In deciding whether or not to prosecute, the Crown Prosecution Service (CPS) applies a two-stage test. The first stage is the evidential stage: is there a realistic prospect of conviction? The second stage is the public interest stage: is it in the public interest to prosecute?
In the well-publicised case of the Labour Peer Lord Greville Janner the CPS has decided, in relation to a number of very serious sexual offences, that the evidential test has been passed. However, four expert clinicians, two instructed by the CPS and two instructed on behalf of Lord Janner, are in unanimous agreement that Lord Janner suffers from a degenerative dementia that is rapidly becoming more severe. He could not engage meaningfully with any trial process. There is no prospect of recovery, and no risk of future offending.
The CPS has decided that a prosecution would not be in the public interest. It has published detailed reasons.
Plainly a regular criminal trial, in which a jury would determine whether Lord Janner was guilty or not, would be impossible. Lord Janner is not fit to plead. That much seems uncontentious, even amongst those who are agitating for some form of prosecution.
What is mooted, though, and addressed specifically in the CPS’s note, is whether a ‘fitness to plead process’ should be launched. The nature of that process is explained by the CPS as follows:
‘There is no determination of the criminal charge, no criminal verdict and no question of conviction or punishment. The powers of the court are “restricted to measures designed to treat, rehabilitate and support while, in the most serious cases, providing protection for the public” (Wells, Masud, Hone and Kail and R  EWCA Crim 2.)’
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.