By Sam Peace, Solicitor, Foot Anstey LLP and Tom Wilkin, Solicitor, Foot Anstey LLP

Simply by coincidence, our most recent Law columns have focused on anonymity orders. With the most recent being focussed on ‘Cliff’s Law’ and the anonymity of victims of sexual offences, this week we consider lifelong anonymity orders of defendants. Our next column will focus on advance warning on anonymity applications.

There are just six individuals in the UK who have been granted lifelong anonymity. Two of these individuals were the killers of two-year-old James Bulger in 1993, Jon Venables and Robert Thompson. Initially they were both given anonymity until they reached adulthood, but in 2001, they were granted lifelong anonymity by Dame Elizabeth Butler-Sloss.

Interestingly, the basis for the lifetime order was that the possibility that Venables and Thompson would be pursued by vigilantes was so strong, that their rights under Articles 2 and 3 of the ECHR were seriously threatened (right to life and prohibition of torture respectively).

Since his release on licence, Venables has been in and out of jail, the most recent recall to custody being in 2017 following the discovery of indecent images of children on his computer (a charge to which he pleaded guilty). Following this, James Bulger’s father and uncle made an application to vary the lifetime anonymity order on the basis that there was a public interest in this information being disclosed and Venables’ identity was already freely available on the internet and common knowledge. Importantly, the court noted that there was significant speculation online and at least one occasion of an individual having been wrongly mistaken for Venables.

Bulger’s father and uncle relied on the PJS case (which I am sure everyone will have heard of), but the Court stated this harmed their application because the PJS case concerned balancing Articles 8 and 10 (right to respect for private and family life and freedom of expression respectively), whereas in this case, there was a balancing act between Articles 2 and 3 of Venables and Articles 8 and 10 of the applicants.

Ultimately, and I think it is quite difficult to argue against, the Court said “the purpose of the [lifetime anonymity order] is to protect [Venables] from being put to death”. It was the Judge’s view that Venables’ right to be protected from “serious violence” completely outweighed any arguments put forward by Bulger’s father and uncle.

There have only been 4 other individuals who were granted lifelong anonymity, two brothers (children at the time) who committed serious crimes against other children and Mary Bell, who strangled two young boys, when she was young and Maxine Carr, who hindered the investigation (by lying to the Police) into Holly Wells and Jessica Chapman, the missing school girls.

Therefore, it appears that the Courts are only ever willing to even consider granting lifelong anonymity orders where the individuals’ Article 2 and 3 rights are threatened. However, this is not always the case; the Scottish Courts have recently granted the press the freedom to reveal the identity of the rapist and murderer of six-year-old Alesha MacPhail, Aaron Campbell. The media’s counsel stated that Campbell’s identity was already know, both locally and online, and subsequently the Judge allowed Campbell’s name to be disclosed.

I think one of the most important take away points here is that, in the social media environment that we live in – where news, gossip and hearsay moves so fast – the identity of these individuals may already be common knowledge and widely known. If the Bulger murder happened now; would have the killers’ identities already been revealed on social media and continue to be revealed/known? Therefore, making a lifelong anonymity order somewhat redundant?

Therefore, making a lifelong anonymity order somewhat redundant? These are questions which we will never know the answers to, but as our world becomes so heavily reliant on technology, it seems that these already rare lifelong orders will become even rarer.