March 11, 2019

In November 1993, Jon Venables and Robert Thompson were convicted of the murder of James Bulger and sentenced to prison for life. This means that, although they might be at liberty on licence from time to time, they can be recalled to custody at any stage during the remainder of their lives. Injunctions were granted at that time to restrain publicity as to their circumstances during the remainder of their childhood.

In August 2000, when JV and RT reached the age of 18 years, they applied to extend the anonymity injunction to provide protection on into their adult life. In 2001, the then President of the Family Division, Dame Elizabeth Butler-Sloss, granted that application, making a wide-ranging order, unlimited in time, prohibiting the publication of (in summary):

1. any depiction, image, photograph, film or voice recording of JV or RT or any description of their physical appearance, voices or accents;
2. (in the event that they assumed a new identity) any information likely to lead to the identification of the individuals formally known as JV or RT; and

• any information likely to lead to the identification of the past, present or future whereabouts of JV or RT.

In February 2010, JV was released by the Parole Board on licence from his original sentence. JV was subsequently recalled to custody and charged as a result of the discovery of child pornography on his computer. In criminal proceedings, JV pleaded guilty to three offences concerning child pornography.

In subsequent civil proceedings, Mr Justice Bean reviewed the 2001 injunction. Bean J found that there was no legitimate public interest in knowing JV’s appearance, his location in custody, or the exact location at which he was arrested and to which he might return in the event of being released. If there was, it was of marginal significance when set against the compelling evidence of a clear and present danger to his physical safety and his life if such facts were made public. He therefore amended the 2001 injunction accordingly and endorsed the continuation of the 2001 injunction.

In June 2013, JV was again released on licence by order of the Parole Board, but he was subsequently recalled to custody in November 2017 following the discovery that, once again, he had accumulated an extensive amount of child pornography on a computer. In due course, JV pleaded guilty and was sentenced to 40 months in custody. At the time of this application, JV remained in custody.

Ralph Bulger and James Bulger, who are respectively the father and paternal uncle of the late James Bulger, issued an application on 26 January 2018 for the 2001 injunction (as subsequently amended) to “be varied/discharged in so far as to permit the reporting of the charges and conviction of the person formally [sic] known as Jon Venables”.

Sir Andrew noted that the question of whether JV should be protected had already been decided in principle in 2001. The question now was whether the circumstances had changed sufficiently to justify varying the injunction and reducing the level of confidentiality.

The applicants’ central argument was that JV’s name and image are now freely available on the internet and that his identity, and locations with which he had been connected in the past, have become “common knowledge”.

However, Sir Andrew found that this basic premise had not been established. Evidence purporting to identify JV related to a period of five or more years ago and at least two entirely different names were attributed to him in that material. Further, the court did not know whether any of it actually related to JV at all. The Government’s position throughout had been neither to confirm nor to deny the accuracy of any assertion that might be made as to JV’s identity. Therefore, it could not be said that JV’s identity has been accurately described in material that is publicly available on the internet.

That finding was, Sir Andrew said, sufficient to dismiss the application. However, he went on to consider what the position would be if it were established that accurate information as to JVs identity is, indeed, readily available to the public.

Sir Andrew rejected the argument that the relevant information is “common knowledge” and that the material has lost the essential element of confidentiality. In PJS v News Group Newspapers Ltd [2016] AC 1081, the Supreme Court found that, even where there had been substantial leakage of what would otherwise be confidential information, the importance of the rights to be protected must nevertheless be evaluated and could, as was the case in PJS, lead to the maintenance of a confidentiality injunction notwithstanding apparent widespread knowledge of the sensitive material.

In this case, in contrast to PJS, the court was concerned with the prospect that if he were to be identified, JV might be pursued and attacked with possibly fatal consequences. Before conducting the balancing exercise, it was necessary, therefore, to re-determine the question of whether there is a real risk that JV would suffer harm within the context of Article 3 of the ECHR, or death (Article 2).

Sir Andrew noted that, in 2001 and 2010, the court had been satisfied as to such a “real risk”. Bringing matters up to date, Sir Andrew placed weight upon evidence that demonstrated that there had been no reduction in either the notoriety of JVs involvement in the murder of James Bulger or of the “strong feelings of anger and hatred” of substantial sections of society towards him.

Further, he said, the nature of JV’s recent criminal offending would have done nothing to reduce the risk of future harm.

Sir Andrew also took into account the degree to which social media has developed since the previous findings. A decade ago the use of social media was still in its infancy. Now, social media has become a means for the promulgation and publication of information at an altogether more sophisticated level in terms of potential spread and speed than that which had been available when the court last looked at this case.

In addition, Sir Andrew considered the greater degree of publicity that would be afforded to information as to JV’s identity if the injunction were to be relaxed. Rather than a few internet postings, the national mainstream media would be likely to publicise to information, thereby giving it an even higher profile.

Sir Andrew therefore held that the evidence in 2019 was more than sufficient to conclude that there continues to be a real risk of very substantial harm to JV.

Carrying out the balancing exercise between the nature and extent of the risk to JV under Articles 2 and 3, and the Article 8 and 10 rights of the applicants, Sir Andrew said that the gravity of the risks in this case came down very heavily in favour of continued confidentiality as to JVs identity and circumstances.

The fact that JV has not yet suffered harm did not provide any reassurance as to the future, Sir Andrew said. Firstly, he was not satisfied that accurate information as to JVs identity is in fact available to the public, meaning that any point as to the absence of harm fell way. Secondly, the existence of the current injunction had been and remained a critical element in protecting JV.

The application to vary the injunction therefore failed. (Jon Venables v News Group Papers Ltd [2019] EWHC 494 (Fam) (4 March 2019) — to read the judgment in full, click here).