Critics of Lord Janner decision misunderstand justice system
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Version 0 of 1. The creation of the Crown Prosecution Service nearly 30 years ago was pretty traumatic for the police. I remember it well and wrote a book about it at the time. Overnight, detectives lost the power to decide what charges should be brought against people they had arrested. Instead, the director of public prosecutions — whose remit had been confined to cases of “importance or difficulty” for the previous 100 years — took responsibility in 1986 for most public prosecutions across England and Wales. Some police forces still haven’t got over it. Last week, Leicestershire police said the CPS decision not to prosecute Lord Janner of Braunstone QC for alleged indecent assaults and buggery on nine individuals was the “wrong one”. This may have had something to do with the CPS’s allegation that mistakes had been made by Leicestershire police in 2002 (as well as by the CPS itself) and that Janner should have been prosecuted while he was still fit to stand trial. Leicestershire police responded by publishing an allegation that Janner was an “animal”. Now, a number of parliamentary candidates have written to The Times to argue that Janner should be put on trial in the “greater public interest”. I would not go so far as to accuse these politicians of jumping on a bandwagon that the Leicestershire police let loose last week. But the candidates’ letter betrays a woeful misunderstanding of the criminal justice system in general and the CPS in particular. Our starting point must be the finding by four medical experts — two instructed by defence lawyers and two by police and prosecutors — that Janner is “suffering from a degenerative dementia, which is rapidly becoming more severe”. There seem to be plenty of people who simply do not believe this. They rely on the fact that Ernest Saunders was misdiagnosed. They rely on the fact that Janner is apparently well enough to sign his name. I have no independent confirmation of the doctors’ reports. All I can say is that the last time I saw Janner in public – which must have two or three years ago – he could no longer remember anybody else’s name. A colleague who saw him at around the same time says he was “away with the fairies”. It would be good to see the doctors’ reports. But, whatever we are told, the conspiracy theorists will never be satisfied. According to the CPS summary of the doctors’ findings, Janner’s “evidence could not be relied upon in court and he could not have any meaningful engagement with the court process”. If that is correct, any judge would stop the case as an abuse of process. There simply cannot be a fair trial if the defence cannot be heard. It would be a waste of public money to ask a judge to decide whether Janner is fit to plead when the evidence is all one way. Ah, say the politicians, but he could be tried in his absence. It’s true that cases sometimes proceed when defendants misbehave in court or abscond. But the defendant must have been present at the start of the case to enter a plea. If a defendant becomes unwell during a trial, the case cannot continue unless he consents. That may not be necessary if a co-defendant falls ill. Subject to those exceptions, we simply do not try people in absentia. A conviction in such circumstances would be worthless. What about the process known as trial of the issue or trial of the facts? Under the Criminal Procedure (Insanity) Act 1964 a judge may decide, on medical evidence, that a defendant is unfit to plead. This presupposes that the defendant was not found unfit to stand trial at the outset. If the judge finds that the defendant is not fit to plead, the trial must stop. Instead, the jury will be asked to decide – on the basis of evidence adduced by prosecution lawyers and by lawyers appointed by the court to put the case for the defence — whether or not the accused did the acts he was charged with. This is not a trial, as such, because the defendant cannot put forward a defence. For that reason, there can be no verdict of guilty and the court cannot pass sentence. All it can do is to make a hospital order, a supervision order or an order for the defendant’s absolute discharge. The purpose of this procedure, as explained by the courts, is to ensure that a defendant’s liberty is not restricted if no crime was ever carried out. Alison Saunders, the DPP, says she considered this option and concluded that the outcome would inevitably be an absolute discharge. In those circumstances, she says, a prosecution would not be in the public interest. That must be right. What the DPP does not spell out in her statement – because it should hardly need saying – is that the primary purpose of a criminal trial is not to “deliver justice” to alleged victims. It is not to “find out what happened”. That’s the role of a public inquiry. The purpose of a criminal trial is to test the evidence against a named defendant. If the defendant is dead, abroad or suffering from dementia, there can be no trial. I hold no brief for Saunders. She has undoubtedly made some bad mistakes since becoming DPP. She does not have the staffing she needs. She is, however, more willing than any of her predecessors to explain her decisions in public. And she is to be commended for defending her Janner decision in unprecedented detail. The buck stops with her. I also hold no brief for Janner. As critics have not been slow to point out on Twitter, he is a fellow Jew. He has made an important contribution to public life, as he reminded us in his memoirs. But he has always struck me as someone who – for whatever reason – has deep personal failings. Like the DPP, I want to know why the allegations against Janner were not put to him while he was still fit to stand trial. I hope the inquiry commissioned by Saunders – as well as the government’s public inquiry – will eventually tell us. |