The two-stage test:
The Crown Prosecution Service (CPS) applies a well-known two-stage test in deciding whether to prosecute: (1) the evidential test and (2) the public interest test. The CPS considered the evidential test to be met in relation to all the allegations. However, the CPS decided that the public interest test was not met.
The statement notes:
'At the outset, it is emphasised that but for medical considerations, it would undoubtedly have been in the public interest to prosecute. Public interest factors in favour of a prosecution include that the allegations are of very serious offending; the complainants were young, vulnerable children and the allegations involve the alleged abuse of power and position. The CPS equally has no doubt that, if the correct decisions had been taken about the evidential test in relation to the previous investigations, the public interest test would have been passed and prosecution should have followed.'
It then continues:
'Four medical experts, all experienced and highly qualified, have examined Lord Janner - two instructed by his own legal team, two by the police and prosecutors. The most recent medical report is dated 31 March 2015. The key findings are as follows:
- 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.
'... Lord Janner would inevitably be found not fit to plead, not fit to instruct his legal team and not fit to challenge or give evidence in a trial. That means that a criminal trial, to determine whether or not he was guilty of any offence, could not now properly take place.'
Fitness to plead:
The question of what is usually referred to as "fitness to plead" therefore had to be considered. This is a far from simple area of the criminal law and this blog took a brief look at the subject in October 2010 - Fitness to Plead. See also the recent decision of the Court of Appeal in R v Wells, Masud, Hone and Kail  EWCA Crim 2 where Sir Brian Leveson P stated:
'The mechanism for deciding how then to deal with the consequences of [a finding of unfit to plead] ... is set out in the Criminal Procedure (Insanity) Act 1964 as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and amended by the Domestic Violence, Crime and Victims Act 2004 ...'
Under this legislation, there can be a hearing to determine whether the accused "did the act or made the omission" of the offence. Such a hearing is referred to as a section 4A hearing. As the Wells case shows, this can raise some difficult problems. Paragraphs 3 to 5 of Sir Brian Leveson's judgment in Wells are worth noting here - [my emphasis added]:
3. In the event that a defendant is found to have done the act or made the omission, there is no determination of a criminal charge and no question of conviction or punishment: see the analysis in R v M  1 WLR 824. Only the act or omission has been proved and there has been no investigation or attempt (even less, a successful attempt) to prove all the constituent ingredients of the offence charged. The powers of the court are therefore not those which follow a conviction but are restricted to measures designed to treat, rehabilitate and support while, in the most serious cases, providing protection for the public.
4. Thus, the court is confined to ordering an absolute discharge, a supervision order or, if appropriately certified by medical practitioners, making a hospital order (with or without a restriction order): see s 5(2) of the Act.....
5. The balance which the legislation seeks to strike, therefore, is to protect the rights and interests of those accused of crime to ensure that their liberty is not adversely affected without the appropriate safeguards of a court having established beyond reasonable doubt that the accused did the act or made the omission charged. On the other hand, the public interest is also protected from those who are proved to have committed the most serious acts but who cannot be tried on the grounds that they are unfit to take part in a trial of the allegations made against them.
Why decide against applying the procedure to Lord Janner?
So, the Janner case raised the further issue of why not use this mechanism to have him declared (by the judge)unfit to plead and go down the road of a jury then making a determination under section 4A. The CPS statement comments - 'The CPS has considered with particular care whether it would nevertheless be appropriate to launch a fitness to plead process' and then goes on to state:
'There are .... some cases in which such a process may be appropriate in order for example to protect the public either by a hospital order or by a supervision order. However, in this case, the CPS judges that the outcome of such proceedings would not only be without conviction, but would also result in an absolute discharge. The medical evidence establishes both that there is no current risk of re-offending identified and that there is no likelihood of the defendant recovering from his medical condition (and thus that there is no future risk of reoffending either). Balancing these factors with those in favour of prosecution, the balance is that there is not a public interest in commencing criminal proceedings in this case.'
Each year, the statutory process (section 4A) is followed in a reasonably high number of cases. In the event that the jury finds that the accused did the required act then the court can, at least, impose an absolute discharge. This may offer victims some redress. In the event that the jury finds that the accused did not do the required act then the accused has the benefit of that finding. Thus, the balance in the legislation (referred to by Sir Brian Leveson) is met.
I have therefore wondered whether it was entirely right for the DPP to have used the "public interest test" as a reason to pre-empt the statutory process which could follow a finding of unfitness to plead. It appears that Eleanor Laws QC advised the CPS that a prosecution ought to go ahead - The Needle Blog 18th April. The case of Michael Collingwood (Exeter Crown Court in 2010) is referred to in that blogpost. It was a case where a section 4A hearing was held even though Collingwood had severe dementia. Regrettably, detailed facts of his case are not readily available but would, presumably, have been available to the DPP.
However, overall, I respectfully think the DPP's decision was correct mainly because the process under section 4A is appropriate to those cases where there is (or may be) a need for public protection and such protection would be achieved by, for example, a supervision or hospital order. In Janner's case, there is clearly no such risk. In such circumstances, it would be a bizarre process to put a man in court who is - on the evidence of 4 medical practitioners (two from each side) - unable to participate properly in the process.
The alleged victims:
Justice for the alleged victims in this case may be impossible to achieve. However, some possibilities (and I would not place them higher) are discussed on the Barrister Blog - Lord Janner: Was the DPP right? What can the complainants do next?
In addition to the options discussed by Barrister Blog there is the further likelihood that the case will be considered by the Child Abuse Inquiry under the chairmanship of New Zealand judge, The Honourable Justice Goddard.
Finally, even if belatedly, there is admission in the CPS statement that matters have been badly handled in the past and the statement indicates that:
'In order to maintain public confidence in the administration of justice and to seek to learn appropriate lessons, the CPS has asked retired High Court Judge, Sir Richard Henriques, to conduct a thorough and independent review into the CPS decision making and handling of all past matters relating to this case; and to make whatever recommendations he considers appropriate. He has agreed to undertake this task.'
I hope that the findings and recommendations are made public.
It also appears that civil action against Lord Janner is being considered by some alleged victims - Mirror 18th April
Inevitably, there are those who are unhappy at the DPP's decision - see Mail Online - Lord Janner child abuse scandal: Now Theresa May turns heat on DPP over botched case
Whilst we all know that the general election campaign is underway, it may be noted that Theresa May has something of a track record for publicly criticising the decisions of others including even the Supreme Court of the UK. The DPP is an independent office holder and must act in accordance with the law and proper legal practice. The popularity of a decision must not be a consideration.
In a statement, Leicestershire Police have expressed "disappointment" at the DPP's decision and state that they are considering a judicial review of that decision - read the statement here. The Leicestershire Police have also published a statement by an alleged victim. The publication is at the request of that individual. The statement comments - "This animal is still being protected because [of his status] and isn't able to stand trial ..." The publication by a Police Force of a statement containing such derogatory language about the suspect is a worrying development.
Criminal Law Blog - Fitness to Plead
Law Commission Consultation 197 - Unfitness to plead and their analysis of the responses to the consultation
CPS website - Mentally disordered offenders
Mental Health Law Online - Unfitness and Insanity cases
Mental Health Law Online - The legislation