We don’t try dead people – Lord Janner trial of facts not...

We don’t try dead people – Lord Janner trial of facts not to proceed

Photo from the Guardian


We have covered the case of Lord Janner on many occasions in the last year, ending with the finding that he was unfit to plead in December.

When he died just before Christmas, every lawyer thought that there was no question but that that would be the end of it – case closed (literally).

However, there was speculation that the case would be able to proceed (see the Legal Cheek coverage here). It is fair to say that nobody involved in the law seriously thought that this would happen.

But this did spark interest from various people suggesting that this would be the best way forward in such a high-profile case.


What happened?

Sadly for those who wanted to make legal history, these hopes came to the (inevitable) end on 15th January 2016 when a Judge at the Old Bailey formally noted that the proceedings was at an end.

The traditional way of ending the case is to endorse the following on the indictment “Inspector X having given evidence that on the X date of Y month of Z year he identified, in the NAME mortuary the dead body of a man alleged to have died there on 19th December 2015, as being the man arrested by him on DATE on the charge mentioned in this indictment and as being the man subsequently charged and committed for trial to this court on this charge; it was ordered that the indictment be endorsed as aforesaid and be declared now of no legal effect and that the file be closed unless and until the court, on cause being shown, otherwise orders” and stopping the proceedings.

Nowadays, there’s no need for that formality, and the death of Lord Janner is well known.

At the Old Bailey, the prosecutor “Richard Whittam QC said on Friday that the law provided no circumstances whereby a dead defendant could face a trial, even a trial of the facts.


Is that the end of the criminal proceedings?

Yes. It has always been the case, and this is the first time that it has been suggested that we try the dead.

When you think about it, it does make sense – where do you stop historically? Is this really the best use of very tight resources in the CJS?

There are various other issues that this would throw up. Take the case of David Smith, the former chauffeur of Jimmy Saville who took his own life on the day he was due to stand trial for historic sex offences – could he be tried posthumously for perverting the course of justice for the act of committing suicide as well as the other offences?


But what about the victims?

Alleged victims at this stage, despite all the publicity.

The purpose of the criminal courts is to assess whether an individual has broken the law and, if so, to punish them. Although obviously the victim is at the heart of the process (especially nowadays), technically a defendant is prosecuted for the harm to society as a whole, rather than an individual wrong.

Once someone has died, this purpose has finished. The complainants are free to sue in the Civil Courts and it is likely that this will feature at the Goddard Inquiry.

In any event, the BBC reported that even though the trial of issue has finished “an investigation into allegations not just against Lord Janner but against other individuals is “live and will continue“.

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


  1. “At the Old Bailey, the prosecutor “Richard Whittam QC said on Friday that the law provided no circumstances whereby a dead defendant could face a trial, even a trial of the facts.””

    It would be more interesting to consider not what the law currently provides in such disgraceful circumstances but what would be in the interests of public policy.
    I dislike the self-congratulatory assumption that a trial of the facts in such cases would not be in the public interest. DB asks “where do you stop?” And, quite disgracefully, he describes the complainants as “alleged victims”.
    DB needs to get out of his legal bubble and consider whether the law is serving its purpose, here.

    • The purpose of the criminal law for the last 800 years is to determine who is guilty of an offence in order to punish them for a variety of reasons. Where someone is dead, these arguments all disappears.

      The complainants/alleged victims (nothing disgraceful in calling them that) are free to instigate civil proceedings. What would be the advantage of a criminal trial over a civil one?

  2. It is not the case that the criminal courts exist simply to determine guilt “in order to punish”. The situation is much more complex than that, as the availability of the discharge disposals, alone, show.

    The expression “alleged victims” is feeble, patronising, and indirectly disparaging to complainants.

    The fact that an idea has been around for 800 years has to be the weakest conceivable defence of any proposition in jurisprudence. I think we might also reflect on the fact that this decision is founded on the same, “public interest”, test that was, presumably, used to excuse the gentleman from trial on previous occasions. Only the state and its reputation stood to lose from a trial of the facts in this case.

    • As I said – what is the difference in satisfying the public interest between a criminal trial and a civil trial?

      They are alleged victims because they are complainants – people who are alleging that they are victims.

      The decision to stop the trial has nothing to do with the ‘public interest’. I can’t see how the state’s reputation would be effected at all by continuing with a prosecution, other than diminishing its standing by making us the only country that prosecutes dead people (with the possible exception of Russia).