In Response to Re: Diminished Capacity and Criminal Law:[QUOTE]
This must make most clinicians (and lawyers) uncomfortable. It presumably comes within the concept of capacity legally. The default position in clinical practice is to assume that capacity exists until it can be shown that it is impaired. The general tests for capacity here would presumably have to to show that the criteria applied specifically to his ablility to instruct counsel and to follow proceedings. Surely, it is for a judge to appoint psychiatric assessors to make these judgements and, as you say, for the process to be transparent. We are not told who made the judgements and it what circumstances.
I can't see how the claim that he is 'no threat to the public' is connected to the judgement about dementia but there may have been some other reason for that. I would regard any future involvement in The Lords or other aspect of law-making as a distinct threat to the public. I couldn't possibly say if some active politicians don't fall into the same category.
Lord Janner has to be considered innocent until proved guilty but dementia of the severity that precludes trial is essentially irreverrsible and if, like Saunders, Lord Janner later makes a miraculous recovery, a charge of perverting the cause of justice might be added.
I had in the back of my mind something about another type of judicical process by which a judge could somehow review the evidence in the absence from court of the defendant. Is that the case or have I also begun to lose it?
Posted by Maxim[/QUOTE]
Many thanks Maxim,
The threat to the public aspect of the DPP decision refers to the matter that if no prosecution goes ahead would the accused be likely to commit further offences of the type alleged? In this case the answer is no, because the dementia is such that he would not be in any position to abuse. On that specific point I am in agreement. Janner must of course be considered innocent unless and until he is found guilty - but it is clear to see that the DPP was satisfied that the evidential burden had been met (when assessed at three different times in the preceding thirty years) but factors such as mismanagement, incompetence or cover up prevented a trial taking place when it should have done. Over the last decade there have been cases where elderly men with Dementia have been prosecuted and imprisoned for the same type of offences - it is not surprising that people think 'the establishment' are covering up in this case.
Newspapers have stated that Janner was signing legal documents regarding his financial affairs and was in correspondence with the House of Lords up until over a matter of weeks before the DPP published her decision - he cannot have Dementia so bad he cannot be tried but perfectly capable of managing his own financial affairs. As you rightly say, if he suddenly makes a remarkable recovery there would certainly be some very serious legal questions asked.
As regards the medical experts, two were appointed by the cPS and two by the defence. I don't doubt that the Doctors formed their opinions in good faith but people are rightly skeptical post Saunders, Pinochet et al.
One possibility that the DPP did not put forward - and I believe she should have - would be a trial of facts. While Janner would not be standing trial and could not be found guilty or not guilty, a Judge could hear in open court the allegations and charges, hear the evidence and make a finding on whether the crimes alleged had taken place. At least that way the alleged victims would have an opportunity to state their case and a historical record would be determined. In my view the DPP should have done this, and could still do this. There is concern that victims will be less willing to come forward when famous or well placed people are accused of sexual abuse - a trial of facts would surely be preferable.
Overall, this case has been managed very badly for thirty years. Police officers say they were told by the powers that be not to pursue an MP (likewise with Cyril Smith), alleged victims not treated with decency, the CPS not vigorously managing their case and finally seeming to give Janner a get out of jail free card. Perhaps the full public inquiry which has been started will get to the truth.