Yesterday the CPS announced that Greville Janner, the barrister and Labour peer, would not be prosecuted for historic sex offences. This was following an application of the Code for Crown Prosecutors where they concluded that although the evidential test was met, there was no public interest in a prosecution.
- This article first appeared on Dan’s blog here.
It seems to me that decision of the CPS is plainly right. It is worth reading the full decision of the CPS, where it is explained fully. The CPS sets out the position in relation to the medical evidence :
- 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.
- On the Mini Mental State examination all four doctors were in general agreement as to the level of cognitive ability.
- The condition will only deteriorate, there is no prospect of recovery.
- Manipulation (“putting it on”) is “out of the question”.
- There is no risk of future offending.
In light of that, and the fact that is clear that he no longer presents (if he ever did – see below) any risk to the public, there is clearly no public interest in pursuing a case. It would not be in any real sense a trial, and would not legally be a trial that would determine whether he did anything criminal. The whole process would take at least a year from now to conclude (probably longer), and the trial would be many weeks, if not months, (and very expensive), even if it went its full course.
Two years ago I wrote a piece about the CPS habit of giving press conferences, that time with respect to Dave Lee Travis. I questioned whether it was sensible, or indeed proper, for them to make the statements they do. This applies with even greater force in a case such as this. They have basically stated that Lord Janner is guilty of these offences, but it is not in the public interest to prosecute him.
There is no chance that there would be a libel trial of course, not least because the phrasing is that the evidential test was met. But the implication is clear. This may well be right of course, but whilst, as you can imagine, Twitter has let rip, we should expect more of a public body. Why mention the evidential test? As the pubic interest test is not met, why not just say that (if you have to say anything) and state that the evidential test does not need to be considered as there cannot be a prosecution however serious the case?
This was extremely strong. ‘Following the decision, Leicestershire police issued a statement saying they were considering challenging the decision in the courts.’ The officer in charge said the decision was ‘perverse’ and the police force were ‘exploring what possible legal avenues there may be to challenge this decision and victims themselves have a right to review under a CPS procedure. A police source confirmed that the most likely avenue open to the police would be a judicial review which could take months to come to court.
This is unheard of in my experience.
Anyone who works within the system knows full well that the biggest critics of the CPS are not defence lawyers (or even Judges) but the police. Even so, this never spills out, certainly not in such a strong and public way.
The police state that they are looking at ways they can challenge this. A judicial review would be very expense (but then it’s not their money) and very hard to win. It’s certainly possible to successfully judicially review a decision to not prosecute (I have done previously), but it is a high test, especially when the issue is the public interest test, where the CPS have very wide latitude. There is the possibility that one or more of the complainants could ask for a review, but even if this did apply, this decision was not made lightly and was clearly a high up one. In light of that, there’s not much chance that the review will come up with a different outcome.
The other option is to undertake a private prosecution. Unlike defendants, a prosecutor is entitled to claim their legal costs off the state (even if they lose). I still wouldn’t encourage this, as the outcome will be the same in the sense that he will be unfit to stand trial (and there is a good chance that the CPS might take the case over and drop it and/or a Court may stay it as an abuse of process).
I doubt that any of these will be successful, but the reaction of the police may be one that they come to regret. If for no other reason that the next time there is a decision by the CPS anything less that condemnation by the police will be seen as agreement. But there are wider issues of constitutional concern raised by the police reaction.
Shouldn’t he have been prosecuted before?Yes, as the CPS made clear. He should have been arrested and prosecuted many years ago. It seems that he wasn’t because of his position. That is certainly wrong. Simon Danczuk (MP as was, and will be again soon) said: ‘This terrible decision is bringing the whole justice system into disrepute and will be devastating news to the alleged victims. It sends out an appalling message and suggests we haven’t learned anything from the mistakes of the past’.
I disagree with him, you don’t right the wrongs of the past by creating fresh ones.
This was a sensible, albeit brave, decision of the CPS for which they will get a fair amount of stick. I am certainly no cheerleader for the CPS, but they have got this one right.
Dan is a barrister at 2 Dr Johnson's Buildings practicing mainly in criminal and immigration law. You can follow him on Twitter (@danbunting)