‘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 investigation.”
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.
Plain that Alison Saunders got it right first time. These proceedings have no public protection purpose. Think of the hundreds of thousands of pounds that are now to be wasted. Even if the acts charged are found to be proved, the outcome will be a non-event: no conviction and no meaningful order. Lord Janner and Jimmy Savile are, in effect, now both beyond the law. Assuming the justification for the Janner proceedings is to give alleged victims their “day in court”, why should Savile’s alleged victims be deprived? And why should Janner’s alleged victims be at risk of being deprived in the event that he fails to survive until they get into the witness box? Clearly the law must be changed to enable dead people to be prosecuted.
ReplyDeleteI do not see a public protection issue in the present Janner proceedings.
DeleteLaw often has to draw lines and they can be difficult since some cases will fall on the worng side of the line. We do not try dead people for criminal offences for the obvious reason that they cannot defend themselves.
Civil actions can survive either for or against the estate of a deceased individual - see Law Reform (Miscellanous Provisions) Act 1934 - though even that can be difficult if assets have been transferred to others.
It may be possible for those claiming to be victims to sue Janner but I am not entering into discussion about that possibility here.