And Death Shall Have No Dominion 

Make a note of this date. Go on, write it down now. It is 21.12.15. Or, if you are American, 12.21.15. 

What is so special about this date? Well it might just be the day when the Criminal Justice System finally took leave of its senses. I thought the suggestion of PTPHs being immovable and un-adjournable was going to be the zenith in jurisprudential crazy talk but I could not be more wrong. 

Today we have people talking about trying Lord Janner AFTER HIS DEATH. Yes I have just used bold, caps lock and italics to write that. I have had to deploy every formatting tool available to me to put emphasis on those words because they are right up there with Popes making horses Cardinals as an indicator of people playing with the power at their disposal as a whim. 

My fellow blogger, The Secret Barrister (s/he wears the gown as a cape with underwear over their clothing), has written a blog that deals with the practicalities and the background to this story. I recommend you head on over there to read it. But not before you let me rant for a little while longer. 

It is one thing to have trial in absence. It is one thing to have a trial of the facts when the defendant can play no meaningful part in proceedings. But to try someone AFTER HIS DEATH is a proposition so ridiculous it still requires the full gamut of format options. 

Where will this end? Why don’t we try Fred West? I mean, he voluntarily offed himself so we could probably use the existing trial in absence guidance, with a few tweaks. Or perhaps this ushers in a whole new era for the Criminal Justice System? From now on we can prosecute offences even where the offender has not been identified. It will probably require a change to the verdicts as it is a bit difficult to announce an anonymous, unidentified perpetrator as being Guilty or Not Guilty. Answers on a postcard please…..

This may in fact be an example of joined up thinking in Government policy on Justice. Recently Shailesh Vara told us that access to justice did not necessarily require access to a courtroom. Perhaps we can now add “does not necessarily require a pulse” to such legal brilliance. 

I wager my full AGFS fee for a defence sentence that this will not happen. The real problem is that the CPS have not come out and immediately said so. Their statement is cruel because it leaves open the possibility that this charade may happen. It will raise expectations that will have to be dashed in the name of common sense.

When a criminal justice system is used for the purposes of a show trial we all stand at the gates of hell. The CPS, in my view, made the wrong decision to charge Janner. The DPP’s judgement was right in her first decision. I just hope that they do not allow public interest in their next decision to be mistaken for what is in the public interest. 

Do not try a dead man. 

5 thoughts on “And Death Shall Have No Dominion 

  1. Joe O'Connor

    Fuck sakes Jamie, be quiet. This might be the one possible growth area in legal aid left! Trials of all crimes where the perpetrator is now dead, we can all retire before we even get back as far as Henry VIII.

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  2. Edward

    You’re arguing the wrong point – the point you should be making is that a trial of the facts is unfair because the subject of allegations cannot dispute them (although in fact could have someone present their facts on their behalf) – All you are upset about is that cannot themself testify in their own defence. Given they couldn;t testify even if they were alive means it does not matter whether they are dead or not. Besides, essentially the only damage that can be done is that they are seriously defamed, which they wouldn’t overturn in a trial because the evidence would point to it being fair comment (on the balance of probabilities).

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  3. SM

    I agree with Edward. The lie about a ‘trial of the facts’ is in the name. Without a defence case that is a misleading misnomer. The proper title would be “Hearing of the facts alleged by the prosecution which, despite no one being capable of challenging those facts or offering an alternative version of events, leads to the unusual conclusion that what is alleged actually happened.”

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    1. jaimerhamilton Post author

      The problem is partly a misnomer. The hearing is whether the person did the acts alleged. To that extent it is not about a fact finding exercise nor about whether they are guilty. And the next problem is that the public do not understand that is only a means to an end, the ends being the ability to protect the public from the risk of harm or to get help for the individual being prosecuted. It is far from perfect but there has to be something in place. What it is not is either an inquisitorial exercise or an exercise in closure.

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