The DPP was dead right to stop the proposed prosecution of Lord Janner. I’m glad Joshua Rozenburg at least has had the courage to say that. So many other commentators have gone a bit quiet or are equivocating. Where are the tub-thumping human-rights advocates talking about innocence until proven guilty now? Where are the defenders of the mentally-ill? Standing up for human rights is easy when it is popular. It’s much less easy, but most necessary, when it is not. That’s when the true guarantors of such rights step forward; in this case our independent Crown Prosecution Service and, at its head, the DPP.
Let me deal with the criticisms of the DPP and the proposed alternate courses of action put forward in turn:
Boris Johnson, admittedly in an off the cuff radio interview, suggested he would have liked to have seen a second medical opinion on Lord Janner’s fitness to stand trial. A second opinion? How’s about four opinions? – that’s how many medical experts provided reports (two for the Crown, two for the defence) saying that Lord Janner no longer had the mental capacity to follow a trial, to tell his advocates what he wanted to put forward in his defence, or to give evidence on his own behalf.
Crucially, those experts were asked specifically to consider whether Lord Janner could have been ‘putting it on’. They all said no. In the circumstances, it is the law, laid down by Parliament in 1964, that a criminal trial cannot proceed. You can’t try a person who can’t defend himself because you can’t in good conscience impose any punishment.
The only question is whether it would have been appropriate to ask a jury whether Lord Janner ‘committed the acts complained of’ in order to determine whether he constituted a continuing risk to the public and should therefore be detained in a hospital or made subject to the supervision of the Probation Service. If neither protective measure is appropriate the court is required to impose an absolute discharge.
Would it have helped Lord Janner’s alleged victims to have seen him receive an absolute discharge from one of Her Majesty’s judges I wonder? As an 86 year old unable to follow a day’s proceedings in court it is safe to say he does not constitute a danger to the public and so that is the only possible disposal.
Stories that Lord Janner recently signed a letter addressed to the House of Lords, or transferred ownership of his house last year are disquieting, but I’d need hard facts before I’d go against the opinion of four doctors who’ve examined him.
That brings me onto the critique of the decision of the current DPP by one of her predecessors Ken MacDonald QC. He suggested that given the evidence of mistakes by the CPS in the past, the CPS should have put Lord Janner’s case before the court, in order to let a judge make the final decision.
To have done so would have been an utter abrogation by the CPS of its responsibilities. Consider what would have happened: The judge hearing the case would have been confronted with four medical reports all saying the same thing, an Act of Parliament preventing the trial from proceeding and a prosecutor effectively sitting on their hands. It would have been a scandalous waste of public resources for the purpose of one state agency side-stepping an unpopular decision.
From my own experience, I recall a case I prosecuted where I made a decision as to what pleas were acceptable and was roundly criticised by the judge as a result. The next time I had a similar case before him I asked: ‘what should I do?’ He retorted that it wasn’t his business to tell me how to do my job. He was quite right: Prosecuting serious criminal cases is a job that carries huge responsibilities. If you come to a point where you are no longer willing or able to discharge those responsibilities, you are no longer fit to be in that job. Had the DPP shirked her responsibility in this case she would have lost her authority to expect her staff to discharge their responsibilities without fear of criticism in more mundane cases.
But what about the alleged victims of Lord Janner? I can well understand their frustration. They do have a right to review the DPP’s decision and the option to challenge it in the High Court. Furthermore, as set out by the DPP, they will be invited to give evidence in the inquiry into historic sexual offences that is shortly to commence. None of those options will give them the satisfaction of a criminal conviction, but then, given the medical evidence, there are no options which would.
It must be a terrible to be in the situation where someone who has committed crimes against you is walking around free. Yet there are hundreds, if not many thousands, of people in that situation; either because there was insufficient evidence to prosecute their abusers, their abusers were too unwell to stand trial, or the jury simply were not sure of their guilt on the basis of the admissible evidence against them. That is what people forget who only consider the occasional case which hits the headlines. It is the price to be paid for our system of justice and the standards of fairness within it. If we are to have those standards at all, they must apply to the unpopular defendants as well as the popular ones. That is why the DPP was right to halt the prosecution into Lord Janner.
This is a Guest Piece by David Allan