At the end of next week, a judge will decide whether the ‘trial of the facts’ can proceed now that its subject, Lord Janner, is dead. Janner was accused, on various occasions, of child abuse, though the Crown Prosecution Service, on three occasions, over more than 20 years, decided that there was no case to prosecute. The amazing Simon Danczuk, now himself accused of rape, used parliamentary privilege to accuse Janner of the same crime (plus torture). Last year, Janner was forced to appear in court, though senile. When his senility was upheld, his accusers resorted to a trial of the facts to get their day in court. They were pursuing this aim when Janner died last month. This procedure exists under the Insanity Act. Its use is when criminal proceedings are brought against a person who lacks mental capacity: it is an interim process designed to preserve the safety of the public unless and until the person accused recovers. The trial of the facts can only have one of three possible outcomes — a hospital order, a probation order, or absolute discharge. In other words, it has a purpose only when the accused person is alive. Yet such is the spirit of the times that the terrified CPS has equivocated on the issue. It must give a view, however, to the judge. If Mr Justice Openshaw decides that the trial of the facts can go ahead, we shall have reverted to a benighted situation, not known for a thousand years, in which the criminal law tries the dead. I can see that this will create exciting new work for lawyers — let’s try Jimmy Savile, the Emperor Tiberius, Adolf Hitler for bombing Coventry! — but it would also be mad and bad.
A dead person who has, in effect, been tried — though without any defence being provided — is George Bell, Bishop of Chichester, who died in 1958.
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