disorder. Unable to share his huge secret, Venables fears he will always be alone. Understandably, then, the report said he was relieved to be taken back into custody.”

In an unusual step the sentencing remarks of Mr Justice Bean have been published on  the judiciary website and are reproduced here in full:

“Jon Venables, you have pleaded guilty to three offences concerned with child pornography on a computer. In early 2008 you sent 42 indecent images to a paedophile, Lesley Norman Blanchard. In the months leading up to 23rd February 2010 you downloaded 57 pornographic images or films depicting child sexual abuse. In the case of three of them you did so in such a way that they were available during the downloading to other users of child pornography who had access to the necessary peer-to-peer software, although the prosecution have made it clear that there is no evidence that anyone did so. The distribution alleged in counts 2 & 3 was therefore very limited. But some of the images are of a very serious kind, known as level 4, and involve very young children in sexual acts.
It would be wrong, in my view, for the sentence you receive today for child pornography offences to be increased by reason of the fact that you are one of the two people who, when much younger, carried out the horrific murder of two year old James Bulger. But there is a significant difference between your case and that of a typical offender. In an ordinary case, I would be telling the defendant that after serving half of the sentence of imprisonment which I imposed, he would be released on licence. That does not apply in your case. You were recalled to prison in February this year under the terms of the licence on which you were released as part of the life sentence (Detention at Her Majesty’s Pleasure) imposed by Mr. Justice Morland in 1993 following your conviction for murder. When you reach the halfway stage of the sentence I am about to impose it will be for the Parole Board to decide whether or not it is safe for you to be released on licence once again. I emphasise that that issue is not a matter for me today, and it would be wrong for me to say anything about it.
Accessing child pornography on a computer is not a victimless crime, since people who do it encourage the exploitation of the children who are filmed or photographed. As Mr Fitzgerald QC rightly accepted on your behalf, even downloading such images, let alone distributing them, is itself a form of child abuse. The sentences which should be imposed in such cases have been laid down in detail, first by the Court of Appeal and then by the Sentencing Guidelines Council. The Council’s definitive guideline on sexual offences, which I am required to follow, states that where someone is convicted after a contested jury trial of distributing level 4 or 5 images the starting point should be three years custody and the sentencing range can be from two to five years.
In view of the limited distribution in your case, I do not consider that I should increase the starting point beyond the 3 years indicated by the guidelines, but I am not prepared to reduce it either. The appropriate sentence after a trial would therefore have been 3 years, but you are entitled to credit of one third for the fact that you made immediate admissions when interviewed about the respective offences. You indicated through counsel your intention to plead guilty to counts 1 and 3 at the earliest opportunity and to count 2 as soon as I had given a ruling on a point of law which your counsel quite properly raised before me.
The sentences will therefore be 2 years on count 3, 12 months on count 2 and 6 months on count 1, all concurrent, making 2 years in all. They run from today since you are not entitled to credit for the time spent in prison since your recall.
The pre-sentence reports before me assess you as posing a medium level risk of serious sexual harm to children, because you have colluded with and encouraged the harm already inflicted on the exploited children by downloading the images. It is right to say that there is no evidence of your using the internet to try to contact or groom children for sexual exploitation. Nevertheless I consider it necessary for the purpose of protecting future children from being exploited for your sexual gratification, to impose a sexual offences prevention order (SOPO) for five years from today prohibiting you from:
(1)  owning or using, save at your place of employment, or at a supervised facility open to the public, any computer with access to the internet which does not have a software programme designed to prevent access to child abuse images installed and in operation;
(2)  using any internet-based file sharing or peer-to-peer software;
(3)  using any internet-based social networking sites or accessing any chat facility which enables you to engage in any form of chat on the internet.
In addition I make an order for deprivation of your computer itself.
On release from custody you will be required to register with the police under the notification requirements of Part 2 of the Sexual Offences Act 2003 for 10 years. You will also be permanently barred by the Independent Safeguarding Authority from working with children. These restrictions will be quite separate from, and additional to, any conditions imposed under your licence as a life sentence prisoner.”
Media Application to Have John Venables Visible to The Public At Trial

Prior to sentencing,   it appears that  Anthony Hudson, counsel for media organisations, raised the issue of Venables’ continuing anonymity and the fact that he was to give evidence by Video  link.  The judge, Mr Justice Bean, was the only person in the court at the Old Bailey who was able to see James Bulger’s murderer, Jon Venables.

Mr Hudson  said the decision to allow only the judge to see Venables via videolink was a “very serious departure” from the principle of open justice, adding: “This is the first time ever that such a course has been adopted in relation to an adult criminal defendant.”

However the Judge, unsurprisingly, rejected the media contentions. He  said: “I do not see that it is an essential part of criminal proceedings that the public should be able to look at the defendant, either at the time of sentencing or before.There is evidence to the effect that there is very considerable risk to Mr Venables’ life if his identity becomes public.”

Although there is no public judgment of the ruling, given the obvious and repeatedly stated risks  to Mr Venables life if his identity becomes public, it is difficult to see how there could be a sufficient countervailing Article 6 or Article 10 right to justify the media contention for unmasking.

Media Issues

As we have reported in previous posts, the frenzied media reporting in Spring of this year meant that there was real doubt whether there could have been a fair trial of any prosecution against Venables and real concern about whether the media coverage might eventually lead to his identification.

Indeed on 21 May 2010, nearly three months after being returned to prison,  an injunction was granted by Mr Justice Bean that prevented all media from revealing the new identity given to Venables, any information about his whereabouts and any picture or description of him. It also banned any information about criminal proceedings or the nature of the Crown’s case. In hindsight this May order had appeared to stop the media frenzy that was raging against Venables.  A further hearing took place on 2nd June 2010, listed as Re X, at which the order was continued.

It appears that on 21st June,  after representations to the Judge from the media, the May order was varied to allow reporting of the fact and some detail about the charges and that there would be a public hearing where Venables will appear via videolink at the Old Bailey on 23rd July  to enter a plea.  As the Daily Mail reported in an article the next day;

“One of the killers of James Bulger has been charged with downloading child porn, it was revealed yesterday. Jon Venables, now 27, now faces up to ten years back in prison. He is accused of downloading 57 indecent images of children from the internet and distributing seven images by allowing others to access files on his computer through a ‘peer-to-peer network’.

The charges can be disclosed after a ban on reporting the case was partially lifted by a High Court judge, following a challenge by a number of media organisations….

But Mr Justice Bean lifted the restrictions yesterday in the interests of open justice. Next month Venables will make his first appearance in a public arena since his conviction in November 1993 for murdering two-year-old James….

The hearing was held in private, but Mr Justice Bean allowed the charges to be reported. Gavin Millar, QC, prosecuting said: ‘The first count, the making of indecent photographs, covers downloading on to his own computer. Count two covers the distribution through the internet of indecent images.”

Although the hearing was in private, it appears that the Judge continued the order preventing all media from revealing the new name and identity given to Venables, any information about his whereabouts and any picture or description of him.

Comment

The previous orders were granted on the basis that there was a threat to Venables’ life and safety from “vigilantes”.  This threat does not appear to have decreased over the years.   As a result, the Courts plainly have a duty under Articles 2 and 3 of the Convention to protect his anonymity.   The amount of information which has now come to light in the media suggests that his new identity may be jeopardised and it may be necessary to give him yet another new identity – at considerable public expense.   The case is a very good illustration of the need to place limits on “open justice” in order to protect other fundamental human rights.   The public anger at his original crime is, of course, entirely understandable.  However, a responsible media must ensure that this anger does not lead to the commission of further crime.   The careful approach of Mr Justice Bean in the recent hearings has enabled Venables to have a fair trial on the recent charges and has struck a proper balance between openness and anonymity.  Venables will now serve his new sentence and, it is to be hoped, can be given sufficient help and protection to enable him to re-integrate into society.


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