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| The Lord Janner U-turn is the CPS’s own fault | The Lord Janner U-turn is the CPS’s own fault |
| (about 2 hours later) | |
| The Crown Prosecution Service has only itself to blame for the U-turn that has left Lord Janner facing criminal proceedings for child sex offences. The CPS should have thought more carefully before introducing its so-called victims’ right to review policy two years ago. | The Crown Prosecution Service has only itself to blame for the U-turn that has left Lord Janner facing criminal proceedings for child sex offences. The CPS should have thought more carefully before introducing its so-called victims’ right to review policy two years ago. |
| Under this scheme, victims of crime can ask the CPS to reconsider a decision not to prosecute suspects in their case. Keir Starmer QC, who headed the CPS as director of public prosecutions, promised in 2013 that “if a charge is justified and there are no legal barriers to prosecution, the mistake will be put right”. In the past year, 200 prosecutions have been brought under the scheme. | Under this scheme, victims of crime can ask the CPS to reconsider a decision not to prosecute suspects in their case. Keir Starmer QC, who headed the CPS as director of public prosecutions, promised in 2013 that “if a charge is justified and there are no legal barriers to prosecution, the mistake will be put right”. In the past year, 200 prosecutions have been brought under the scheme. |
| Did Starmer ever envisage that he or his successors might have their own decisions reviewed? Guidance published last year acknowledges that an internal appeals unit might have to review a decision taken personally by the DPP, now Alison Saunders. The guidance does not promise that prosecutions will invariably be brought if the original decision turns out to have been wrong: sometimes that might be impossible. But it does say that, in order to maintain public confidence, it may be necessary to begin or reopen criminal proceedings after a review. | Did Starmer ever envisage that he or his successors might have their own decisions reviewed? Guidance published last year acknowledges that an internal appeals unit might have to review a decision taken personally by the DPP, now Alison Saunders. The guidance does not promise that prosecutions will invariably be brought if the original decision turns out to have been wrong: sometimes that might be impossible. But it does say that, in order to maintain public confidence, it may be necessary to begin or reopen criminal proceedings after a review. |
| Related: Lord Janner to be prosecuted over child sexual abuse claims - Politics live | Related: Lord Janner to be prosecuted over child sexual abuse claims - Politics live |
| What happens when an internal reviewer – or an independent QC such as David Perry, who was briefed by Saunders to review the Janner case – disagrees with a decision that the DPP herself has taken? Though Perry’s recommendation to bring proceedings was not binding, Saunders had little choice but to accept it. But Perry does not appear to have persuaded Saunders herself that her earlier decision was wrong and so she now finds herself bringing a prosecution against her better judgment. What sort of impression is that going to make on a judge? | What happens when an internal reviewer – or an independent QC such as David Perry, who was briefed by Saunders to review the Janner case – disagrees with a decision that the DPP herself has taken? Though Perry’s recommendation to bring proceedings was not binding, Saunders had little choice but to accept it. But Perry does not appear to have persuaded Saunders herself that her earlier decision was wrong and so she now finds herself bringing a prosecution against her better judgment. What sort of impression is that going to make on a judge? |
| The right-to-review guidance should have made it clear that, in those cases where the DPP is unpersuaded by the advice of an independent reviewer, the original decision should stand and victims should be left to bring a private prosecution or seek judicial review of the DPP’s decision through the courts. | The right-to-review guidance should have made it clear that, in those cases where the DPP is unpersuaded by the advice of an independent reviewer, the original decision should stand and victims should be left to bring a private prosecution or seek judicial review of the DPP’s decision through the courts. |
| The corner that the DPP has painted herself into is even smaller in the Janner case. That is because there is no disagreement between Saunders and Perry over the sufficiency of the evidence against the former MP. As she said in April, there is enough evidence to charge Janner with indecent assaults and buggery on nine individuals – charges that his family have always denied. And there is no doubt that Janner is suffering from a degenerative dementia which is rapidly becoming more severe. Perry shares the DPP’s assumption that Janner will be found unfit to defend himself. | The corner that the DPP has painted herself into is even smaller in the Janner case. That is because there is no disagreement between Saunders and Perry over the sufficiency of the evidence against the former MP. As she said in April, there is enough evidence to charge Janner with indecent assaults and buggery on nine individuals – charges that his family have always denied. And there is no doubt that Janner is suffering from a degenerative dementia which is rapidly becoming more severe. Perry shares the DPP’s assumption that Janner will be found unfit to defend himself. |
| So the only question is whether there should be what is called a trial of the facts. Under the Criminal Procedure (Insanity) Act 1964 a judge may decide, on medical evidence, that a defendant is unfit to plead. The trial, if it has started, must stop. Instead, the jury is asked to decide – on the basis of evidence adduced by prosecution lawyers and after hearing court-appointed defence lawyers – whether or not the accused did the acts he is charged with. | So the only question is whether there should be what is called a trial of the facts. Under the Criminal Procedure (Insanity) Act 1964 a judge may decide, on medical evidence, that a defendant is unfit to plead. The trial, if it has started, must stop. Instead, the jury is asked to decide – on the basis of evidence adduced by prosecution lawyers and after hearing court-appointed defence lawyers – whether or not the accused did the acts he is charged with. |
| This is not a trial, as such, because the defendant cannot put forward a defence. For that reason, there can be no verdict of guilty and the court cannot pass sentence. All it can do is to make a hospital order, a supervision order, or an order for the defendant’s absolute discharge. The purpose of this procedure, as explained by the courts, is to ensure that a defendant’s liberty is not restricted if no crime was ever carried out. | This is not a trial, as such, because the defendant cannot put forward a defence. For that reason, there can be no verdict of guilty and the court cannot pass sentence. All it can do is to make a hospital order, a supervision order, or an order for the defendant’s absolute discharge. The purpose of this procedure, as explained by the courts, is to ensure that a defendant’s liberty is not restricted if no crime was ever carried out. |
| Saunders considered this option and concluded that the outcome would inevitably be an absolute discharge. For that reason, she concluded that it would not be in the public interest to go ahead with criminal proceedings. I supported the DPP’s decision at the time. She had to take it without consulting the attorney general, who supervises her work: as an MP himself, the attorney is not consulted on cases involving past or present colleagues. | Saunders considered this option and concluded that the outcome would inevitably be an absolute discharge. For that reason, she concluded that it would not be in the public interest to go ahead with criminal proceedings. I supported the DPP’s decision at the time. She had to take it without consulting the attorney general, who supervises her work: as an MP himself, the attorney is not consulted on cases involving past or present colleagues. |
| What Perry has now concluded is that a trial of the facts would be in the public interest. There is no disagreement about the likely outcome – which will probably still be an absolute discharge if the case gets that far. But Perry appears to have taken the view that the decision-making process – and the evidence of Janner’s dementia – need to be put to a court for all the world to see. In his view, the long-awaited and much-delayed Goddard child abuse inquiry is no substitute for an adjudication by the courts. | What Perry has now concluded is that a trial of the facts would be in the public interest. There is no disagreement about the likely outcome – which will probably still be an absolute discharge if the case gets that far. But Perry appears to have taken the view that the decision-making process – and the evidence of Janner’s dementia – need to be put to a court for all the world to see. In his view, the long-awaited and much-delayed Goddard child abuse inquiry is no substitute for an adjudication by the courts. |
| This is not a trial, as such, because the defendant cannot put forward a defence | This is not a trial, as such, because the defendant cannot put forward a defence |
| So this comes down to a difference of opinion about what is in the public interest. And even though Perry is a highly experienced and well-respected prosecutor, that’s not a question he is usually asked to consider. Perry has often been briefed to advise on whether there is sufficient evidence to justify bringing specific charges. But decisions on whether a specific prosecution would be in the public interest are normally taken in house by CPS lawyers. | So this comes down to a difference of opinion about what is in the public interest. And even though Perry is a highly experienced and well-respected prosecutor, that’s not a question he is usually asked to consider. Perry has often been briefed to advise on whether there is sufficient evidence to justify bringing specific charges. But decisions on whether a specific prosecution would be in the public interest are normally taken in house by CPS lawyers. |
| So Saunders has been forced by her own policies to subcontract a judgment that she was better equipped to make. It will be interesting to see whether the courts allow the case to proceed as far as a trial of the facts. Janner’s lawyers are likely to argue that this would be an abuse of process. And the courts may stop the case if it concludes that the former MP is unfit to plead. Whatever happens, it is highly unlikely that Janner will ever be seen in court – not even at the hearing currently listed for 7 August. | So Saunders has been forced by her own policies to subcontract a judgment that she was better equipped to make. It will be interesting to see whether the courts allow the case to proceed as far as a trial of the facts. Janner’s lawyers are likely to argue that this would be an abuse of process. And the courts may stop the case if it concludes that the former MP is unfit to plead. Whatever happens, it is highly unlikely that Janner will ever be seen in court – not even at the hearing currently listed for 7 August. |
| In the end, the disagreement between the DPP and her external counsel is not very great. Both agree that Janner cannot be tried for the offences alleged against him. The only question is whether public money should be spent on bringing the allegations out into the open ahead of the Goddard inquiry. And that’s a much easier question to answer in the affirmative when the money does not come out of your own, much-reduced budget. | In the end, the disagreement between the DPP and her external counsel is not very great. Both agree that Janner cannot be tried for the offences alleged against him. The only question is whether public money should be spent on bringing the allegations out into the open ahead of the Goddard inquiry. And that’s a much easier question to answer in the affirmative when the money does not come out of your own, much-reduced budget. |
| Saunders and Perry undoubtedly agree that it would have been better if proceedings had been brought against Janner when he was in a position to stand trial. They disagree over where the public interest lies. The DPP may yet be vindicated by the courts. Despite what some people have claimed, this is not a resigning matter. | Saunders and Perry undoubtedly agree that it would have been better if proceedings had been brought against Janner when he was in a position to stand trial. They disagree over where the public interest lies. The DPP may yet be vindicated by the courts. Despite what some people have claimed, this is not a resigning matter. |
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