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Shortly before Christmas, Dame Elizabeth Butler-Sloss, a senior English judge, granted an injunction against three representative groups of the national press that many people believe to be a unique and totally unwarranted restriction on media freedom. She ordered that blanket privacy be given to the new identities soon to be given to two 18-year-old killers named Robert Thompson and Jon Venables. Eight years ago, aged 10, they were sentenced to “detention during Her Majesty’s pleasure,” the English equivalent of an adult’s life sentence, for a murder that caused outrage throughout the country. They had lured away 2-year-old Jamie Bulger, waiting alone for his mother in a Liverpool shopping mall, tortured him and left him to die on a nearby rail track. TOUGHER IN AMERICA Now they are shortly expected to be released on parole, and this injunction is designed to ensure that their new identities remain secret from media intrusion for the rest of their lives. In the United Kingdom, a life sentence almost never means life, even for an adult. Most murderers are released after 20 or 30 years — many long before that. We do not have 100-year sentences or “life imprisonment without the possibility of parole.” We are not so tough as our American cousins. And now this new decision means that if a murderer’s crime is sufficiently heinous, he or she will be granted anonymity on release. As the judge said, “These young men are uniquely notorious and are at serious risk of attacks from members of the public as well as from relatives and friends of the murdered child.” Dame Elizabeth’s injunction is a gag order without precedent, either in Britain or the United States. In America, the Marshals Service and the FBI frequently provide identities and relocation for criminals who turn state’s evidence. That is done to secure the conviction of major offenders. But I have been unable to find any federal statute or regulation applicable to a news organization that would preclude the disclosure of the names of such protected witnesses. There is no general law that would prevent a newspaper from finding and “outing” a relocated criminal, even though it might well lead to the person’s death. There are exceptions. Since states are the primary agents in enforcing criminal law, treatment can differ from area to area, and some state constitutions provide guarantees that are more flexible than those offered by the national system. In California, for instance, the law protects individuals from invasion of privacy when they are given anonymity under a federal witness protection program. But even there, the First Amendment makes itself felt in the exception that permits disclosure if it is “newsworthy.” Britain has its own witness protection programs, whereby, as in America, new identities are given to lesser criminals in order to convict bigger criminals. But the Bulger case is different. Now it is the “bigger criminals” themselves — the star performers, so to speak — who are to be protected. There is no pragmatic reason, such as the need to ensure conviction. They have served their time — though some would quibble with its adequacy. EUROPEAN INFLUENCE In October 2000, the European Human Rights Convention was incorporated into English law. Using this as her guide, the judge based her ruling on Article 2, which protects the right to life, and Article 3, which says that no one shall be subject to torture or inhuman treatment; and also on the pre-existing English judge-made “law of confidence.” Until recently, the law of confidence was a vague, half-baked legal notion allied in some amorphous way to a right to privacy, which all lawyers and judges used to say did not exist in English law anyway. Now that long-denied personal right has been used to restrict unjustly the general right to media freedom. Article 10 of the Human Rights Convention assures “freedom of expression,” but the judge did not even refer to it in her judgment. Once again, American concepts of freedom seem to be ahead of ours. True, Dame Elizabeth has granted leave to appeal, although to date the media groups have not decided whether to act. I hope they do, and that our Court of Appeal in London remembers that, if you improperly muzzle the media, you also muzzle liberty. Fenton Bresler is a British journalist and barrister.

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