Of course the DPP must not resign over Janner

by Carl Gardner on June 29, 2015

The CPS has announced that Lord Janner is to be prosecuted for child sex offences alleged to have been committed between 1963 and 1988. This follows a review by David Perry QC under the Victims’ Right to Review Scheme, reversing the DPP’s original decision that prosecution would not be in the public interest. The CPS statement says –

In reaching that conclusion, the review agreed that although there is sufficient evidence to prosecute, it is right to assume that Greville Janner will inevitably be found unfit to plead and therefore not fit to instruct his legal team and not fit to challenge or give evidence in a trial. Therefore the most likely outcome of a “trial of the facts” would be an absolute discharge, which is neither punishment nor conviction.

There will be 22 charges, 7 of buggery and 15 of indecent assault. All are under the Sexual Offences Act 1956, which applied on the relevant dates; that Act preceded the Sexual Offences Act 2003, section 9 of which would apply now.

The DPP’s original decision not to prosecute was based on the evidence of four doctors, who found that Lord Janner has rapidly deteriorating dementia requiring continuous care; that he could not have any meaningful engagement with the court process; that there’s no prospect of recovery; and that it’s “out of the question” that he’s “putting it on”.

That led the CPS to think Janner would inevitably be found not fit to plead, and therefore a criminal trial to determine his guilt could not properly take place. The CPS did consider proceedings to “launch a fitness to plead process” (see paras. 20-21 of the DPP’s original statement) but concluded

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.

It’s also important to mention that she said (para. 22 of the original statement), in relation to the complainants’ wish to tell their stories publicly,

I sincerely hope that this can be achieved through the victims giving evidence before the Independent Inquiry into child sexual abuse. I have referred this to the Inquiry team which has confirmed that this case would be covered by the scope of the Inquiry and that those who have made allegations in this case would be able to give evidence to the Inquiry. They have offered to speak to the complainants to explain this.

The review agrees with the original CPS view that no trial is likely, then; and that an absolute discharge is the probable outcome. It seems David Perry QC has taken the view that prosecution is nonetheless in the public interest because the inquiry “cannot substitute for the adjudication of the courts”.

Alison Saunders has taken a lot of stick over her original decision. One of her recent predecessors Lord MacDonald QC suggested it was wrong. It’s fair to mention, though, that Saunders has also been criticised when the CPS has decided to prosecute sex offences, as well as when it’s not. Many attacked the prosecution of Nigel Evans MP, for instance, and in relation to that case Lord Macdonald is reported as having said

What the CPS needs to avoid … is going on a mission and losing perspective. This particularly applies to historical cases which have garnered a lot of publicity. You have to keep a cool head.

Challenges to the DPP on this subject seem routinely to come from both sides. In this Newsnight interview from last year it’s worth noting that Laura Kuennsberg in her questioning both suggested victims can’t have confidence that the DPP will prosecute historic cases, and that she should focus instead on contemporary allegations. Time and again we see (as I said in my Nigel Evans piece)

how easy it is for armchair critics to attack the CPS (like social workers) for acting, or not acting, or once again for acting – according to the transient Zeitgeist.

It should also be remembered that the CPS’s prosecution of journalists in Operation Elveden was not popular among many of their colleagues. Critics of those decisions must criticise them on their merits, though – not try to avenge them under cover of the Janner case.

Nor, I have to say, can I persuade myself that widespread, varied criticism of Alison Saunders is entirely unrelated to her being a career civil servant, the first DPP who’s not a QC, and female (we’ve only had one woman DPP before, and her Telegraph obituary says she held the post “amid growing controversy about her effectiveness and personal style”).

Saunders’s original decision was entirely reasonable. That fact that she brought in David Perry QC to undertake the review is to her credit – and he has simply taken a different view. We’ll see in due course what a court makes of it.

If we’re to have a right of review (and the the Court of Appeal’s judgment in Killick in 2011 says we must) then this sort of thing is bound to happen. Hundreds of decisions not to prosecute have been reversed under the scheme – this is simply the case with the highest media profile. It’s absurd to think someone should resign when this happens (or when the papers take an interest), and raises the equally silly question whether, if a reviewed case is prosecuted but results in acquittal, the reviewer should resign and the original decision-maker be reinstated.

Of course Alison Saunders should not resign over the Janner case. Her critics will agree the DPP must be independent of political and media pressure; but in this exceptional case they’ll no doubt feel entitled as politicians or journalists to pile pressure on her. Her job, though, is not to make popular decisions, and above all not to bring popular prosecutions.

As the Secret Barrister wrote the other day,

All that a resignation from Alison Saunders means is that any future DPP – and any current CPS charging lawyer – will always militate in favour of prosecuting, out of fear for their security of tenure

and as Lord Pannick QC wrote in the Times in April,

Alison Saunders deserves the support of the legal community against the unjustified attacks she has faced, many of them woefully ill-informed and surprisingly eager to sacrifice the basic fairness to the defendant which is a fundamental feature of the rule of law.

The DPP will be seen to be independent if Alison Saunders keeps her job. I hope she continues in it for some time.

{ 4 comments… read them below or add one }

1 Adrian McGrath June 29, 2015 at 15:16

By stepping in and preventing the case going to court Saunders expressed a belief that a high court judge does not have the ability to assess or call for an assessment of an accused.

And that is the kindest interpretation. It is also inconceivable that with such a high profile case with such enormous ramifications that Saunders had not taken advice from above.

2 Anonymous June 30, 2015 at 13:36

Too many bodies are positioned to intervene between acts and their judgment by a court. These removes are in accord with the politicised, progressive thinking that avoids, even denigrates, judgment. The court judges.

‘…inquiry “cannot substitute for the adjudication of the courts”.’

Whatever the decision of the court here it will come in a different arena and under different rules and objectives than any inquiry. Judgments are definitive and not confined just to the outcome; they are (often illuminating) assessments of information before the judge. Inquiries obfuscate: judgments judge and satisfy our expectations of clarity, fairness and legality. as well as immediacy.

3 David Radlett June 30, 2015 at 16:09

This is very depressing. I agree with your analysis and with Lord Pannick’s observations. At least I can disagree with the alleged need to second-guess the DPP’s decisions by way of an ‘independent’ review. Who reviews the reviewer, I wonder?

4 Peter Dombi July 1, 2015 at 21:24

Well I have to say I completely disagree. The position of DPP is not just a legal one, but is also a high profile public position, and as such sustaining the confidence of the general public is paramount. To do that, whoever is in that position has to understand public opinion, and Alison Saunders clearly doesn’t. She may be a good lawyer, but blinded by legal thinking she is incapable of seeing the wood for the trees, and has lost all touch with common sense.

The Janner case is unique in recent abuse cases, in that it is severely tainted with evidence of previous high-level corruption. In no other recent case has there been compelling evidence of police trying to pursue a prosecution and then being leant on from above to drop it. This means that the definition of ‘in the public interest’ changes dramatically, and is not simply about making a decision on whether a prosecution has a reasonable chance of success. It is about showing the General Public that, finally, this case is being taken seriously. The only way to do that is to pursue the prosecution by all means possible, even if that ultimately ends in failure. That Alison Saunders was incapable of seeing that I find, frankly, breathtaking.

Comparisons with Nigel Evans and Operation Elvedon are simply not valid because neither case was already tainted with corruption.

It should have been obvious that any decision which appeared to ‘let off’ Janner was going to be interpreted as further cover-up and corruption, even if that was not actually the case. A decision to prosecute was therefore the only sensible one. That Saunders could not see that shows that, in my view, she is not fit for the job. Those with legal training may disagree but public opinion, and public confidence is, I’m afraid, far more important. Even if the case is subsequently abandoned due to Janner’s medical condition that will not vindicate Saunders, as the crucial point here is that, as far as is practical, justice has to be seen to be done.

Speaking personally, Saunders’ appalling lack of judgment makes her totally unfit for her job, and I for one will have little confidence in any future decisions she might make. If enough of the general public think like me then her position is untenable, regardless of the quality of her work in other areas.

Leave a Comment

{ 1 trackback }

Previous post:

Next post: