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.

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CPS – breaking new ground?

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.


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.

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Why on earth should the DPP resign over Lord Janner?

I don’t normally blog on serious matters of law. Doing so tends to involve a level of effort, research and legal analysis way beyond my limited capacity, and in any case there are a number of top notch blogs (as listed in the blogroll) with which I can’t, and wouldn’t, compete. But as the allegations against Lord Greville Janner resurface today, with media speculation forecasting that the decision by the Director of Public Prosecutions not to prosecute Lord Janner is likely to be overturned by an independent review, my social media timelines become clogged with the breed of moronity that cries out for a written retributive and restorative thrashing, Basil Fawlty-style.

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The most depressingly brainless suggestion, one which is being tossed around on Twitter, in the mainstream media and by MPs, is that if the independent review concludes in favour of a prosecution, DPP Alison Saunders should resign.

Now I hold no particular torch for the DPP. I am by nature suspicious of any criminal lawyer who restricts themselves solely to prosecuting or solely to defending. Crown Prosecution Service lawyers, particularly those who successfully scramble to the upper branches of the Civil Service tree, tend in my experience to have somewhat calcified pro-prosecution attitudes, and that is before one turns to the systemic obsession with targets and statistics before which successful CPS employees are required to prostrate themselves to secure promotion. Alison Saunders, as a lawyer whose professional post-qualification career has reportedly been mostly spent employed by the Crown Prosecution Service, would therefore not on paper have been my cup of chai for the position of DPP. I also find distasteful that she has not sought to draw back from the culture of self-congratulatory press conferences that it has become customary for the CPS to hold when announcing a charging decision against someone famous (press conferences which are not held, surprisingly, when someone famous is later acquitted). Her pursuit of journalists betrayed an institutional lack of understanding of the offence of committing misconduct in public office. Her comments on consent and rape suggested a troubling confusion over the burden of proof in such cases.

But to resign because an independent review of the evidence reaches a different conclusion to hers as to the public interest in proceeding against a person whom four medical experts concluded could not have any meaningful engagement with the court process”?

That would be insanity. In a non-legal sense.

Unless Alison Saunders misled the public in her statement, or misread the medical reports, or is found to have a car boot full of “I heart Janner” badges, all that a decision to prosecute means is that another lawyer looking at the same facts came to a different conclusion as to what better served the public interest.

The test for launching any prosecution is twofold – firstly, is there a realistic prospect of conviction based on the evidence (the “evidential test”)?; secondly, is a prosecution in the public interest (the “public interest test”)? In Lord Janner’s case, the DPP said that the evidential test was satisfied – that is there was a realistic prospect of conviction based on the evidence gathered. She has not dismissed the complaints as not credible. The only contentious judgment call is whether, based on all the circumstances, including the medical material, it was in the public interest to prosecute. The Code for Crown Prosecutors offers assistance with the interpretation of “the public interest”, but it is mostly fairly obvious.

The arguments for the two camps can be set out as follows:

1) It is plainly not in the public interest to prosecute. Four medical experts, including two instructed by the prosecution, found Lord Janner incapable of engaging with the court process. He would inevitably be found unfit to plead by a Judge, pursuant to section 4A of the Criminal Procedure (Insanity) Act 1964. This would mean no criminal trial and no conviction – all that would follow is a “determination on the evidence” in which uncontested, unchallenged prosecution evidence is put before a jury to show that the defendant “did the act…charged against him”. The ultimate outcome where the act is proved can only be one of the following:

  1. a) a supervision order;
  2. b) a hospital order;
  3. c) an absolute discharge (i.e. no action is taken at all);

Due to the age of the alleged offending and Janner’s current medical diagnosis, neither (a) nor (b) will be ordered, and so the complainants will be put through the ordeal of giving evidence, and the public will be put to enormous expense, for an outcome where there is no conviction and no action taken at the conclusion. The public interest is against this.

And:

2) It is plainly in the public interest to prosecute. The medical evidence can be tested in court by the Judge. He or she may find that, in fact, Lord Janner is fit to plead, and that a trial can take place. If the court finds that Janner is unfit to plead, there can be a determination on the evidence where the complainants can be heard. Even if the ultimate disposal of the case is an absolute discharge, there will have been a finding of fact which provides the complainants with some vindication, and due process will have taken place. The allegations are extremely serious and the public interest is in favour of bringing such allegations before the courts.

Surely any rational person can see the force in either of those two positions. You may favour one over the other, but to suggest that to arrive at (1) is so unreasonable, so out of kilter with the concept of the public interest that any person adopting that position should lose their job, is not only unsustainable, but dangerous.

The DPP is a politically independent position, notwithstanding the unedifying spectacle of grandstanding MPs scoring political capital out of her decisions. That we have a working system of review for prosecution decisions is to be celebrated, not used as a truncheon to bludgeon the career of any lawyer who makes an evaluation that arouses controversy.

All that a resignation from Alison Saunders means is that any future DPP – and any current CPS charging lawyer – will always militate in favour of prosecuting, out of fear for their security of tenure should the MP for Rochdale – without having even seen the evidence – take a different view.

Prosecutions would be brought, not in the public interest, but in the personal interest of civil servants keeping their jobs.

How on earth is that a good idea?