Bulger judgment 'blow to press freedom'

Newspapers fear the judgment will apply to other killers

By BBC media correspondent Nick Higham

The decision by Lady Justice Butler-Sloss to grant James Bulger's killers continuing anonymity will be seen by newspapers as a blow to media freedom.

Newspapers argued that, in the interests of open justice and freedom of expression, all criminals should be identified.

To extend indefinitely the ban on naming the Bulger killers would set a dangerous precedent and make serious crime "a passport to anonymity," they said.

But the Home Office argued that the state had a duty to protect the teenagers and that their right to freedom from persecution took precedence over the media's right to freedom of expression.

A momentous decision

Mark Stephens, media lawyer

On Monday, Mark Stephens, a lawyer specialising in media cases, called the judgment a "momentous decision".

In his view the press may be excluded from revealing the identities of defendants in a great many criminal trials in future whenever the court can be persuaded that the defendants' lives are threatened.

But Dame Elizabeth takes a different view. She calls the circumstances of the Bulger case, which have seen what amounts to a witch-hunt against Thompson and Venables in some newspapers, "almost unique".

Another leading lawyer, Allan Levy QC, agrees that this case is so exceptional, and the circumstances so special, that the media have little to fear.

Lady Justice Butler-Sloss said the case was 'almost unique'

It does not set a precedent because media organisations can always argue in future that the circumstances in any other case are quite different.

In reaching her decision the judge took account of the new Human Rights Act.

It guarantees everyone a right to life and means the courts can no longer stand by and do nothing if they are convinced there is a "credible threat" to somebody's life. She thought there was such a threat.

Publication abroad

She had to balance the killers' right to life with another also enshrined in the act, the right to freedom of expression.

The question now is whether the injunction will stick. It does not apply in Scotland, although Scottish editors are unlikely to defy an English court ruling without good cause.

Enforcing it on the internet would be next to impossible if it were published on a website based outside UK jurisdiction.

The injunction does not apply abroad and newspapers in countries like Australia or Canada may well decide to identify Thompson and Venables especially if, as is rumoured, they embark on new lives under assumed identities in one of those countries.

The anonymity judgment may be contravened abroad

As the Spycatcher saga proved, once injunctions banning publication or identification are breached abroad, it becomes very difficult indeed to persuade British news media to abide by them.

Superintendent Albert Kirby, who led the hunt for James Bulger's killers, says the media have only themselves to blame for the injunction.

He says they brought it on themselves by their refusal to leave the case alone and indeed by the way they reported the calls for revenge by James Bulger's father and others which so influenced Dame Elizabeth.

Supt Kirby says he hopes newspapers, TV and radio will now let the subject rest, and leave James Bulger's killers free to rebuild their lives.

It is, almost certainly, a forlorn hope.