Lord Janner Prosecution – Comment

    Lord Janner Prosecution – Comment

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    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

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    Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

    11 COMMENTS

    1. Legal insight on following questions would be gratefully received:
      1) Does DPP’s decision set a legal precedent for future cases?
      2) Does DPP’s decision open the door to appeals by recently convicted dementia sufferers?
      3) Is there a legally-defined scale of dementia? If not, should the DPP be the person defining the point on the scale where prosecution is legal, or should this by a Parliamentary decision?
      4)Is legal aid available for defendants who require senior mental health consultants to advise on level of dementia, or is this a defence only the wealthy can acquire?
      5) If I lack mental capacity in 2009, is it lawful for me to remain a legislative member of parliament/Lords; vote on legislation after diagnosis; claim expenses , or have monies claimed in my name?
      6)If it was not lawful in 2009 and beyond for me to participate in legislation, can anyone claiming such expenses on my behalf, in knowledge of my impairment, be prosecuted — even if I can’t due to my impairment?
      7) If someone “enabled” me to attend the House of Lords after 2009, knowing that I was mentally impaired (ie. arranged transport, organised a political office etc), have they committed any offence?
      8) If I was mentally impaired to a point where it was deemed I was unable to answer police questions about serious allegations, could I legally authorise the transfer of assets to family members?

      • In brief :
        1) No
        2) No
        3) No, here it’s got to be a case by case decision
        4) Yes (any reports would be covered for court by legal aid. Here, the reports would have been paid for by Lord Janner privately)
        5) Yes (but see the is the House of Lords (Expulsion and Suspension) Act 2015)
        6) N/A
        7) No
        8) Yes, there’s different tests.

        Sorry they’re so short, but very tired. And can elaborate on any of these if you want?

    2. The problem with DB’s post is that it assumes that the existing dispensation is fine.
      I don’t think that it is.
      Regardless of whether, under current rules, the DPP was “right”, or arguably right;
      in this case the more important question is why following, for example, Ernest Saunders and Augusto Pinochet, all cases of this grave sort should not first be put before a court.
      Could DB please explain how the present case, involving the DPP’s denial of formal public notice of allegedly repeated pederasty and gross abuse of power, shouldn’t warrant court scrutiny?
      and why it shouldn’t prompt a fundamental reconsideration of the DPP’s current discretion?

      • I didn’t actually write the post (see the bottom for the author) – it’s in my name as I posted it, but happy to answer questions if I can help.

        What do you mean by ‘dispensation’?
        On the other point, it’s an interesting question. I have previously argued (unsuccessfully) for great court scrutiny of the CPS process, but can see both sides. I’m also not sure what you mean by “how the present case, involving the DPP’s denial of formal public notice of allegedly repeated pederasty and gross abuse of power, shouldn’t warrant court scrutiny?”

    3. It seems to me that the worst aspect of all this is that the DPP has shredded Janner’s reputation without giving any possibility of redress for him or his family. If she had just said they weren’t going to prosecute because of his health, that would be OK, but by saying that there is sufficient evidence, she has given the world the impression that they know he’s guilty but their hands are tied. This seems highly improper to me.

    4. Good piece Dan, sorry I missed that one first time.

      I also agree with your comments about the decision to set out so much detail about the offences Lord Janner won’t be prosecuted for, although I suspect it is nothing compared to what is going to come out in the inquiry and the press.

    5. “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”

      I disagree with this statement. A person with dementia may lack capacity in one area but not others. The risk may even be increased. As a previous care home manager I would be drafting up a risk assessment to protect everyone (including the 86 year old so no further allegations could arise or the care home seen as negligent in not monitoring potential risks).

      A person with dementia may become a bad driver but that might not stop them driving given the opportunity.

    6. Is this the same Lord Janner that wrote and signed a letter to the Lords stating he will be absent from proceedings just two weeks before the DPP decision ? Well it surely is. So is he really that unfit to stand trial ?

      Despite some comments in the press I think its been a relatively quiet reponse to the decision. Imagine the outrage and bile if Janner was a Tory, the left wing Twatterati would be howling for months until the decision was reversed.

      Its also strange that the CPS and DPP seem to go after anyone the police want them to go after whether there is any actual evidence or not (think Jim Davison’s arrest), but miraculously a politician’s case is dropped. Well I never, who’d have thought it ?

      • I believe there are several debatable questions. The question of testing severity of dementia is one — as a daughter of a very intelligent person who suffered from dementia, I can testify that the mental tests are easy to fool one way or another because so often the results are pronounced by experts with a particular axe to grind and also the test ignores the fact that intelligent individuals develop coping strategies.
        Secondly, I would suggest that when money comes into play, there is a great temptation for people to play the system and dementia diagnosis opens the floodgates.

        Jenner’s children appear respectable. Yet, their rush to seize control of his assets, while declining to turn off the income stream (public purse, HOL payments) do the Janner family a disservice and suggest to the outside world that either he is not demented, or, they are exploiting him.

        If there is evidence that he has been demented for a number of years, then any public purse claims as a legislator should be declared void and claimed back. Anyone who made those claims on his behalf should be made to account for their actions, and, if appropriate charged with malfeasance in public office. Anyone who has booked Parliamentary facilities, including dinners, conferences etc, within Parliament should be charged with the same because they have clearly been attempting to
        exploit an incapacitated individual.
        As Lord Janner, according to CPS, is beyond Justice, let us at least harry those who have been protecting him and accessing the Lords in his name during his supposed dementia.

    7. Its just been pointed out on a different blog in relation to the recent conviction of the Nazi death camp guard, that Janner was the head of various Jewish groups and demanded that alleged Nazi’s should be hunted down and tried at any age or state of health.

      Politicians eh ? One rule for them and one for others.

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