In Court yesterday, Lord Janner’s barrister, Paul Ozin, argued that the decision by Howard Riddle, Chief Magistrate last Friday to order Lord Janner (“LJ”) to attend court this Friday 14th August was wrong. Not surprisingly, he reacted by suggesting that he had ordered the Defendants attendance, and that the consequence of non-attendance was a warrant for arrest. He would invite the CPS to suggest how that process could be handled –
“And if that is by way of an application for warrant, then the judge sitting on that occasion will want to know what special arrangements have been made by the Crown to enforce that. Everybody has had significant time to prepare for these proceedings, and I expect the parties to be able to deal with any expected developments and not to seek any further adjournment.”
Having attended Court last Friday, I can see that this Judge wants justice to be done as swiftly, and fairly as possible. One gets the impression that he regards the Defence challenges as an impediment to swift and efficient procedure. His decision, indeed, is being challenged in the High Court.
One can look at this cynically. LJ has dementia, and his condition is getting worse. Thus the longer the proceedings take, the less likelihood there is of the Court regarding him as having capacity. Both psychiatrists in Court were of the opinion that his dementia was severe, and was worsening to the extent that whereas at one time not too long ago, he liked going out into the garden, now he refuses to do so. A condition of confusion, inability to communicate, and irritability was described quite graphically.
From a less cynical point of view, however, are issues of Human Rights, and the right to challenge the decision of one Court in another Court, if there are grounds to appeal.
The Human Rights argument was made on the basis of Article 8 Human Rights Act 1998, and was put by his barrister in Court as “Given his family will have to take steps which would cause Lord Janner considerable stress and harm, we would say that there is a violation of his Article 8 rights because his own family [face] the onerous task of inflicting what they regard as … unnecessary harm to Lord Janner. Our position is that the decision is itself unlawful”
So what are the logical alternative:-
- The Magistrates Court has ordered LJ’s attendance at Court on Friday. If he does not attend he is liable to be arrested for non-attendance at Court whilst on bail. The CPS, however, would need to apply for a Warrant, which would be the normal course of events.
- Can the High Court order the Magistrate’s Court hearing to be vacated – I am not sure it can. Faced with an order that the decision to order LJ to attend is unlawful, if indeed that is the decision of the High Court, then the Magistrate’s Court is likely to agree. In any event, if the decision to order attendance is deemed unlawful, the consequence is that the proceedings could not proceed further – no doubt the tactical plan of the Defence.
- If the decision to order the attendance of LJ was deemed unlawful then the CPS would have to go via another route to the High Court to ask for permission to lay a “Voluntary Bill of Indictment” before the Crown Court, so as to bypass the Magistrates Court altogether, and place the case directly into the hands of the Crown Court. Under current law, all cases have to pass through the Magistrate’s Court first, even for a brief hearing. The law also requires all Defendants to attend.
- On Thursday, in the High Court, the Defence application to Judicially Review the decision of Howard Riddle that LJ attend Court, may fail. The High Court may say that the decision was proper and correct in that he only has to attend for a minute, can be removed if he becomes distressed, does not have to take any part, and can be identified by someone in Court, and any distress experienced is unlikely to have any long lasting effect.If such is the decision of the Court, the Defence say they will appeal, and that the hearing in the Magistrates Court on Friday should not take place pending the Appeal.
- So all the proceedings may be stayed whilst the High Court hear the application for Judicial Review. Alternatively, even though the Defence say they will appeal to the Court of Appeal if they lose, will it mean that the hearing on Friday doesn’t go ahead? One could have a situation where the Defence lose, they apply for leave to Appeal, are refused, apply to have the hearing vacated, are refused, and next morning in the Magistrates Court are faced with an application for a Warrant for Arrest of LJ. The view of the Chief Magistrate is clearly that the case should proceed, and that attempts to hijack his case in different courts should be rebuffed, if at all possible.
- If a warrant for arrest is issued, what special measures could be used in this special type of case where the Defendant is clearly ill, arguably lacks capacity, and may suffer distress if he appears before a Court? Will the police simply turn up at his residence, handcuff him, put him in a cell overnight, and produce him in Court the following morning? I think not. It is likely that if this happens, the Defence would agree to produce him at an agreed time and date at Court, where he would be ushered through a back entrance to avoid the glare of the media.
What would I put my money on as an outcome – difficult one to call, but I anticipate that the High Court will allow the application for Judicial Review but grant an application for Voluntary Bill of Indictment to get the case in the Crown Court as soon as possible. No doubt I will be proved wrong. We will see….
