read the decision dated 7th December 2015. The learned judge took the opportunity to restate the test for fitness to plead or stand trial set out in R v Pritchard (1836) 7 Carrington and Payne 303 where Alderson B said:
‘There are three points to be enquired into:- first,
whether the prisoner is mute of malice or not; secondly, whether he can
plead to the indictment or not; thirdly, whether he is of sufficient
intellect to comprehend the course of the proceedings in the trial so as
to make a proper defence – to know that he might challenge any of you
[the jury] to whom he may object – and to comprehend the details of the
evidence, which in a case of this nature must constitute a minute
Alderson B was stating the law for a jury. In modern law, the decision as to fitness is taken by the trial judge and not a jury.
Openshaw J's modern formulation of the test is:
'Whether the defendant is to plead or to be tried depends on whether he is able to understand the charges; whether he can enter an informed plea to those charges; whether he can instruct those acting for him as to his answer to the charges; whether he can understand such advice as is given to him; whether he can properly exercise his right to challenge jurors for cause; whether he can follow and effectively participate in the proceedings (with assistance if necessary); whether he can give evidence on his own behalf (again with assistance if necessary) and whether he can make an informed choice as to whether he should do so and whether any other evidence should be called on his behalf.'
Openshaw J had the evidence of four medical experts (two for the prosecution and two for the defence) and their evidence all pointed in the same direction that Lord Janner is unfit to plead or to be tried upon this indictment.
For the background, see the posts of 18th April 2015, 25th 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 with the outcome that he was sent for trial - (post of 13th August refers).
It seems that the case now proceeds toward a "section 4A" hearing at which a jury will decide whether the defendant did the acts charged. This procedure is explained in this post of 18th April and it exists primarily for public protection reasons. There cannot be a criminal conviction and, if the jury finds against a defendant, the judge may impose either an absolute discharge, a supervision order or, if appropriately
certified by medical practitioners, making a hospital order.
Openshaw J is a very experienced Justice of the High Court having been appointed in 2005.
See also Fitness to Plead - post of 28th October 2010. See also the Law Commission's consultation on this subject.