In deciding whether or not to prosecute, the Crown Prosecution Service (CPS) applies a two-stage test. The first stage is the evidential stage: is there a realistic prospect of conviction? The second stage is the public interest stage: is it in the public interest to prosecute?
In the well-publicised case of the Labour Peer Lord Greville Janner the CPS has decided, in relation to a number of very serious sexual offences, that the evidential test has been passed. However, four expert clinicians, two instructed by the CPS and two instructed on behalf of Lord Janner, are in unanimous agreement that Lord Janner suffers from a degenerative dementia that is rapidly becoming more severe. He could not engage meaningfully with any trial process. There is no prospect of recovery, and no risk of future offending.
The CPS has decided that a prosecution would not be in the public interest. It has published detailed reasons.
Plainly a regular criminal trial, in which a jury would determine whether Lord Janner was guilty or not, would be impossible. Lord Janner is not fit to plead. That much seems uncontentious, even amongst those who are agitating for some form of prosecution.
What is mooted, though, and addressed specifically in the CPS’s note, is whether a ‘fitness to plead process’ should be launched. The nature of that process is explained by the CPS as follows:
‘There is no determination of the criminal charge, no criminal verdict and no question of conviction or punishment. The powers of the court are “restricted to measures designed to treat, rehabilitate and support while, in the most serious cases, providing protection for the public” (Wells, Masud, Hone and Kail and R [2015] EWCA Crim 2.)’
The CPS decided that such a process would not be appropriate here. This is why:
‘There are….some cases in which such a process may be appropriate in order for example to protect the public either by a hospital order or by a supervision order. However, in this case, the CPS judges that the outcome of such proceedings would not only be without conviction, but would also result in an absolute discharge. The medical evidence establishes both that there is no current risk of re-offending identified and that there is no likelihood of the defendant recovering from his medical condition (and thus that there is no future risk of reoffending either). Balancing these factors with those in favour of prosecution, the balance is that there is not a public interest in commencing criminal proceedings in this case.’
This is an interesting passage. It is significant mainly for what it does not say. In particular it does not say that a crucial part of the public interest is in ensuring that people against whom criminal allegations should not be branded as criminal (whether or not there is any possibility of punishment) if they cannot answer the charges against them.
It is precisely this public interest that is inherent in, for instance, the burden and standard of proof in criminal cases. It is for the prosecution to prove its case, not for the defendant to disprove the case. The prosecution only discharges the burden by making the jury sure of guilt. It is a demanding test. It means that society has decided (quite rightly, I think), that it is worse for an innocent defendant to be convicted than for a guilty one to be acquitted – even if that acquittal results in disappointment, hurt or a feeling of betrayal on the part of the complainant (as is the case in Janner), and even if it results in a dangerous person being let loose to commit further crimes.
It is unfortunate that this constitutionally vital reasoning does not appear in the CPS note.
“Lord Janner is not fit to plead. That much seems uncontentious”
I’m not so sure. It may be quite easy for a highly-motivated, intelligent individual to fool various experts, if well-practiced at deception (as this individual would certainly be, if the accusations are true), and if well-informed as to typical symptoms of dementia. I wonder if they’ve tried keeping him under surveillance in controlled conditions for an extended period.
“In particular it does not say that a crucial part of the public interest is in ensuring that people against whom criminal allegations should not be branded as criminal (whether or not there is any possibility of punishment) if they cannot answer the charges against them.”
It should be possible to undertake a “trial of facts” without this resulting in a conviction, even if the charges are found to be true. It’s not necessarily the case that a “trial of facts” cannot convincingly determine the truth without the participation of the defendant. Many people who never faced trial are known, by ample and conclusive evidence, to have been guilty of criminal behaviour – some on a vast scale.
Nikolas: thank you.
Particularly in the light of the Ernest Saunders debacle, the experts and the CPS were particularly alive to the possibility of deception. It has been ruled out.
A ‘trial of facts’ in which the defendant cannot participate is necessarily a flawed one, isn’t it? The stigma associated with a factual finding of sexual misconduct is immense. The public interest in such a finding would have to be massive to outweigh the detriment to the public interest entailed in there being a process of de facto trial in which the accused was unable to speak in his own defence.
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