The Crown Prosecution Service has announced that Greville Janner will not be prosecuted for sexual offences against boys in Leicester during the 1970s and 1980s.

The CPS says the case passes its “evidential test.” They believe they have evidence which makes a conviction more likely than not. The reason for not proceeding is that, in the view of the Director of Public Prosecutions, Alison Saunders, a prosecution “would not be in the public interest.”

The announcement has been greeted with outrage. According to one, unnamed, complainant quoted on the Leicestershire Police website:

“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?”

It seems quite unprecedented for an investigating police force to quote someone describing an unconvicted individual in such terms.

There are two questions:

Why did Ms Saunders find that a prosecution was not in the public interest?

What can those aggrieved by the decision do about it?

Four doctors, two instructed by the defence and two by the prosecution, have concluded that Janner is suffering from Alzheimers disease. Their findings are summarised by the CPS in this way:

“Lord Janner is suffering from a degenerative dementia which is rapidly becoming more severe. He requires continuous care both day and night.

His evidence could not be relied upon in court and he could not have any meaningful engagement with the court process, and the court would find it impossible to proceed.



…



The condition will only deteriorate, there is no prospect of recovery.



Manipulation (“putting it on”) is out of the question.”

It is possible for doctors to be wrong, of course. One of the “Guinness” fraudsters, Ernest Saunders, for example, was famously freed from prison after serving only 10 months of a 2 ½ year sentence (cut from 5 years by the Court of Appeal), after doctors confidently diagnosed Alzheimers disease. He went on to have a second career as a consultant (while enjoying a useful £75,000 pension from Guinness). His “Alzheimer’s disease” turned out – if we are generous – to be a stress related condition caused by being incarcerated in Ford Open Prison.

But prosecutors must make decisions based upon the evidence that they have, not that which they might wish to have. It would be absurd to proceed on the basis that Janner was fit to stand trial when the medical evidence is entirely to the contrary.

Nevertheless, the fact that he has Alzheimers does not, in itself, mean he cannot be tried. A person who is “unfit to plead” because of his mental state can still be tried, although, if he is found to have done the act of which he is accused he receives neither the same verdict nor the same sentence as an ordinary defendant.

“Fitness to plead” is a somewhat slippery concept which depends to a large extent on law dating from the early nineteenth century. In 1836 a man called Pritchard was accused of bestiality, which at that time was a capital felony. He was unable to speak, although he had learned to read and write in the “Deaf and Dumb Asylum in London.” The jury decided that he was “mute by visitation of God,” and he was allowed to make his plea in writing. The judge then asked the jury to decide three further issues, namely whether he was of sufficient intellect:

“ to comprehend the course of proceedings on the trial, so as to make a proper defence;

to know that he might challenge any [jurors] to whom he may object;

and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.”

In Pritchard’s case, the jury decided that he did not have sufficient understanding to stand his trial. The finding probably saved his life, but the judge, Baron Alderson, decided to commit him to prison “during His Majesty’s Pleasure” anyway. It is somewhat unclear from the report whether any evidence about the bestiality was actually called.

The procedure differs these days. If Lord Janner were to be put on trial it would be for a judge rather than a jury to rule on his fitness to plead. If (as one must assume would be the case) he were found unfit he would, unlike Pritchard, not be committed to gaol. Instead, there would be a trial of whether he “did the acts alleged.” A defence advocate would be appointed to put Janner’s case, as far as possible. Given that much of the evidence only came to light in the last year or two it seems that such an advocate would not have a great deal of material with which to work.

The jury would then decide whether he had “done the acts alleged.” Should it find that he did not, he would be acquitted. If it found that he did commit the acts, he would not be found “guilty” – it being recognised that a finding of “guilt” would be unfair against a man unable to defend himself – but the court would have to make one of three possible orders under S.5 of the Criminal Procedure (Insanity) Act 1964:

(a) A hospital order;

(b) A supervision order;

(c) An order for his absolute discharge.

These are not intended to be punitive, their only purpose is to provide protection to the public and, where necessary, treatment of the defendant. In Janner’s case a hospital order would be pointless (because he poses no risk to anybody and his condition is untreatable), while a supervision order (in effect a probation order) would be a waste of time. The only possible result would be an “absolute discharge,” in other words nothing at all. It was for this reason that Alison Saunders decided that a prosecution would not be in the public interest.

Under the Crown Prosecution Service’s Code for Crown Prosecutors there are a number of questions that have to be considered in deciding whether or not to prosecute. The Code is not just a useful aide memoire for prosecutors. It is produced under S.10 of the Prosecution of Offences Act, and provides “general guidance” which the CPS is required to follow. Nevertheless, it certainly does not answer every question that arises, pointing out:

“The questions identified are not exhaustive, and not all the questions may be relevant in every case. The weight to be attached to each of the questions, and the factors identified, will also vary according to the facts and merits of each case.”

The questions are these:

(a) How serious is the offence committed?

(b) What is the level of culpability of the suspect?

(c) What are the circumstances of and the harm caused to the victim?

(d) Was the suspect under the age of 18 at the time of the offence?

(e) What is the impact on the community?

(f) Is prosecution a proportionate response?

(g) Do sources of information require protecting?

Although the answer to most of these questions do in fact tend to support prosecution, they are, we must assume, outweighed in Ms Saunders’s eyes by (f), the assessment that prosecution would not be a “proportionate” response. Any prosecution would be an expensive and time consuming process and it could not prove Janner’s guilt, or require the Court to punish him. The inevitable result would be either his acquittal or (far more likely given his inability to contest the evidence) a finding that he had committed the acts alleged, followed by his absolute discharge. What is more – although Ms Saunders did not say this – the trial of a man unable to defend himself while a succession of witnesses made a series of unchallengeable allegations against him would be a fairly grotesque parody of justice.

Many people, no doubt including many of the complainants, are furious at the decision. What possible redress do they have?

A review of the decision not to prosecute

The CPS have recently introduced a procedure, known as the Victims Right to Review under which an “interested person” can ask for a decision of the CPS not to prosecute to be reviewed. In a run of the mill case this would involve a more senior prosecutor reviewing a local prosecutor’s decision.

Any alleged victim of Janner’s would qualify as an “interested person” for this purpose:

“a person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct.”

The Leicester Police Force, which investigated the case, and has somewhat petulantly criticised the DPP over her decision, would not do so.

In this case, since the decision not to prosecute was taken by Alison Saunders herself, such a review would be undertaken by the “Appeals and Review Unit” of the CPS. It would undertake a complete review of the decision not to charge, no doubt concentrating on Ms Saunders’s assessment of the Public Interest considerations. Whilst in theory it would have complete freedom to come to a different conclusion from Ms Saunders, if it were to do so it would render her position as DPP very difficult. I would be very surprised if it reached any different conclusion.

There are strict time limits for the review. Complainants must normally make their complaint within 5 days, although there is a discretion to consider complaints made up to 3 months from the decision. The CPS says that it will announce the results of such a review within 6 weeks. Should the Review Unit decide that the DPP’s decision was wrong, then it would still be possible to bring charges against Lord Janner.

Judicial Review of the decision not to prosecute.

In principle it would be open to anyone with sufficient interest in the case to apply to the Administrative Court, in order to ask a Judge to reconsider the decision not to prosecute.

In practice the Administrative Court would only intervene in “highly exceptional” cases (see for example R (F.B.) v. DPP [2009] EWHC 106 (Admin). The question for the Court is not whether it would have made a different decision but whether the DPP’s decision “[was] irrational (e.g. “so unreasonable that no reasonable authority could ever have come to it” or “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” (See for example per Males J. R. (on the application of Grout) v Financial Conduct Authority [2015] EWHC 596 (Admin).

The DPP has a wide discretion in deciding whether to bring charges. As long as she acted on the material available to her, in accordance with both the law and the CPS Code of Practice, and did so in good faith, “uninfluenced by any ulterior motive, predilection or prejudice,” the Court would unquestionably uphold her decision.

3. A Private Prosecution

Anyone has the right to bring a private prosecution. The right is expressly preserved in S.6 of the Prosecution of Offences Act 1985:

(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.

However, those wishing to get around the DPP’s decision should not get their hopes up.

First, most of the likely offences with which Janner could theoretically be charged – Buggery and Gross Indecency, for example – require the consent of the DPP before any prosecution is brought. It seems most unlikely that such consent would be forthcoming.

Secondly, as the legislation makes clear, the DPP has a right, and sometimes a duty to take over a prosecution. Moreover, the current policy of the DPP is to take over and halt any prosecution which it does not consider to be in the public interest. As we know that the DPP considers a prosecution of Lord Janner not to be in the public interest it would seem virtually inevitable that she would take over and halt any such private prosecution.

4. An application to the European Court of Human Rights

Whilst an unreasonable failure to prosecute can amount to a breach of a victim’s right under the European Convention on Human Rights, and whilst the Court has upheld complaints against countries for having failed to prosecute for sexual offences (see for example X & Y v. Netherlands (1985) Application no. 8978/80), this hardly provides a practical remedy. Any complainant would first have to exhaust all his domestic remedies including, probably, an appeal to the UK Supreme Court. Even if, many years later, he was to succeed in Strasbourg the European Court of Human Rights would have no power to force the CPS to prosecute Janner, in the perhaps rather unlikely event that he was still alive.

Of course, had the DPP decided to prosecute, his defence would have argued that it a clearer example of an abuse of the criminal process would be difficult to imagine than the prosecution of a man both incapable of defending himself and incapable of causing any harm in the future, merely in order that he should be absolutely discharged by the Judge. If that failed they would have moved onto something not even considered by the DPP, the torrent of prejudicial material that has been published about Lord Janner that would make an unbiased jury almost impossible to find.

Ms Saunders had a difficult decision to make. For what it is worth, I think it was the correct one.

Two Footnotes:

1. Many apologies for the weird and almost entirely random distribution of italics in this post, whatever I do I can’t manage to get rid of them.

2. Thanks to Greg Callus for pointing me in the direction of the latest learning on the judicial review of a refusal to prosecute. Do follow him on Twitter @Greg_Callus. He is one of the best legal tweeters.

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