The alleged victims of Lord Janner have succeeded in their bid for his prosecution. The head of the Crown Prosecution Service, Director for Public Prosecutions Alison Saunders, had initially ruled that it would not be in the public interest to prosecute Lord Janner as his dementia would prevent him from being fit to stand trial. So, what now?

Where a defendant may lack the capacity to comprehend the issues in the criminal proceedings taken against him/her, the Court will hear expert evidence in order to make a decision about whether the defendant does or does not have such capacity, known as having or lacking fitness to plead.

If the Court decides that a defendant is fit to plead, the case will continue as it would for any other defendant. The defendant in question would be expected to enter a plea of guilty or not guilty and to stand trial.

If a defendant is not fit to plead, (s)he will be unable to comprehend the evidence and proceedings of the trial in order to defend him or herself, challenge any jurors and/or give proper instructions to his legal representatives.

The consequence of a finding that the defendant is not fit to plead is that they cannot be expected to enter a plea of guilty or not guilty to the Court or to stand trial. In these situations, the Court will hold a “trial of facts”, which is a fact-finding hearing in order to make a ruling on whether the defendant did the acts (s)he is accused of.

In this hearing, the defendant will not give evidence. The jury deciding the matter will not be asked to consider whether the defendant had the requisite “mens rea” or intention to commit the acts he is accused of. Because almost all criminal offences require a certain intention to be present to render an act criminal, any findings made without regard to the defendant’s intention cannot amount to a conviction for a criminal offence. Any findings arising from this hearing will be just that, findings.

This raises the question: if someone is not fit to plead and therefore cannot be convicted formally of an offence, where lies the point in prosecuting them? The answer can be found in the powers of the Court if it is found that the defendant committed the act. The Court can, and does, order comprehensive expert opinion on the prospects of reducing the risk the defendant poses to the public and can make binding and indefinite Orders for the defendant’s detention in a mental health facility, in some cases with no leave, until his or her risk reduces to an acceptable level. These powers allow mentally unwell offenders rehabilitation while protecting the public. Such orders are called Hospital Orders, and provide the court with a valuable way of detaining and treating those who commit criminal offences yet are not fit to stand trial, thereby protecting the public in the process. For adults, the powers of the court when dealing with an individual found unfit to stand trial, but found to have committed the criminal act, are limited to an Absolute Discharge or a Hospital Order.

In the case of Lord Janner, it is said that he no longer poses any risk to the public. It has been argued that if he is not fit to plead and therefore cannot be found guilty of an offence and he does not pose such a risk as to warrant detention for his treatment and the protection of the public, the justification for the expense of his prosecution does not exist. Even if Janner is said to have committed these serious sexual offences, the overwhelming likelihood is that he will receive an Absolute Discharge, so there would be no conviction and no punishment. In the past, as indeed was originally decided in this case, it would have been felt that there was no public interest in bringing the case.

However, the inferences that can be drawn from the decision to prosecute in this case are interesting. It would seem that the right of the victim to hold a defendant to account in a public forum is ever more important to concept of the public interest. Of late it has been suggested by the Government that they wanted the views of victims to be given more weight than was previously the case. This case perhaps marks the point when this started to happen.

The Legal 500 top ranked criminal law team at David Gray Solicitors LLP has seven members of the Criminal Litigation Accreditation Scheme. Brian Hegarty and Jonathan Cousins are Higher Rights Advocates and can represent clients in all levels of Court up to and including the Court of Appeal. For more information contact the team by email to Jayne.standen@davidgray.co.uk, phone  on 0191 232 9547 or chat live at www.davidgray.co.uk.