Lord Greville Janner’s loyal family and supporters are fighting a futile battle to preserve his reputation in the face of the disingenuous statements from both the CPS and the Leicestershire Police.
The CPS laid emphasis on the ‘evidential test’:
The evidential test involves an assessment, on the then state of the evidence, by the CPS as to whether that evidence provides a realistic prospect of conviction.
‘Realistic prospect‘. That does not mean the evidence WILL result in a prosecution:
The CPS assessment of any case is thus not in any sense a finding of, or implication of, any guilt or criminal conduct. It is not a finding of fact, which can only be made by a court, but rather an assessment of what it might be possible to prove to a court.
However, in the case of Lord Janner, the CPS then went on to say that having applied the ‘Public Interest test’ – it had concluded that it was NOT in the public interest to pursue the prosecution.
Even the Leicestershire Police appear to have misunderstood the meaning of these words, issuing a statement, apparently ‘at the request’ of a complainant that I find little short of disgraceful:
“This animal is still being protected because [of his status] and isn’t able to stand trial. They say that it’s not in the public interest, but isn’t it in the public interest to know what his victims have gone through at the hands of this man?
“If he was an everyday person with a normal life and job, justice would [have] been served, but as it stands we victims are just being pushed to the ground again and walked over.
The Police then issued their own statement:
“We are exploring what possible legal avenues there may be to challenge this decision and victims themselves have a right to review under a CPS procedure.”
The combination of these various statements has given rise to a great deal of anger – cherry picking ones way through them, it is argued, that a conviction against Lord Janner would be a foregone conclusion – i.e. the allegations are fact – and that it is only the intransigence of the Director of Public Prosecutions and her alleged determination to protect a member of the establishment from prosecution that is preventing the alleged victims from getting ‘justice’.
The phrase ‘public interest’ is one commonly misunderstood. It doesn’t refer to ‘things the public are interested in’. So, the public might be interested, indeed utterly fascinated, by all manner of things, including the gory details of what Lord Janner is alleged to have done. But sating the public’s curiosity is not the function of the judicial system. Nor is it there to provide a public platform for allegations so they can be repeated for the sake of newspaper circulation.
What is in the ‘public interest’ is that we have a judicial system which acts as an impartial referee between allegations and defence. Listens to both sides, and provides a full stop to the argument by ruling in favour of one or tother.
Imagine you had been involved in a car accident; seriously ill, you lie in a coma for some months. When you finally awake, it is to find yourself handcuffed to the bed; shortly afterwards stout men arrive and transport you to Pentonville where you find you are serving a life sentence for murder. Whyfore? Well, whilst you were unconscious, the driver of the other car who had deliberately hit you, went to court and swore blind that you had deliberately caused the accident – he was believed, and in your absence you were sentenced to life imprisonment. You would surely be the first to scream blue murder that this was unfair, and that you hadn’t been able to defend yourself.
That is why it is not ‘in the public interest’ that we establish a precedent for proceeding with a prosecution where one or other party is unable to take part in the proceedings.
There are legal conventions for proceeding with a prosecution where one or other party is unwilling to take part; there are legal conventions for proceeding with a prosecution where someone who is unable, through mental illness, to take part in the proceedings – but who still poses a risk to the general public – to establish the facts for the purpose of incarcerating them in a mental hospital so that they cannot harm anyone else, but that would be inappropriate and unnecessary in this case. We are talking about an 86 year old man here, not a 35 year old fit and healthy individual, perfectly capable of reoffending.
Ken Macdonald QC, stung by criticism that he should have proceeded with a prosecution in 2007 when he was head of the Crown Prosecution Service, has said that the decision whether Lord Janner would stand trial ‘should have been left to a judge’.
It is true that the final decision as to whether someone has the capacity to take part in a trial is ultimately that of the Judge – who will ask to be guided by medical expert opinion. Judges are not Doctors. So we could have had a situation whereby the day of the trial arrived, a muddled Lord Janner was guided through the throngs of flashbulbs, media and anti-abuse campaigners to stand in front of the Judge.
Four expert medical opinions, two appointed by Lord Janner’s legal team, one by the Police and one by the CPS, were all in agreement that Lord Janner has suffered from Alzheimer’s disease since 2009 – it has now, after six years, progressed to the point where he does not have the mental capacity to understand or retain what is said to him, nor does he have the capacity to weigh up such information or communicate an intelligible answer.
No Judge has ever, nor will do so now, hold himself out to have superior ability to diagnose Alzheimer’s disease from the bench – he will bow to medical opinion. Alison Saunders knows that full well – as does Ken Macdonald – What Ms Saunders has done is preempt a ‘show trial’ situation, whereby an elderly and unwell man is led through a howling mob merely in order for a Judge to agree, as she has done, that the medical opinion is that he should not be there.
That is not to have zero sympathy with the howling mob. They are outraged on behalf of the alleged victims that a man ‘could have been’ prosecuted in 2007 and wasn’t. They will get answers to their questions; the CPS have appointed the Right Hon Mr Justice Henriques, a man so highly qualified for this task that one wonders why he was not suggested as a possible chair for the statutory inquiry into child sexual abuse, to investigate the circumstances of the previous non-prosecutions.
My real sympathy is reserved, not for those ‘outraged on behalf of’, but for those who believe themselves to have been abused. The present state of affairs seems iniquitous. They are landed with an alleged abuser who is neither dead – in which case they could sell their stories to the media and publish without fear of defamation charges, nor do they have an alleged abuser who is able to be hauled into court – at least, not the sort of court they had imagined.
However, there is another solution. It has been said:
[The] ruling means nine alleged victims will never have the chance to have their claims tested in court.
Why not have a ‘finding of fact hearing’ held within the auspices of the Court of Protection with the Official Solicitor acting on behalf of Lord Janner? He has been judged to not have mental capacity, therefore he is entitled to the protection of that court. This would mean that the alleged victims do have the chance to have their claims tested in court.
What it wouldn’t mean is that the rest of the prurient public were party to the proceedings. Under the new Court of Protection Rules, it is up to the Judge how much he reveals of cases he hears, and although transparency is to be preferred, it is not a necessity. Journalists can be admitted to the hearing, but bound not to repeat anything they may hear. The Administration of Justice Act 1960 causes any attempt to publish, even by word of mouth, what has occurred during such hearings, as contempt of court.
In such a ‘finding of fact’ hearing 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’ – in Lord Janner’s case, none of these measures would be appropriate, he is not a danger to anyone but himself. It would inevitably 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).
It would, however, give the alleged victims the opportunity to have their day in court, and thus the justice they crave – without leaving a vulnerable mentally incapacitated individual in the position of having his reputation publicly trashed without redress.
I would be in favour of similar court hearings – in front of lay observers such as journalists and a jury, bound by confidentiality – hearing all cases of sexual abuse. The victims deserve justice – but justice doesn’t have to involve the rest of us poring over the gory details, nor careers being built on publicising the details of what identifiable marks were on the man’s penis…
We already bind Juries to confidentiality as to what goes on in the jury room, without anybody claiming that this is ‘secret justice’. Lord Janner’s case, and the question of mental incapacity, has made me realise that it wouldn’t be impossible to set up courts along the lines of the Court of Protection that would be fairer to both parties in sexual abuse cases, and where the defendant did have capacity, that he be punished accordingly.
The Media and the charities would absolutely hate the idea of course – but this isn’t about them is it? It’s about the victims and the defendants.