Lord Janner: How the Director of Public Prosecutions should have handled the Labour peer

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The appointment of Alison Saunders as the fifteenth Director of Public Prosecutions (DPP) and second woman to ever hold the post was greeted with almost unanimous approval in 2013.

A career prosecutor who had earned the right to lead the Crown Prosecution Service, Saunders was regarded as a safe pair of hands and more than capable of negotiating the legal and political pitfalls of one of the most high-profile roles in the criminal justice system.

Less than two years on, and with a worrying trail of prosecution failures in her wake, not even her once ardent supporters expect her to serve the full five-year term.

Saunders’ calamitous supervision of the non-prosecution of Lord Janner, who for nearly 50 years escaped justice over serious child abuse allegations, has left her looking like a lame-duck chief prosecutor. What most angers her critics is that after taking the trouble to consult widely on the decision, Saunders has chosen to deny Janner’s alleged victims any chance of having their day in court.

Lord Janner’s mental capacity – he is in the advanced stages of Alzheimer’s – is not in question. Four doctors have assessed him to be too ill to instruct lawyers and defend himself in court. But mental incapacity is not a bar to justice. There have been ten cases in the last year alone where defendants with dementia have been put on trial.

Two senior barristers advised Saunders that there was sufficient evidence to support a prosecution against Lord Janner.

In her own statement Saunders concedes there is enough evidence to charge Janner with multiple child abuse offences, including six counts of buggery between 1972 and 1988.

And she seemed to perfectly understand what is at stake by deciding not to prosecute. Saunders explained: “There has been considerable public interest, and media coverage, of the fact of the investigations including identifying Lord Janner as the subject of them. Indeed, concern has been expressed publicly of a cover-up.”

And she went on: “The allegations that have been made against Lord Janner are extremely serious. Those who have made them are, entirely understandably, vociferous in urging the taking of action against Lord Janner.”

But what Saunders woefully failed to address was the possibility of a trial on the facts alone, so that the victims would at least have their allegations tested in a court of law. It would have required Lord Janner to be charged and then for the judge to officially rule that, although he was unfit to plead, a jury could still hear the issues.

This would have been highly unusual, and may have broken new legal ground, but this is a highly unusual case in which the police and CPS have failed three times to do their job.

Saunders’ inability to anticipate the political backlash left her badly exposed.

Sir Clive Loader, Leicestershire Police and Crime Commissioner, described the decision as ‘not just wrong’ but ‘wholly perverse’ and ‘contrary to any notion of natural justice’.

In the following days Sir Clive was joined by politicians and leading public figures who attacked the DPP for not pressing ahead with some kind of court case. Leicestershire police were so angry at the decision that they have threatened a legal challenge.

One politician said the whole thing was a “white-wash” while another described Saunders as “the worst DPP in modern times” and called for her resignation.

This was always going to be a very difficult decision but Saunders has made it worse by handling it very badly. From the start the advice process looks flawed. A rudimentary check on the background of the CPS barrister from whom Saunders sought advice would have rung alarm bells. Instead it was later revealed in the media that Neil Moore QC, her principal legal adviser, had worked at the same chambers as Janner’s son before joining the CPS.

Given the recent conflict issues which have dogged the appointment process of a judge to lead the historic abuse inquiry, surely Saunders realised how wrong these connections look. The law is a very incestuous business, which makes it even more important for Saunders to be sure she has done everything to allay any perception of bias.

It can’t have escaped her attention that to the outside world it simply looks like one lawyer (Saunders and Janner are both barristers) deciding whether to prosecute another.

Her own marriage to a leading criminal barrister, Neil Saunders, should have reinforced this point. Mr Saunders represented Charlie Brooks, husband of Rebekah Brooks, in the phone hacking trial at a time when his wife was leading the Crown Prosecution Service. It means the couple are very used to pursuing their professional lives behind Chinese walls.

Saunders’ lack of political nous means she has done little to cultivate friends in the media or Parliament, while her handling of the fallout of the prosecutions of journalists for payments to officials has antagonised Fleet Street.

Saunders was accused of “persecuting innocent journalists” after the CPS announced this month it was abandoning its cases against nine journalists, including the former News of the World editor Andy Coulson, over paying public officials for leaked information.

The investigation, which began in the wake of the revelations of widespread phone hacking at the News of the World, has resulted in the arrests of 27 journalists, many in dawn raids, followed by long periods on bail. Only two have been convicted and one of them has now been given leave to appeal.

Bob Satchwell, the executive director of the Society of Editors, said the investigation and prosecution had been an “incredible fiasco” which had caused huge reputational damage to the British press and an even greater human cost to the innocent journalists who were prosecuted. The police operations and CPS decisions made it appear that criminal activity was a way of life in British journalism, he said.

In February Saunders had to face the wrath of the medical profession who heavily criticised her decision to bring the first prosecution for FGM against a doctor. It took the jury less than 30 minutes to clear Dr Dhanuson Dharmasena of any wrongdoing.

It is to her credit that the DPP has not shied away from publicly defending her decisions. She acknowledges that they are difficult decisions which will inevitably make her unpopular among certain sections of society. And she stresses the importance of maintaining her independence when making legal judgments. Nevertheless, it is not enough for Britain’s top prosecutor to be a good lawyer. She must also possess sound political judgement, which means understanding the impact of her decisions in wider society. She should not be so independent that she is completely detached from the court of public opinion.