We might well think of 2000 as the year of emotional justice. In Private Eye last month a cartoon of a suited man being chased by a group of youths bore the caption: ‘I’m a paediatrician.’ That same week, a woman was besieged in her home by a group of youths who daubed the word ‘Paedo’ on her wall. She was of course a paediatrician. Whichever way we turn, we see populist measures outlined or tabled by politicians, populist judgments delivered in the courts, and unthinking, vengeful behaviour on the ground. Two cases stand out: those of Myra Hindley and Sarah Payne. In both public fury has prevailed over fairness, the interests of the bereaved over those of the community as a whole.

In 1966, Myra Hindley and Ian Brady were convicted of the murder of two children whom they had abducted and tortured. They received mandatory life sentences. In passing sentence the trial judge did not specify the length of time they should serve, but recommended that they be kept in prison for ‘a very long time’. In 1985, Leon Brittan, then Home Secretary, decided, in the course of an administrative review, that a 30-year sentence was appropriate for Hindley’s part in the murders. She wasn’t told this. In 1987, she confessed to her involvement in the killing of two more children. In 1990, the time she would have to serve – known as the tariff – was set at whole life. In 1997, Jack Straw undertook a further review of her sentence – which Marina Warner wrote about in this paper (1 January 1998). The Labour Home Secretary confirmed that a whole life tariff (life meaning life) was a suitable sentence in Hindley’s case.

In February and March this year, Hindley applied in the House of Lords for a judicial review of his decision. The Lords was the last domestic forum open to her before taking her case to the European Court of Human Rights. The fact that it is virtually impossible to have any sympathy for a woman who has taken part in the torture and murder of young children makes her case a valuable instrument with which to gauge the objectivity of criminal justice in this country, while the Law Lords’ judgment provides an excellent example of the British judiciary’s habit of presenting their deliberations as if they were the product of a quasi-scientific process. Their Lordships give the impression that they are merely technicians in the administration of an impartial justice machine, that they take no notice of political and press opinion. An impressive turn of phrase disguises the extent to which political views and entrenched social positions are liable to colour their decisions.

It is an indication of the inflammatory nature of the subject-matter in the Hindley case that, however much their Lordships sought to depersonalise their judgment and confine themselves to questions of administrative law, with its talk of the fettering of discretion, of declarations and certiorari, their fury at the impertinence of the submissions made on Hindley’s behalf shows through. Reading Lord Stein’s opinion, the main judgment in the matter, one is reminded at times of Basil Fawlty desperately trying to suppress his true feelings about the war.

The judgment begins ominously with a traditional statement of British fair play: ‘Hindley is entitled to the full measure of the protection of the law and is therefore entitled to have her arguments examined afresh and with care by the House.’ The first ground of appeal, pertaining to the unlawfulness of whole life sentences in general, was then firmly booted into touch by their Lordships as a fiddling matter of statutory interpretation which they had got right and which counsel for Hindley had wilfully misinterpreted.

The second category of grounds of appeal were those which applied directly to Hindley. Arguing that the increase on the 30-year tariff set in 1985 was contrary to legal principle, Hindley’s counsel relied on the proposition that it was wrong for the Secretary of State to increase retrospectively a tariff fixed by himself or a predecessor and then communicated to a prisoner. Their Lordships ruled that this argument failed because the decision to increase the tariff was provisional and neither directly nor indirectly communicated to Hindley.

Well, Hindley’s lawyer countered, should not that principle extend to provisional and uncommunicated decisions also? No, said the House of Lords, it should not. Further, the fixing of the 1985 tariff was based on incomplete knowledge of Hindley’s role, since she didn’t confess her involvement in the murder of two further children until 1987. Counsel suggested that Hindley had a legitimate expectation of a finite limit to her tariff (no, she did not, said Lord Stein); that the imposition of the whole-life tariff had been politically rather than legally motivated (‘The wisdom of this shift in penal policy is not a matter that arises for decision,’ their Lordships commented); and that Jack Straw had failed to address arguments put to him against an increase in Hindley’s sentence or to indicate whether he had accepted her version of events, in which she committed the murders under threat and intimidation. (Don’t push your luck, Lord Stein countered. ‘It might have been open to him to question the reliability of Hindley’s statements in mitigation as being self-serving and unreliable,’ but, according to their Lordships, he had not done so.)

The final argument put forward by Hindley’s lawyers was that the whole life tariff was disproportionate: given her age at the time of the murders, Brady’s undoubted dominance and the fact that she had spent 34 years in prison, there was no justifiable basis for maintaining a whole life tariff in her case. Lord Stein’s mask of objectivity didn’t slip at this point: he ripped it off and tossed it to the tabloid press like a knight presenting a favour to his lady.

Even in the sordid history of crimes against children the murders committed by Hindley . . . were uniquely evil . . . They abducted, terrified, tortured and killed their victims before burying their bodies on Saddleworth Moor . . . Her role in the murders was pivotal . . . The pitiless and depraved ordeal of the victims and the torment of their families place these crimes in terms of comparative wickedness in an exceptional category.

Gotcha. The arguments advanced on Hindley’s behalf were rejected and her appeal was dismissed.

The Moors Murderers provide one of the few fixed bearings in a sea of relativist notions. Everyone knows what to think about Brady and Hindley – that they are irredeemably bad. We derive a moral certainty from them which time has done nothing to wear away. This is the crux of the difficulty for Hindley. She is up against politicians who use her as a rare occasion to assert their authority in a world where it is undoubtedly dwindling. Her continued detention has become the penological equivalent of bread and circuses. Her attempts to be considered as an individual have foundered time and time again on the rocks of folk memory.

Added to this has been the fact that she is inextricably entwined with her partner in crime and that, over time, the perception of the roles of Brady and Hindley has undergone a reversal. Previously, Hindley, though vilified, was seen as the less willing participant, the cowed girlfriend, the woman who in certain respects was not in full control of her actions because of Brady’s overbearing personality. Recently, however, it is Brady who has become the more acceptable of the two. By bringing a judicial review against the Health Authority who continued to feed him against his will, by proclaiming his wish to die, he has exhibited exactly the nihilistic longing applauded by a society that refuses to recognise the possibility of contrition and reform on the part of a convicted criminal.

Hindley, on the other hand, is denied permission to break out of her entombment as a cultural grotesque. Successive Home Secretaries, along with almost every other politician, have in effect denied that she might be capable of change and her case must now be seen as a defeat for justice at the hands of popular outrage, institutionally enshrined. The judgment of the House of Lords is only one more expression of this.

The trial of the Moors Murderers marked the birth of a modern-day populist movement that combines a desire for information about the disturbing, preferably sexual, detail of crimes, a craving for vengeance by the public on behalf of the victims (bulletproof screens were erected around the dock) and a cult of celebrity bereavement. The fruits of this combination have been in evidence this summer, with the publicity surrounding the eight-year-old Sarah Payne, whose murder echoes the events in and around Manchester thirty years ago.

The almost hysterical reactions to the idea of releasing Hindley and to Sarah Payne’s death are different expressions of the same thing and bring into bold relief the effect that an alliance of unrestrained sentiment and media cynicism can have. The current focus on the bereaved and their demands seems to stem from a lack of faith in traditional procedures, an increased awareness of rights – the jargon if not the substance – and a crude externalisation of psychological conflict. Behind these shifts lies the massively increased involvement of the media in the early stages of the criminal justice process and the loss by the police of their implicit mandate to represent and protect the public.

The endless press conferences and rolling news updates that followed Sarah Payne’s disappearance have been priceless opportunities for the police to try and repair the damage done by their incompetence in the Stephen Lawrence case. At the same time, it is evident that a degree of complicity between the police and the media persists, but as with other relationships of this kind, a cosmetic equality between the partners hides the reality of the situation. Transfixed by anxiety about their image, the police have allowed journalists and television presenters to have the upper hand.

The enthusiasm with which the detective in charge of the enquiry announced the Paynes’ request for police officers to walk in the funeral cortege shows how desperate the police are to disguise the fact that, after Lawrence, the public has a new set of attitudes towards law enforcement, predicated on the assumption that the police are incompetent, racist and corrupt (although not necessarily in that order).

Sarah Payne’s death has been a public event suffused and almost obliterated by the kinds of reaction that are only really proper in private. In the soap presentation of her murder and its aftermath, with so much emphasis placed on individual emotion after the event, the taking of her life has sometimes seemed to edge towards the opening episode of a TV drama. We have, in the main, been happy to settle down to a newsroom version of Prime Suspect, while those with faulty washers on their sentiment taps have laid flowers and formed lynch mobs. The murder has also been an excuse for self-pity and the undirected pouring forth of meaningless, incoherent emotion.

This intrusion of the private into the public has implications for those who happen to be murdered and photogenic. In the shift from reality to theatre, Sarah Payne became an object of spectacle and the act of violence perpetrated against her was the first in a series of transactions that include restoring the image of a demoralised police force, selling more newspapers and satellite dishes and satisfying the wayward appetite of the public.

The importance of the media to the investigation of Sarah Payne’s murder highlights not only the triumph of form over substance in yet another area of public life but also the increasing complexity of the individual’s role in society. We are victims but we are also empowered, comes the message. We are adamant that our own rights should be recognised but cannot accept that the interests of others may on some occasions have to take precedence. If we are victims, we find it difficult to acknowledge that those who stand accused are entitled to safeguards and if we find ourselves in the position of defendant we protest that our prosecution isn’t legitimate, that we are being persecuted by our enemies.

This tension between what we want for ourselves and wish to deny others is very old and very familiar. Sin, guilt, conscience and other such notions once helped us to deal with it. Whatever damage they may have entailed, they nonetheless encouraged a sense of personal responsibility. They also allowed for the coexistence of good and bad without the need for the first to prevail absolutely and unequivocally over the second. The bath is now empty and there is no sign of the baby, for in rejecting these ideas, we have also lost a degree of psychological subtlety. We resist any contradiction that we cannot explain or resolve. And as in our own lives, so, with the assistance of the media, in the public domain, where we extend our anger to external representations of the things we refuse to accept in ourselves. Paedophiles and paediatricians, beware.

The prurience of the tabloid papers is central. What is one to think when confronted with the saucy secrets of a wife-swapping swinger on one page and the details of a girl’s naked corpse on the next? Where does the titillation end and revulsion begin? It ends in some cases in the tabloid made flesh, the mob, which sobs as it rampages as it masturbates.

It would not be so bad if the cries for vengeance and the grand gestures remained expressions of grief but, for as long as political agendas are based on focus groups and opinion polls, personal hurt threatens to become an engine of public policy – whence the call for Sarah’s Law, mimicking Megan’s Law in the US, a campaign initiated by the News of the World to give wider access to the names of those convicted of sexual offences.

The notion that if you offend against one, you offend against all is no longer serviceable. Personal vengeance is not an unusual element to incorporate into a legal regime – the Sharia is an example of a contemporary system that contains it. But in Western legal traditions, we have been inclined to think of the pre-eminence of private vengeance over considerations of harm to the State as the main feature of a primitive legal system.

Even if we accept that in the law as in every other domain we are retreating from the precedence of general over individual interest, what is shocking is the rapidity with which the supremacy of the victim, or the bereaved, has reasserted itself in the consideration of crime. In the space of ten or twenty years, the call for revenge has begun to undo the legal intricacies of centuries.

Does a return to victim justice have any benefits? Did Sarah Payne’s parents’ constant appearances ‘add value’ to the investigation into their daughter’s death? It is worth noting that, as yet, no one has been charged with Sarah’s murder despite the saturation coverage that continued through the dispute over whether the Coroner would release her body and up until the day of her burial. At times it has felt as if this murder and its trappings have been with us for ever. Certainly, we have shown ourselves to be enthusiastic and indefatigable voyeurs of this death drama. With the current taste for interactive ‘people-interest’ shows in mind, perhaps Sky TV should consider installing a Griefcam at the home of the parents of the next child victim of a sex killer so that if we wish we can feel their suffering 24 hours a day.

Manipulated as they were, the Paynes seemed to grow into the role allotted to them as they attended the Byzantine rituals of a modern-day murder inquiry – the press conference, the TV exclusives, the personal interest stories. ‘It’s what she would have wanted,’ they said again and again, justifying their decisions as if referring to their daughter’s thoughts on how she would have liked a manhunt or a memorial service conducted in the event of her sudden and violent death.

The service threatened to be an exercise in schmaltz and indulgence. In the event, it was a terrible spectacle of alienation. We watched on television screens as the mother and father of Sarah Payne stood in a cordoned off area surrounded not by their friends but by banks of cameras. Given their cue, they released some white doves into the air. The cameras flashed. I am not sure that a more chilling image of dysfunction and isolation could be imagined.

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Vol. 22 No. 20 · 19 October 2000

I write as a close relative of a seven-year-old girl who was murdered in the 1960s by a stranger (not Myra Hindley), but I hope I can avoid the ‘hysterical reactions’ and ‘self-pity and … undirected pouring forth of meaningless … emotion’ seen by John Upton as characteristic of ‘victims’ (LRB, 21 September). Upton pours scorn on the Law Lords’ description of Hindley’s crimes as placed ‘in terms of wickedness in an exceptional category’. According to him they have ripped off their ‘mask of objectivity’ and ‘tossed it to the tabloid press like a knight presenting a favour to his lady’. My view is that the torture and murder of children for adult pleasure is a crime against humanity, and that even if the public’s unique loathing and condemnation of this crime has been appropriated by media and politicians, it is at bottom perfectly valid and legitimate, and the law does well to reflect it. These views do not mean that I have a ‘faulty washer on my sentiment tap’; they make me a human being. I understand that Upton writes as a lawyer.

Anthony Cassidy
Marple, Cheshire

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