Prosecuting The Dead

by Ray_North on December 22, 2015

imagesGreville Janner is dead, but, hey, let’s not let that stand in the way of a good prosecution. Says who? Says the CPS, who, having a few months ago decided (rightly in my opinion) not to bother to prosecute him at all because of his mental health and infirmity, have now gone totally the other way, and are considering prosecuting him even though he is, er, dead.

And, of course many will agree with this. Bring the fucking paedo to justice they will cry. Let the victims have their day in court they will proclaim.

And some will justify this by saying, as the CPS have done, that, as they were going to have a finding of fact hearing in any event, why stop now, just because he’s shuffled off his mortal coil.

Well, I’ll tell you why.

Our Criminal Justice System, like any proper and fair system of law and justice is not solely about investigating an alleged crime, putting the facts before a Court and enjoying the cool breeze of retribution, it is far more subtle and more complex than that – it is first and foremost about fairness to both alleged victim and alleged perpetrator – that means that the complainant and witnesses should have their evidence tested (if it is in issue), and the defendant should have his or her chance to put his case before a fair tribunal; it means that the procedure is strictly adhered to and police are kept honest; it means that there is a fair system of appeal and an objective Judge to ensure that the principles of law are adhered to throughout.

And this whole system is based upon the fundamental notion that everyone is innocent until proven guilty – which means that the Crown (or other prosecuting authority) bring the case, and, as such it is for them to prove it. That is what a trial is all about.

If the defendant is dead, then he can’t defend himself. He can’t tell a lawyer what his instructions are, he can’t give his account, he can’t react to the vagaries (and trust me there are many) of the trial process. And, a lawyer can’t be expected to fill in the gaps. That’s ridiculous. If I was given the job of defending the late Greville Janner, what would I do when faced with a complainant saying that on such and such a date he raped me…. do I make it up on Mr Janner’s behalf – subject the complainant to hours of cross-examination, accusing him of being a liar, a fantasist a gold-digger? Do I ask for disclosure of this complainant’s medical history or criminal history so that I can put it to him that he is in fact deranged or stupid? I would do, if my client had told me to, because that’s my job, but I’m sure as shit not going to do it because I think that’s what my client would have told me to do.

The only reason we have a finding of fact hearing when someone is unfit to plead (that is not mentally capable of giving instructions and understanding the process), is to facilitate the procedure towards disposal. Because, even though a person may not be well enough participate in the judicial process, we still as a society have to deal with these people. That’s why the only possible sentencing disposals available to a judge when dealing with a person who is unfit to plead is either an absolute discharge (which means they get on with whatever life they are capable of leading) or a hospital order under the terms of the Mental Health Act, which invariably means that they spend the rest of their days in a secure unit somewhere. A judge can’t simply do this without a jury saying that they are satisfied that the act alleged was actually done. It is not the same as a finding of guilt, and most lawyers are uneasy about it because the mental element of any criminal act is just as important as the physical act itself (for example, someone may have stolen the goods, and a jury could look at some CCTV and say, yes, the act was done, but, did that person have the mental capacity to understand that they were acting dishonestly – which is a whole different ball game).

I don’t accept that ‘victims’ of crime would be in any way better off if the dead were prosecuted. They won’t have a conviction after a trial, because a trial will not have taken place, it may help them get compensation, but, I doubt if the civil courts would be in any way bound by the decision of a court in which a person couldn’t defend himself.

The only winners would be, well, people like me, criminal barristers, because our desks would be piled high with briefs as the graveyards were trawled for potential defendants. But, as interesting as it might seem to be given a brief to defend some historical figure of some long forgotten misdemeanour, it ultimately has no point, and certainly doesn’t further the pursuit of justice in our society.

In the case of Greville Janner, it appears that there is a certain amount of hysteria knocking about at the moment, and this hysteria is causing sane people to say some daft things – the reality is that we have an ongoing public enquiry that is supposed to be dealing with these matters, my advice would be, keep the dead out of the Courts, and let the enquiry do its job.

{ 1 comment… read it below or add one }

George_East December 22, 2015 at 7:12 pm

Cannot agree more. This is the craziest criminal justice idea yet. Populist nonsense that is the antithesis of justice.

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