Lord Janner's prosecution explained

Published: 7th Dec 2015

Lord Janner, a former politician, has been charged with the non-recent sexual abuse of children despite concerns that he's too ill to stand trial. A judge will hear legal arguments on the case today.

Mr Justice Openshaw has to decide whether or not Lord Janner is 'fit to plead'. If so, a criminal trial would go ahead as normal. If not, there would be a 'trial of issue', or 'trial of the facts'.

The UK Criminal Law Blog, run by criminal barristers, has given us permission to reproduce their explanation of how these procedures work. It follows below.


Question—The role of a jury is to say whether someone is guilty or not, right?

Answer—Generally, but not always…

Why's that?—Because not all trials are about whether a defendant is guilty or not.


Normally, at the first hearing in the Crown Court the defendant will be 'arraigned'—asked to say if he is guilty or not guilty. Sometimes, however, there is an issue as to whether the defendant is 'fit to plead' or not. This will usually be because he is suffering from some sort of mental illness.

The test is whether s/he is suffering from a 'disability'. Lawyers often refer to the 'Pritchard' test (coming from the case of R v Pritchard (1836) 7 C&P 303). It can refer to any disability that would stop the defendant taking an effective part in a trial. For example, someone who doesn't speak English would be 'unfit to plead', but this can be easily cured by providing an interpreter.

The questions to be addressed include:

  • Can the defendant understand the proceedings?
  • Do they have the intellectual capacity to put forward a defence?
  • Can they challenge a juror?
  • Can they understand the evidence?
  • Can they understand what is meant by pleading guilty or not guilty?
  • Can they give instructions to their lawyer (tell them their side of the story and how to conduct the case)?

A Judge cannot now find someone unfit unless they have the evidence of two doctors, at least one of whom is approved under the Mental Health Act.

Who decides whether someone is unfit to plead or not?

It is a Judge who decides this. If the defence 'raise the issue' (i.e., it is the defence lawyers saying that the defendant is unfit) then they have to show (prove) this on the 'balance of probabilities'. In other words, it has to be shown that it is more likely than not that the defendant is unfit to plead.

The Prosecution can also raise the question, and if they do (and this is contested by the defence) then it has to be proved 'beyond a reasonable doubt' (the usual standard for a prosecution).

What happens then?

If the defendant is found fit to plead, then the matter proceeds as normal.

If the defendant is found unfit to plead, then there is a 'trial of issue'. This is to decide if the defendant 'did the act or omission' alleged against him.

The Prosecution call their evidence as normal. Because, inherent in the finding that the defendant is unfit, the defence lawyer will not have been able to get an account from the defendant, there is a limit to what they can do. They should however take an active part in the proceedings to ensure that they are fair.

What happens afterwards?

If the jury find that they are not sure that the defendant did the act, then that is the end of the matter and a 'not guilty' verdict entered.

It is not always clear what the 'act or omission is' and this can give rise to complicated arguments. But, in essence, it is those parts of an offence that don't relate to the mental state of the alleged perpetrator.

For example, if the charge is a stabbing under s18 Offences Against the Person Act (1861), the jury would have to be sure that the defendant was the person who stabbed the victim, and that they were not acting in self-defence, but would not have to consider his intention at the time as that is outside of the scope of the 'act' done.

If the jury are sure that the defendant did the act, then the matter moves to the 'disposal stage'. We've expressed it as that, rather than 'sentence' as it is not a question of attaching moral blame to the person so that they should be punished, rather ensuring that the public, and the defendant, are protected.

The only possible disposals are:

Note that the Supervision Order is different to the Supervision Order that is sometimes imposed under a Community Order.

If someone is found to have committed the act of murder, then the only possible outcome is a Hospital Order with Restrictions.

You can find more detail on these orders here.


The above only applies in the Crown Court. There are different procedures in the Magistrates' Court.

The UK Criminal Law Blog was set up to address inaccurate reports of criminal cases in the press, the lack of public understanding of the criminal justice system and the number of unlawful sentences handed out by the courts. Its explanations of high-profile criminal cases, and other information about the criminal justice system, can be found at ukcriminallawblog.com.


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