The Crown Prosecution Service is still refusing to confirm that criminal proceedings against Lord Janner are at an end, even though he was recently buried. Prosecutors say they don’t want to pre-empt a decision that Mr Justice Openshaw will be asked to make at a hearing planned for the 15 January.
What is the point of perpetuating the misconception in some people’s minds that it might still be possible to continue these proceedings in some arcane way? Why can’t the CPS simply say that the prosecution is over? Who is the director of public prosecutions scared of offending?
On the evening of 19 December, shortly after Janner’s death was announced, somebody asked me on Twitter whether the expected “trial of the facts” would now no longer go ahead. I replied that it would not. A little later that evening, a BBC correspondent tweeted to the effect that this had now been confirmed by the CPS. I responded sarcastically, wondering what had taken the CPS so long. It is axiomatic that criminal proceedings are brought to an end by the death of the defendant. The BBC duly reported that the trial of the facts would no longer take place.
Then something strange happened. Ken Macdonald QC, a former head of the CPS, gave an interview to BBC Radio 4’s Today programme in which he seemed to suggest that Alison Saunders, his successor as DPP, might somehow continue the criminal proceedings against Janner after all.
It is fair to say that Lord Macdonald made a discreet tactical withdrawal shortly afterwards, conceding that a trial of the facts “needs a living defendant”. But by then the CPS had issued a statement of breathtaking absurdity. It was “usual” that a case no longer goes ahead following confirmation of a defendant’s death, the CPS said, “however we are considering the procedural implications of this specific case. As the high court will close today until 11 January 2016, there can be no hearing before that date. It is right that this matter is considered properly in open court, and we will therefore not be commenting further ahead of a court hearing.”
This statement suggested that nobody at the CPS had a clue about how the criminal justice system worked. First, it is not merely “usual” that a case against a sole defendant ends when the defendant’s death is confirmed. It is inevitable.
Second, the high court did not “close” on 21 December. That date was merely the end of the law term. There are sittings during legal vacations and there are always judges on duty to hear urgent cases.
Third, the Janner case wasn’t even being heard in the high court. The most recent hearing, on 7 December, was at the Old Bailey, which is part of the crown court. The crown court is closed only on public holidays, and there were hearings at the Old Bailey between Christmas and new year.
Fourth, there is no need for a hearing in open court. According to Blackstone’s Criminal Practice, a leading practitioner’s textbook, evidence of a defendant’s death – such as a copy of the death certificate – should be given to the court and endorsed on the indictment, the formal statement of charges. That renders the indictment of no legal effect. Even if it were necessary to wait four weeks for a formal hearing, the CPS could have said all this before Christmas.
It’s possible the CPS announcement was based on its misunderstanding of the procedure that Janner was facing before his death, popularly, if confusingly, called a trial of the facts or trial of the issues. This isn’t the trial of an absent defendant. As I tried to explain last April, its purpose is to ensure that a defendant’s liberty is not restricted if no crime was ever carried out. That was confirmed by the recent judgment I cited last year.
What could not be safely reported before Janner’s death was that lawyers appointed by the court to represent his interests were considering whether to argue that this procedure would have been an abuse of the court’s process, given that the inevitable outcome was an absolute discharge. The counter-argument was that it would have been in Janner’s interests for those who had made allegations against him to have been put to proof – even though it would not have been possible for any defences to have been put on Janner’s behalf.
We shall never know what would have happened. For now, though, the CPS needs to get a number of things clear in its collective mind. A trial of the facts is part of the criminal proceedings that prosecutors bring against defendants, not an alternative to them. The purpose of a criminal trial is to decide whether charges against a defendant can be proved beyond reasonable doubt, given all the safeguards on which our system rightly depends. It is not to find out what happened, still less to bring comfort to alleged victims, and least of all to test the evidence on which those alleged victims may seek to rely in subsequent civil proceedings. If that’s not clear to prosecutors, little wonder the CPS still thinks that prosecuting a dead man is merely a little unusual.