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The Times
September 27 2000

 

The Bulger Ruling

Ruling renews rivalry with ministers over sentencing

By Frances Gibb, Legal Editor

 

LORD WOOLF, the Lord Chief Justice, yesterday rekindled the long-running tension between ministers and judges when he recommended that the killers of James Bulger should go free.

Even before his ruling was delivered, his old adversary, Michael Howard, the former Tory Home Secretary, was castigating "unelected and unaccountable" judges who seemed to put the needs of the criminal before those of the victim. Politicians, Mr Howard argued, could at least be got rid of by the electorate; not judges.

The furore that greeted Lord Woolf's recommendation - enabling the boys to be considered for immediate release - was predictable. The case was his first controversial ruling since he took on the mantle of Britain's most senior serving judge in June, and he was well aware of the political and public repercussions. "But Lord Woolf," one observer said, "is not going to be swayed by public opinion or media criticism. He will do what he thinks is right."

The writing was on the wall after an interview two weeks ago. In it he gave Myra Hindley, the Moors murderer, hope of freedom and appeared to be telling ministers that judges, not ministers, should determine her release date and that they would have to abide by any such ruling.

The catalyst for this renewed conflict of powers between judges and ministers is the Human Rights Act. The European Court of Human Rights has ruled that it is a breach of human rights for ministers, rather than judges, to set the tariff, or minimum jail term, in cases involving child killers. The Bulger case is the first of 140 that Lord Woolf will now review.

He predicts that there will shortly be a challenge on the setting of tariffs for adult murderers such as Hindley. The courts - probably Lord Woolf himself - are expected to declare that current procedures for adult killers are incompatible with the new Act.

A fresh clash is inevitable. Ministers have already hinted that they will not necessarily follow all the courts' rulings over breaches of human rights. Parliament, they argue, retains the upper hand under the new Act.

However, it is a fact that the Act has shifted more power to the judges. The judicial answer to Mr Howard's broadside is that, yes, judges may be unelected; but better they make decisions than have ministers act unlawfully, swayed by popular demand.

It is familiar territory for Lord Woolf. The most liberal holder of his post and a strong penal reformist, he became identified - with Lord Taylor of Gosforth, one of his predecessors - with the voice of judicial opposition to the last Government's penal policies. He was embroiled in a series of public clashes over justice policy. Tensions were also inflamed as ministers - Mr Howard in particular - were regularly brought before the courts to have their decisions declared illegal. By 1995 an unprecedented rift had opened up between ministers and judges over Mr Howard's plans to force judges to impose tougher sentences.

Conservative politicians derided him as being out of touch with public views and attacked him and other judges for viewing ministers with contempt. Now, though, Lord Woolf is in the driving seat. With the Human Rights Act, the ground is ready for a fresh harvest of challenges to ministerial decisions, and for the judges again to become a thorn in the Government's side.

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