Is the CPS really considering putting a dead man on trial?

So, Lord Greville Janner has defiantly – and incomparably selfishly – gone and shuffled off this mortal coil before the various allegations against him can be the subject of a trial of the facts in April next year.

There, one would think, this wholly sorry example of the criminal justice system misfiring at almost every turn grinds to a halt, the remaining forums for an airing of the complaints being the Goddard Inquiry into Child Sexual Abuse or the civil courts.

Or perhaps not. Because following what lawyers assumed was some blue-sky dead-air-filling by former Director of Public Prosecutions Ken Macdonald on Radio 4 today, in which he ruminated on the theoretical arguments in favour of prosecuting a dead man, the Crown Prosecution Service have this afternoon confirmed that this is exactly what they are considering doing:

“Greville Janner faced criminal proceedings for child sex offences, with a trial of the facts scheduled to take place in April 2016.

When a defendant dies during criminal proceedings, it is usual that the case no longer goes ahead following formal confirmation of the defendant’s death at a hearing before the court.

However, we are considering the procedural implications of this specific case. As the High Court will close today until January 11 2016, there can be no hearing before that date.

It is right that this matter is considered properly in open court, and we will therefore not be commenting further ahead of a court hearing.”

Having sought the accumulated wisdom of lawyers far more knowledgeable than myself, I have had confirmed my understanding that this is something that has never happened before in the entirety of British legal history. Indeed, it is unclear exactly how or whether a trial of the deceased would even be lawfully permissible.

Regrettably the usual legal sources are arid on this point. Archbold Criminal Pleading, Evidence & Practice – the leading practitioner text for criminal lawyers – offers a very brief note on the practicalities of discontinuing proceedings on indictment where a defendant dies before trial, but nothing on how the state might persist with a trial in those circumstances. Ditto Blackstone’s Criminal Practice. The many tens of thousands of pages comprising Halsbury’s Laws prove unable to summon up a single instance where the Crown has pursued a prosecution after an accused person has died. One further resource provides a succinct paragraph on discontinuing prosecutions where the accused snuffs it, the plain assumption being that no prosecuting authority in its right mind would continue in those circumstances. Its name? The CPS website.

A trial of the facts, notwithstanding that the defendant (who will have been found “unfit to plead” – i.e. incapable of following the case and providing instructions) cannot and will not meaningfully participate, can be justified on the grounds that the court will, upon a finding that a defendant “did the act”, dispose of the case constructively – normally through the imposition of a supervision order or a hospital order, to assist rehabilitation and protect the public. Of course, in Greville Janner’s case, neither of these outcomes were likely given his age and infirmity, and so the ultimate outcome would only ever have been the third option open to the court – an absolute discharge (which is quite literally nothing). This was the rationale, in fact, for DPP Alison Saunders originally deciding against a trial of the facts – it would achieve nothing.

Now we are in the perverse position where Ken Macdonald can suggest – with a certain degree of artificial logic – that as a trial of the facts would have achieved little in any event, it actually doesn’t matter whether Janner’s alive or not. He was never going to play a meaningful part, so why not just crack on, get the inevitable finding of fact to carve on his gravestone and we can all go home happy. Certainly this is the preferred approach of Liz Dux, the Slater & Gordon lawyer and spokesperson-at-large for the complainants. She – sharing her rather troubling, and recurring, lack of insight into criminal proceedings – was also on Radio 4 this morning, declaring how her clients want the case to go ahead regardless, omitting to mention that this would of course make the compensation claims she is running on their behalf just that little bit easier.

But oiling the wheels for Slater & Gordon collecting their success uplift is not what the criminal process is for. Nor, being less cynical, is it a cathartic pulpit for the futile airing of allegations, however credible. I’ll be gladly corrected and pointed towards the jurisprude who says otherwise, but the criminal process, as I understood it from behind my veil of ignorance, is largely designed to convict and punish the guilty, to help to stop them reoffending, and to protect the innocent. Trying a dead man achieves none of those. Rather the impression one gets is that the CPS, mindful of the (largely misinformed) vitriol tipped over Alison Saunders the first time she tried to put the kibosh on this futile prosecution, are so scared of having to defend their position that they will not only participate in but openly facilitate this farce.

I have every sympathy with any person who has suffered abuse and is seeking justice. But justice is not achieved by sticking a dead man in the dock and pelting him with fruit. And prosecutorial errors in the past are not remedied today by holding what can only be a Putin-esque show trial in which the defendant is, quite literally, a corpse.

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UPDATE: I am obliged to the many contributors on Twitter who are manfully and womanfully scouring the archives for prior examples of posthumous trials in Great Britain. I should point out (not from my own knowledge) to those suggesting the trials of the deceased Regicides in 1660 – they were as I understand convicted by Act of Attainder, not by trial.

Further suggestions welcome.