Thursday, 13 August 2015

Lord Greville Janner ~ Procedure in criminal cases

Updated 18thSeptember - The Telegraph reported on the first hearing in the Crown Court at which Mr Justice Sweeney excused Janner's attendance. A fitness to plead hearing will take place on December 7 this year, and a provisional trial date has been set for February 22 2016, at a venue to be confirmed.

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Criminal procedure is a complicated subject !  It may well prove to be daunting for most of the increasing number of individuals who, with restricted availability of legal aid, sometimes find themselves before the courts unrepresented by a lawyer.

No such consideration arises in the case of Lord Greville Janner.  He has first class legal representation and his case continues to raise interesting points.  For the background, see the posts of 18th April 201525th April 2015 and 29th June 2015.  In those earlier posts it is explained why a decision of the Director of Public Prosecutions (DPP) NOT to prosecute Janner was reversed.   Reversal of the decision meant that, given the serious nature of the charges, Janner had somehow to be brought to the Crown Court.



One way of getting the case to the Crown Court would have been for the Crown Prosecution Service (CPS) to apply to a High Court Judge for a "Voluntary Bill of Indictment."  This process is rarely used and is explained in this earlier post of 22nd June 2010.  The procedure is governed by strict rules and there is no hearing in the Magistrates' Court.  The usual occasions for using a voluntary bill are set out at CPS Legal Guidance.

Historically, the more usual method of getting a serious criminal case to the Crown Court was by way of "committal proceedings" in the Magistrates' Courts.  For offences triable ONLY by the Crown Court, committal proceedings have been replaced by a "sending procedure" set out in the Crime and Disorder Act 1998 s.51 (and Schedule 3).   Section 51 may only be used where an "adult appears or is brought before a magistrates’ court".    Either-way offences (that is, offences triable either by the Crown Court or Magistrates Court) do not, since May 2013, require committal proceedings - (Ministry of Justice announcement 28th May 2013).

So that Janner's case could be sent to the Crown Court, a hearing was arranged on 7th August at Westminster Magistrates' Court before the Chief Magistrate (Judge Riddle) but Janner did not attend.  The Judge exercised his power to adjourn the case (see CDA s.52), ordered attendance at the adjourned hearing and warned that a warrant for arrest could be issued.  A challenge to this decision was heard in the High Court on 13th August - see the reasons for the decision of the High Court (Rafferty LJ and Irwin J) at R (Lord Janner) v Westminster Magistrates Court and CPS.

The challenge was based on three limbs: [1] on the evidence available to the judge, it was not open to him to decide that Janner was unfit to attend; [2] the judge had failed to give proper consideration to the Voluntary Bill of Indictment method of getting the case to the Crown Court and [3] Human Rights - Article 3 (Prohibition on Torture or Inhuman or Degrading Treatment) and Article 8 (Right to respect for family life).  The court had no difficulty dismissing these arguments.  The possibility of an appeal against this decision will have been considered by the defence.

Assuming that either (a) there is no appeal or (b) that an appeal fails, Janner must attend the Magistrates' Court for the case to be sent forthwith to the Crown Court and failure to do so would leave it open to the prosecution to apply for a warrant of arrest.  Such an application would have to be considered judicially by the court and, of course, there may be further argument against it.

This is proving to be a most interesting and rather complex business.  There may yet be further twists and turns to this case.

The Telegraph 13th August 2015

Update 14th August:

This afternoon, Lord Janner appeared at Westminster Magistrates' Court and his case was "sent" to the Crown Court where the first hearing will be on 1st September - The Guardian 14th August.

Andrew Keogh 13th August - Lord Janner's court appearance - what's all the fuss about?

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