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Top lawyers’ horror at prospect of putting a dead man on trial

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Lord Janner “trial of facts” would be a modern legal first

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The Crown Prosecution Service (CPS) is considering pressing on with the sex offence charges brought against the late Labour peer Lord Janner, in a move described as “unprecedented” by top legal commentators.

Real name Greville Janner, the former QC and MP has had a bumpy road through the criminal justice system. The 87-year-old — who was suffering from advanced dementia at the time of his death — was deemed unfit to stand trial by a High Court judge earlier in December. Had the judge decided otherwise, Janner would have faced 22 sexual offence charges against nine male victims, dating back to the 1960s.

Because of this finding, Janner’s guilt was not up for debate. Instead, a “trial of facts” was scheduled for April next year, similar to a fact-finding hearing in family law proceedings. These types of hearings are reserved for suspects that are unfit to defend themselves, and are focused on findings of fact instead of determining guilt.

Owing to Janner’s death on Saturday, the normal course of action would be to drop the case.

But the CPS has sent shockwaves through the legal sphere by suggesting that — owing in part to the high level of publicity surrounding the case — it may persevere with a trial of facts. It is currently considering “the procedural implications” of this decision.

Though instinctively bizarre, this is theoretically possible. Speaking on BBC Radio 4’s Today programme, Lord Macdonald explained:

The whole point of a trial of the facts is that it does not exist to determine the guilt or innocence of anyone… So it doesn’t, I suppose, require the presence of the defendant… The argument for continuing is that [Janner] was not going to play any part in these proceedings in any event even if he had not unfortunately died.

But that doesn’t mean it’s a good idea. Macdonald himself certainly was not keen:

In the end I think there’s something unseemly about a criminal process to determine the acts of a person who has already died,” he said. “That would be a groundbreaking proceeding, and probably groundbreaking in an unfortunate way.

Echoing Macdonald’s distaste, barrister Andrew Keogh took to Twitter to express his disappointment in the CPS’s announcement:

Journalist and legal expert David Banks was equally sceptical:

Other members of the Twitterati sat firmly on the fence, expressing shock as opposed to outrage. The BBC’s Danny Shaw described the prospect of trial as “unprecedented”, while barrister Matthew Scott went for “extraordinary”:

But it’s certainly not all doom and gloom. Other keen commenters seemed to swing the other way, asking why the CPS hasn’t adopted this technique before:

Let’s not forget the victims in this — pushing ahead with the charges may well give them the chance to speak out. Speaking of Janner’s death, Liz Dux, a solicitor at Slater and Gordon representing six of the nine victims, described the news as “devastating” for her clients. She continued:

All they have ever wanted is to give their evidence in court and have these very serious allegations tested and to be believed.

This may well be their chance.