Trial of facts but no way he can be punished

THE case against Lord Janner is likely to be tested under a littleknown law which allows for a ‘trial of the facts’ – but there is no prospect of him receiving any punishment.

Under the Criminal Procedure (Insanity) Act 1964 a judge can decide, on medical evidence, that a person is unfit to plead.

In the case of Janner, he has been assessed by four medical experts – two acting for the Crown Prosecution Service and two for the Labour peer’s defence team. All agreed that, owing to degenerative dementia, his evidence could not be relied upon in court and he could not have any meaningful engagement with the court process.

The judge in charge of the case will, at the outset, make a formal declaration in open court that he is unfit for trial. He will then ask a jury to decide – on the basis of evidence given by prosecution lawyers, including statements provided by alleged victims – whether or not Janner did the acts he was accused of.

A defence team will be able to put the case for Janner, though he will not need to be in court.

The law is clear that it is not a formal trial, and should not be described as one, because the defendant cannot put forward a defence himself.

As a result, there is no verdict of guilty and the court cannot pass a criminal sentence. All it can do is to make a hospital order, a supervision order or an order for the defendant’s absolute discharge. Essentially, it is there to protect the public – not deliver a punishment. In Janner’s case, because of his age and ill health, whatever the outcome he is highly unlikely to be considered any threat.

The decision to seek a ‘trial of the facts’ will be seen as a humiliating rebuke for Director of Public Prosecutions Alison Saunders – who considered the idea and dismissed it.

In her statement announcing Janner would face no action, she said there was no public interest in pursuing a course that would inevitably end in an absolute discharge. What she overlooked – at great cost to her own reputation – was the determination of the alleged victims to have their evidence put before a court.

Recent examples of findings of fact hearings include the case of ex-Labour MP Margaret Moran, who falsely claimed £53,000 in expenses.

The jury heard the case in her absence after a judge ruled she was unfit to stand trial for mental health reasons. Moran was placed under a supervision and treatment order.

And John Hammond, an Army veteran with dementia, was given a hospital order after a jury found he murdered his wife of 50 years by stabbing her 16 times in Alsager, Staffordshire.