Yesterday’s U-turn concerning the decision to prosecute Lord Janner for alleged child sex offences has thrown a spotlight onto a procedure in English criminal law called the “trial of the act”. What is this procedure and what purpose does it serve? And why has its application to Lord Janner’s case proved controversial?
A trial of the act is a procedure in two stages. The first stage is that a judge decides, on medical evidence, whether a defendant is unfit to plead. If the judge concludes that the defendant is fit to plead, the prosecution continues in the normal fashion. But if the defendant is found unfit to plead, the judge must proceed to the second stage, which is a modified trial in which the jury is asked to decide whether the defendant did the acts (or made the omissions) he is charged with. There is no consideration of the mental element of the crime.
A trial of the act is not a determination of a criminal charge. There is no conviction or acquittal, and hence no double jeopardy protection. This reflects the fact that the defendant’s participation in a trial of the act is necessarily limited by virtue of his incapacity; his advocates can test the prosecution case but will not generally be asserting a positive defence because they are unlikely to have any instructions from their lay client. A person found to have committed the act cannot receive a sentence of imprisonment or any other form of punishment. Instead the Court can order one of three disposals: a hospital order, a supervision order or an absolute discharge.
In reaching her decision not to charge Lord Janner, the DPP in her public statement in April said that she had considered carefully whether a trial of the act would be appropriate. Her conclusion was as follows:
“There are thus some cases in which such a process may be appropriate in order for example to protect the public either by a hospital order or by a supervision order. However, in this case, the CPS judges that the outcome of such proceedings would not only be without conviction, but would also result in an absolute discharge. The medical evidence establishes both that there is no current risk of re-offending identified and that there is no likelihood of the defendant recovering from his medical condition (and thus that there is no future risk of reoffending either). Balancing these factors with those in favour of prosecution, the balance is that there is not a public interest in commencing criminal proceedings in this case.”
The opinion of David Perry QC, the independent barrister appointed to review the DPP’s decision, has not been published. But based on what has been disclosed of his opinion, it is apparent that he agrees with nearly all of the DPP’s analysis. They agree about the sufficiency of the evidence. They agree about the seriousness and degenerative nature of Lord Janner’s dementia. They share the assumption that he would be found unfit to plead. They share the view that a finding that he did the act would likely result in his absolute discharge. But they disagree about whether it would be in the public interest to charge Lord Janner, in circumstances where a trial of the act leading to an absolute discharge is the only foreseeable outcome.
This disagreement focuses on the purpose served by a trial of the act. The DPP reasoned that, even if Lord Janner was found to have done the act, there was no current or future risk of re-offending, and hence the public interest would not be served by a trial of the act leading to an absolute discharge. Mr Perry QC appears to have reasoned that the trial of the act has an inherent value – and would therefore serve the public interest – notwithstanding that an absolute discharge is the only foreseeable outcome. Thus the DPP’s position was that the outcome does not justify the process, whereas Mr Perry QC’s position appears to be that the process has a value independent of the outcome.
This disagreement was one of the points considered by the Court of Appeal in R v M, K and H  EWCA Crim 2024. In this case the defendants argued, unsuccessfully, that a trial of the act was criminal in nature for the purpose of Article 6 of the European Convention on Human Rights. One of the arguments they advanced in support of this proposition was that the purpose of a trial of the act was the protection of the public by providing for a psychiatric disposal, and should be used only in circumstances in which a defendant presented a risk. The prosecution’s answer – with which the Court of Appeal agreed – was that an absolute discharge was one of the three orders available to the Court. For this reason, the Court of Appeal accepted that Parliament could not have intended that public protection was the sole purpose served by a trial of the act. The Court of Appeal’s analysis of this point appears to be the reasoning underlying Mr Perry QC’s opinion.
In Lord Janner’s case, what is the public interest that might now be served by a trial of the act? These are grave allegations. The alleged victims have said they wish to give evidence in the hope that a public finding is made that Lord Janner did the acts alleged. But these factors alone should not be determinative of the public interest.
The complexity of the public interest analysis can be illustrated by the fact that 18 of the 22 charges against Lord Janner allege buggery or indecent assault with a child under the age of 16. If these offences were prosecuted in an ordinary criminal trial, Lord Janner’s mental state would be irrelevant because the victims were too young to consent. The offences would be proved if the acts comprising the buggery and indecent assault were proved. Thus the jury’s determination of guilt or innocence in a criminal trial would turn on the same issues as the jury’s determination whether the acts were committed in a trial of the act (unlike, say, a trial of the act in a fraud case, in which the jury would not consider the all-important issue of dishonesty). This equivalence between the two processes increases, on one view, the public interest in a trial of the act, in that the jury in a trial of the act would be asked to consider the same issues it would consider in a criminal trial. On another view, however, this equivalence might equally be a valid reason for reaching the opposite conclusion on the public interest, because it illustrates clearly the dangers in initiating a process in which Lord Janner would be unable to challenge the evidence of his alleged victims, in circumstances where the historic nature of the alleged abuse means there is unlikely to be any independent evidence supporting the competing accounts of what happened. Put another way, the very absence of any mental element of these crimes renders it all the more important to have a criminal trial in which the evidence of the alleged victims can be challenged based on the defendant’s instructions.
Yesterday’s U-turn can be explained as a difference of opinion between the DPP and Mr Perry QC about how to weigh up the public interest factors for and against a trial of the act. The fact that their positions are so closely aligned illustrates why calls for the DPP’s resignation are misplaced. The DPP’s critics misunderstand the difficult balance to be achieved in taking prosecutorial decisions in relation to mentally disordered suspects who pose no threat to the public. It is not as simple as saying that the courts should hear the evidence and form their own judgments. Our criminal justice system needs a DPP who is willing to take independent (and sometimes courageous) prosecutorial decisions, and who will not defer to the courts to take the most difficult decisions on her behalf.