There has been a great deal of publicity recently over Lord Janner and a decision not to charge, and then to charge him with sex offences. The media give the impression that a trial will take place. However, what will take place can best be described as a ‘hearing’ to determine if Lord Janner is fit to plead.
The Criminal Procedure (Insanity) Act 1964 (as amended) determines the procedure to be followed. Firstly the defence, prosecution, or judge, can raise the question of whether Lord Janner is ‘unfit to plead’ – likely to be on the grounds of him suffering from a severe form of dementia.
If the Judge considers this has merit a special jury will be empaneled – medical experts (including one approved by the Home Secretary) will submit reports and the jury will decide the question of him being ‘unfit to plead’.
If, as seems probable, the jury decides that Lord Janner is ‘unfit to plead’, they (or a newly empaneled jury) will go on to decide if the facts indicate that Lord Janner has fulfilled the actus reus (illegal act) for the alleged crimes.
If they decide, from the evidence, Lord Janner could not have committed the alleged crimes – that is the end of the matter. If they decide that Lord Janner did fulfil the actus reus of the alleged crimes then there can be NO finding of guilt. The judge, however, could then give an hospital order, a supervision order, or an absolute discharge. Given the dementia illness of Lord Janner, a supervision order could mean that he returns to his care home.
Lord Jenner is evidently suffering from dementia. It seems to me that the original executive decision of Alison Saunders, Director of Public Prosecutions, not to proceed with a charge against Lord Jenner had some merit. The very idea that an 86 year old highly confused man, suffering from dementia, should face the circus of such a procedure, seems unjust. If I was representing Lord Jenner, I would be seeking a judicial review and an application to the European Court of Human Rights under Article 6 (right to a fair trial). Our legal system should show humanity and respect for confused elderly people.