Is it ridiculous that the CPS is still considering a ‘trial of the facts’ of the recently deceased Lord Janner? Well, in the context, not quite. If it is ridiculous to have a ‘trial of the facts’ now, it must also have been ridiculous to have a trial on the facts whilst he was still alive.
To explain, it is first worth recalling the circumstances behind the Lord Janner episode. Janner, a Labour peer, barrister and writer, was to be tried for 15 counts of indecent assault and seven counts of a separate sexual offence in relation to nine individuals, most of who were under the age of 16. However, it was not to be an ordinary trial, but rather a trial of the facts. In these proceedings, the jury is asked to decide whether or not the accused did the acts in question. They may be ordered by the Court where the defendant is unfit to plead.
This process of ordering a trial of the facts is actually a relatively recent introduction. Prior to the Criminal Procedure (Insanity) Act 1991, a finding of unfitness to plead led to automatic, indefinite admission to a psychiatric hospital in order to receive treatment. The accused was presumed to have done the facts in question (see, s. 5, Criminal Procedure (Insanity) Act 1964). The 1991 Act introduced a “supervision and treatment order” and an “absolute discharge” as alternatives for admission to hospital, and the Domestic Violence, Crime and Victims Act 2004 replaced the admission order with a “hospital order”, with or without a restriction order, and the “supervision and treatment order” with a “supervision order”.
As a result today, if the jury finds that the accused committed the relevant act, the outcome of a trial of the facts will be:
- A hospital order where the person is suffering from a mental disorder for which appropriate medical treatment is available; and/or a restriction order where it is necessary for the protection of the public from serious harm that the person be subject to special restrictions; or
- A supervision order where the defendant is to be under the supervision of a social worker or probation officer for the period not exceeding 2 years; or
- An absolute discharge.
The 87 year-old Janner was acknowledged to be suffering from degenerative dementia by four medical experts, two each for the prosecution and defence. Indeed, when he appeared in Westminster Magistrates’ in August of this year for a reading of the charges against him, he is said to have uttered “Oooh. Isn’t it wonderful?” before waving as he was led out of the Court. At the same time, the DPP, David Perry QC (who reviewed the case), in addition to Openshaw J at the hearing in the Old Bailey in December were each convinced that there was sufficient evidence to prove beyond a reasonable doubt that Janner committed the acts. Assuming that the acts would be proved accordingly, and as the disease is incurable and his condition decrepit, the only conclusion to the trial of the facts would have been an absolute discharge. Given his state, he would also have played virtually no part in the trial anyway.
Against this background, it does not seem entirely “ridiculous” that a trial of the facts would proceed even though Janner is dead. The trial would merely establish whether the acts were indeed committed. The fact that there will be no order by the court is essentially no different from the absolute discharge which would have happened if Janner were still alive.
That the CPS may proceed with a trial of the facts of a dead man is no more ridiculous than proceeding with a trial of the facts of a man with degenerative dementia. So if the argument is that the proceedings should no longer take place, it must also be that they should not have been pursued in the first place. This becomes especially clear when it is recalled that the “trial of the facts” construct was introduced in order to prevent automatic, indefinite admission to a psychiatric hospital, without actually establishing whether the accused in fact did the acts in question, and thereafter to provide redress instead which more adequately addresses the accused’s state.