Is there any thing whereof it may be said, See, this is new? it hath been already of old time, which was before us.
King James Bible Job 11:1 – 20.
There is much disquiet in legal circles at the news that Lord Janner will be subjected to a ‘Trial of the Facts’, whilst he is unable to defend himself. An article by Dan Hodges in The Telegraph was particularly widely read. I was stuck by one particular phrase – ‘We are reaching a point where those accused can’t even try to mount a defence’. Hodges then went on to say that he thought the defence was ‘a fundamental part of the legal process’ – and an ‘inviolate part of the British judicial system’.
He is wrong. We are not ‘reaching a point’, a phrase which suggests forward motion; we are stepping smartly backwards to the medieval world – in this the year of the 800th anniversary of Magna Carta – to a point where speaking on oath in his defence was an unheard of privilege for the accused.
A brief 117 years ago, a nanosecond in terms of the British judicial system, the Criminal Evidence Act 1898 was passed, and enshrined the hitherto unthinkable possibility that the accused – formerly thought to be an ‘unreliable witness’ – should be allowed to give sworn evidence in his defence.
Only if a point of law arose, was the accused allowed to have a barrister speak on his behalf – barristers being considered arbiters of law, not of fact. The logic of the early modern criminal trial was to pressure the accused to speak, either to clear himself or to hang himself. His evidence was not given the same value as that of the prosecution witnesses by the simple expedient of not allowing him to take the oath (apparently to forestall the possibility of him going to the hangman’s noose having committed the sin of perjury). Nor, until 1702 were defence witnesses allowed to give evidence on oath in cases of Felony.
Nor is the ‘presumption of innocence’ an ‘ancient tradition’. It wasn’t until 1780 that we saw expressed the notion that ‘every man is to be presumed innocent until til he has been clearly proved to be guilty, the onus of the proof of guilty therefore lies on the accuser, and no man is bound, required, or expected to prove his own innocency’.
Before that it was a case of “if any assumption was made in court about the prisoner himself, it was not that he was innocent until the case against him was proved beyond a reasonable doubt, but that if he were innocent he ought to be able to demonstrate it for the jury by the quality and character of his reply to the prosecutor’s evidence.”
It was also believed at that time, that keeping the accused ignorant of the charges to be laid against him until he actually appeared in court, unaided by a lawyer and without the benefit of swearing to tell the truth, actually gave the jury a better chance of evaluating the accused’s evidence. An accused that was unprepared, probably unused to speaking in public, and having been held in primitive custody, probably unwashed and underfed into the bargain.
Much has been made in the media of the idea that a ‘Trial of the Facts’ will settle the matter once and for all. It will not result in a punitive conviction. Since dementia is not susceptible to treatment, there is no question that Lord Janner will be committed to hospital, and an ‘absolute discharge’ will be the only possible result.
Should, as some have suggested, Lord Janner make a speedy recovery from the dementia that has been diagnosed by four different psychiatrists, that ‘absolute discharge’ will stand. The legislation is silent on the subject of whether he could be retried in the future should he make a miraculous recovery. The statutes neither restrict nor reserve the trial of an offender who becomes ‘fit to plead’ after an order is made.
Those who have pleaded plaintively for a return to medieval judicial processes and wish to see a mentally incapacitated man in the dock for offences he is incapable of defending may live to regret their wish coming true.
Lord Janner’s case is listed to come up at Westminster Magistrates Court on August 7th. Hopefully by then, some in the media will have figured out that this means Lord Janner’s case will be heard by a Magistrate, not a Judge.
The clue is in the name. Westminster Magistrates Court.