Law and Rights
The Director of Public Prosecutions (DPP) has reversed her earlier decision not to prosecute Lord Greville Janner on 22 counts of sexual offences allegedly committed against children - see the announcement by the Crown Prosecution Service (CPS). My blogpost on the earlier decision may be read here.
The various counts are set out in the announcement and are all under the Sexual Offences Act 1956. The law as it stood at the time of the alleged offences is used.
The reversal of the decision follows a "Victims Right to Review" process instigated by six of the complainants and conducted by David Perry QC.
The CPS statement notes that:
"The review concluded that it was in the public interest to bring proceedings before the court.
In reaching that conclusion, the review agreed that although there is sufficient evidence to prosecute, it is right to assume that Greville Janner will inevitably be found unfit to plead and therefore not fit to instruct his legal team and not fit to challenge or give evidence in a trial. Therefore the most likely outcome of a "trial of the facts" would be an absolute discharge, which is neither punishment nor conviction."
and then the DPP commented:
"I have always said that in my view this was an extremely difficult and borderline case because of the strong arguments on both sides. I have also always emphasised my concern for the complainants in this case. I understood their need to be heard, which is why I contacted Justice Goddard to ensure that they could give evidence as part of the public inquiry. However, the review has concluded that this forum, albeit a public one, cannot substitute for the adjudication of the courts. I accept the outcome of the review and will now be bringing this prosecution to allow for that adjudication to happen.
The case is first listed at Westminster Magistrates' Court on 7 August 2015."
So, where does the case proceed from here?
Certain of the charges (buggery) are such that only the Crown Court has jurisdiction to try them. Other charges (indecent assault) are triable either by the Crown Court (on indictment) or summarily by the Magistrates Court but, in this instance, it would make no practical sense to do anything other than have all charges sent to the Crown Court. Once there, the defendant will almost certainly submit he is unfit to plead. The judge must then decide whether to accept that argument. If it is accepted then it becomes possible to apply the Criminal Procedure (Insanity) Act 1964 section 4A. A jury has then to be empanelled so that there can be a "finding of fact." If the judge were to reject the argument then the case would proceed to trial in the usual way.
Fitness to plead and section 4A:
This is a far from simple area of the criminal law - see, for example, this blog October 2010 - Fitness to Plead.
The mechanism for deciding how then to deal with the consequences of [a finding of unfit to plead] ... is set out in the Criminal Procedure (Insanity) Act 1964 as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and amended by the Domestic Violence, Crime and Victims Act 2004 ...
Under this legislation, there can be a hearing to determine whether the accused "did the act or made the omission" of the offence.
In the recent case of R v Wells, Masud, Hone and Kail [2015] EWCA Crim 2, Sir Brian Leveson P stated (at paras 3 to 5):
3. In the event that a defendant is found to have done the act or made the omission, there is no determination of a criminal charge and no question of conviction or punishment: see the analysis in R v M [2002] 1 WLR 824. Only the act or omission has been proved and there has been no investigation or attempt (even less, a successful attempt) to prove all the constituent ingredients of the offence charged. The powers of the court are therefore not those which follow a conviction but are restricted to measures designed to treat, rehabilitate and support while, in the most serious cases, providing protection for the public.
4. Thus, the court is confined to ordering an absolute discharge, a supervision order or, if appropriately certified by medical practitioners, making a hospital order (with or without a restriction order): see s 5(2) of the Act.....
5. The balance which the legislation seeks to strike, therefore, is to protect the rights and interests of those accused of crime to ensure that their liberty is not adversely affected without the appropriate safeguards of a court having established beyond reasonable doubt that the accused did the act or made the omission charged. On the other hand, the public interest is also protected from those who are proved to have committed the most serious acts but who cannot be tried on the grounds that they are unfit to take part in a trial of the allegations made against them.
The original decision of the DPP has certainly divided both public and legal opinion. The key question is whether it is truly in the public interest to prosecute the case. Given the (almost certain) outcome and the evidence of four medical experts, the DPP originally decided that it was not. Lord Pannick QC agreed with that viewpoint. The review has concluded that it is in the public interest whilst, at the same time, agreeing that the likely outcome will be an absolute discharge. This shows only that the "public interest" element of prosecutorial decision-making is not an exact science and different decision-makers can reach different views. Nevertheless if, as Sir Brian Leveson P indicated, the aim of the legislation is essentially public protection - then the scales should perhaps tip against prosecution in a case (such as this) where there is no suggestion that there is any risk risk to other individuals.
Might the prosecution be an abuse of process?
There have been some suggestions that a prosecution might amount to an abuse of process. It may be most unlikely that the charges will actually proceed to a trial. The greater likelihood is a section 4A hearing as already discussed and that is NOT a trial of the alleged offences. Nevertheless, there is a possibility that a trial might take place if the judge decided that Janner was fit to plead. Would a fair trial trial be possible? That is one ground on which an abuse of process argument might be mounted. There has certainly been massive media coverage of the situation and comments by a number of quite prominent politicians. The law on abuse of process is helpfully set out on the CPS website.
Should the DPP resign?
I think NOT for reasons eloquently set out in this excellent blogpost by The Secret Barrister Why on Earth should the DPP resign over Lord Janner. Those politicians who are suggesting that the DPP should "consider her position" ought to be actually supporting the INDEPENDENCE of the DPP and also the fact that there is a review process applicable to ALL prosecutorial decisions including those of the DPP personally. The CPS operates under the superintendence of the Attorney-General and the Attorney ought to be supporting the process and the independence from political interference of the decision-making process.
What of the Inquiry by Justice Goddard?
The Goddard Inquiry had agreed to consider the allegations against Janner. Whether it will now do so remains to be seen. One reason cited for the decision to prosecute was that the review has concluded that the inquiry, albeit a public one, could not be a substitute for the adjudication of the courts. If the court adjudicates, what then would be the point of the Goddard Inquiry also looking into the matter?
Blogpost - 29th June 2015.
Addendum:
Telegraph 1st July 2015 - Lord Janner is a helpless senile man who should not be prosecuted
Crimeline - The Lord Janner U-turn: What is the public interest in a trial of the act?
- Lord Janner ~ Criminal Proceedings Are At An End
Update - see 19th January addendum below At a hearing before Mr Justice Openshaw, it has been accepted by the Crown Prosecution Service that criminal proceedings against the late Lord Janner are at an end - Statement from the Crown Prosecution Service...
- Modernising The Rules On Unfitness To Plead
The Law Commission wishes to see new rules relating to Unfitness to Plead - a matter that became very topical when Lord Janner was prosecuted in 2015 for alleged sexual offences - (previous post). Janner died in late 2015. Law Commission - ...
- Death Of Lord Janner
The death of Lord Janner of Braunstone has been reported - The Guardian 19th December. The proceedings against him were covered in previous posts -18th April; 29th June; 13th August and 7th December. In April, a decision not to prosecute Janner for 22...
- Lord Janner ~ Unfit To Plead Or Stand Trial
The Judiciary has published the decision of Mr Justice Openshaw regarding whether Lord Greville Janner is fit to plead - read the decision dated 7th December 2015. The learned judge took the opportunity to restate the test for fitness to plead or...
- Lord Greville Janner ~ Procedure In Criminal Cases
Updated 18thSeptember - The Telegraph reported on the first hearing in the Crown Court at which Mr Justice Sweeney excused Janner's attendance. A fitness to plead hearing will take place on December 7 this year, and a provisional trial date has been...
Law and Rights
Lord Greville Janner will now be prosecuted
The various counts are set out in the announcement and are all under the Sexual Offences Act 1956. The law as it stood at the time of the alleged offences is used.
The reversal of the decision follows a "Victims Right to Review" process instigated by six of the complainants and conducted by David Perry QC.
The CPS statement notes that:
"The review concluded that it was in the public interest to bring proceedings before the court.
In reaching that conclusion, the review agreed that although there is sufficient evidence to prosecute, it is right to assume that Greville Janner will inevitably be found unfit to plead and therefore not fit to instruct his legal team and not fit to challenge or give evidence in a trial. Therefore the most likely outcome of a "trial of the facts" would be an absolute discharge, which is neither punishment nor conviction."
and then the DPP commented:
"I have always said that in my view this was an extremely difficult and borderline case because of the strong arguments on both sides. I have also always emphasised my concern for the complainants in this case. I understood their need to be heard, which is why I contacted Justice Goddard to ensure that they could give evidence as part of the public inquiry. However, the review has concluded that this forum, albeit a public one, cannot substitute for the adjudication of the courts. I accept the outcome of the review and will now be bringing this prosecution to allow for that adjudication to happen.
The case is first listed at Westminster Magistrates' Court on 7 August 2015."
So, where does the case proceed from here?
Certain of the charges (buggery) are such that only the Crown Court has jurisdiction to try them. Other charges (indecent assault) are triable either by the Crown Court (on indictment) or summarily by the Magistrates Court but, in this instance, it would make no practical sense to do anything other than have all charges sent to the Crown Court. Once there, the defendant will almost certainly submit he is unfit to plead. The judge must then decide whether to accept that argument. If it is accepted then it becomes possible to apply the Criminal Procedure (Insanity) Act 1964 section 4A. A jury has then to be empanelled so that there can be a "finding of fact." If the judge were to reject the argument then the case would proceed to trial in the usual way.
Fitness to plead and section 4A:
This is a far from simple area of the criminal law - see, for example, this blog October 2010 - Fitness to Plead.
The mechanism for deciding how then to deal with the consequences of [a finding of unfit to plead] ... is set out in the Criminal Procedure (Insanity) Act 1964 as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and amended by the Domestic Violence, Crime and Victims Act 2004 ...
Under this legislation, there can be a hearing to determine whether the accused "did the act or made the omission" of the offence.
In the recent case of R v Wells, Masud, Hone and Kail [2015] EWCA Crim 2, Sir Brian Leveson P stated (at paras 3 to 5):
3. In the event that a defendant is found to have done the act or made the omission, there is no determination of a criminal charge and no question of conviction or punishment: see the analysis in R v M [2002] 1 WLR 824. Only the act or omission has been proved and there has been no investigation or attempt (even less, a successful attempt) to prove all the constituent ingredients of the offence charged. The powers of the court are therefore not those which follow a conviction but are restricted to measures designed to treat, rehabilitate and support while, in the most serious cases, providing protection for the public.
4. Thus, the court is confined to ordering an absolute discharge, a supervision order or, if appropriately certified by medical practitioners, making a hospital order (with or without a restriction order): see s 5(2) of the Act.....
5. The balance which the legislation seeks to strike, therefore, is to protect the rights and interests of those accused of crime to ensure that their liberty is not adversely affected without the appropriate safeguards of a court having established beyond reasonable doubt that the accused did the act or made the omission charged. On the other hand, the public interest is also protected from those who are proved to have committed the most serious acts but who cannot be tried on the grounds that they are unfit to take part in a trial of the allegations made against them.
The original decision of the DPP has certainly divided both public and legal opinion. The key question is whether it is truly in the public interest to prosecute the case. Given the (almost certain) outcome and the evidence of four medical experts, the DPP originally decided that it was not. Lord Pannick QC agreed with that viewpoint. The review has concluded that it is in the public interest whilst, at the same time, agreeing that the likely outcome will be an absolute discharge. This shows only that the "public interest" element of prosecutorial decision-making is not an exact science and different decision-makers can reach different views. Nevertheless if, as Sir Brian Leveson P indicated, the aim of the legislation is essentially public protection - then the scales should perhaps tip against prosecution in a case (such as this) where there is no suggestion that there is any risk risk to other individuals.
Might the prosecution be an abuse of process?
There have been some suggestions that a prosecution might amount to an abuse of process. It may be most unlikely that the charges will actually proceed to a trial. The greater likelihood is a section 4A hearing as already discussed and that is NOT a trial of the alleged offences. Nevertheless, there is a possibility that a trial might take place if the judge decided that Janner was fit to plead. Would a fair trial trial be possible? That is one ground on which an abuse of process argument might be mounted. There has certainly been massive media coverage of the situation and comments by a number of quite prominent politicians. The law on abuse of process is helpfully set out on the CPS website.
Should the DPP resign?
I think NOT for reasons eloquently set out in this excellent blogpost by The Secret Barrister Why on Earth should the DPP resign over Lord Janner. Those politicians who are suggesting that the DPP should "consider her position" ought to be actually supporting the INDEPENDENCE of the DPP and also the fact that there is a review process applicable to ALL prosecutorial decisions including those of the DPP personally. The CPS operates under the superintendence of the Attorney-General and the Attorney ought to be supporting the process and the independence from political interference of the decision-making process.
What of the Inquiry by Justice Goddard?
The Goddard Inquiry had agreed to consider the allegations against Janner. Whether it will now do so remains to be seen. One reason cited for the decision to prosecute was that the review has concluded that the inquiry, albeit a public one, could not be a substitute for the adjudication of the courts. If the court adjudicates, what then would be the point of the Goddard Inquiry also looking into the matter?
Blogpost - 29th June 2015.
Addendum:
Telegraph 1st July 2015 - Lord Janner is a helpless senile man who should not be prosecuted
Crimeline - The Lord Janner U-turn: What is the public interest in a trial of the act?
- Lord Janner ~ Criminal Proceedings Are At An End
Update - see 19th January addendum below At a hearing before Mr Justice Openshaw, it has been accepted by the Crown Prosecution Service that criminal proceedings against the late Lord Janner are at an end - Statement from the Crown Prosecution Service...
- Modernising The Rules On Unfitness To Plead
The Law Commission wishes to see new rules relating to Unfitness to Plead - a matter that became very topical when Lord Janner was prosecuted in 2015 for alleged sexual offences - (previous post). Janner died in late 2015. Law Commission - ...
- Death Of Lord Janner
The death of Lord Janner of Braunstone has been reported - The Guardian 19th December. The proceedings against him were covered in previous posts -18th April; 29th June; 13th August and 7th December. In April, a decision not to prosecute Janner for 22...
- Lord Janner ~ Unfit To Plead Or Stand Trial
The Judiciary has published the decision of Mr Justice Openshaw regarding whether Lord Greville Janner is fit to plead - read the decision dated 7th December 2015. The learned judge took the opportunity to restate the test for fitness to plead or...
- Lord Greville Janner ~ Procedure In Criminal Cases
Updated 18thSeptember - The Telegraph reported on the first hearing in the Crown Court at which Mr Justice Sweeney excused Janner's attendance. A fitness to plead hearing will take place on December 7 this year, and a provisional trial date has been...