The Sleep of Reason: The James Bulger Case (38 page)

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 Six 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
Telegraph
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 Turner’s 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;
b
27 Oct. 1943;
s
of Cecil Quixano Henriques and late Doreen Mary Henriques;
m
Joan Hilary, (Toni), (
née
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-Clevcleys, Lanes 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 in 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.