From The Brief (a legal newsletter helpfully extracted here by @BarristerSecret):
Senior prosecutors have invoked new policy in rejecting a request from police that they consider charging a dead suspect with the 40-year-old murder of a teenage girl.
…A senior police source told the BBC: “We would like a clear statement that it [the Crown Prosecution Service] would have charged [Robert] Black with Genette [Tate]‘s murder. It’s the closest we can now get to justice and might offer some comfort to her family and the community”
…However, a spokesman for the CPS told The Brief yesterday that “in accordance with our policy on deceased suspects, we will not be making a charging decision in this case.”
Police were close to charging Black with Tate’s 1978 murder in January of this year, when Black died in prison. He was already serving life sentences for killing other children.
The specific wording of current CPS guidance may indeed be “new”, but it is has always been CPS policy not to charge dead suspects, for the obvious reason that dead people cannot be put on trial. The police may have had good pastoral intentions in asking the CPS to make a hypothetical charging decision, but it was a very bad idea that, if indulged, would have had a tendency to undermine a principle of justice.
In this particular instance, we can probably be reasonably confident that the police had the right man, but if a positive charging decision would have taken us “the closest we can now get to justice”, that implies that positive charging decisions in general tend to demonstrate guilt: in other words, “no smoke without fire”. But the CPS only ever has a partial view of a case, and the evidence or testimony presented before it has not been tested.
It is therefore wrong and prejudicial to regard the CPS as some sort of police peer-reviewer, who independently confirm that the police have got it right. As the CPS guidance itself notes:
In some cases the CPS may make a charging decision, which is communicated to the police, but the suspect subsequently dies before he/she has been charged by the police.
…Any public disclosure of a decision to charge should be accompanied with an explanation of the status of a charging decision, in particular that it does not mean that the deceased suspect was guilty of the alleged offence, as that would be a matter for a jury to decide.
It does not follow that a positive charging decision always means a move closer to justice – indeed, it can mean quite the opposite. (1)
This is second time in recent months that the CPS has been asked to consider a dead suspect. As Dan Hodges noted in December, in relation to Greville Janner:
Yesterday, Lord Macdonald appeared on the Today programme, and was asked what he thought about putting a dead man on trial. The former Director of Public Prosecutions (DPP) thought about it for a second, then gave the following response. “It’s quite finely balanced. It’s a difficult decision again for the DPP, and I don’t envy her.” Finally he concluded that there may be something “unseemly” about the whole thing.
Finely balanced? A difficult decision? We are talking here about the proposition that we should be sending our legal system off in pursuit of the dead.
In the case of Robert Black, the request was rather more modest than a posthumous trial, but it represents different degrees of the same new attitude towards what the legal system is supposed to be for: not just punishing the guilty, but providing “closure” by making authoritative pronouncements about matters of history.
It looks to me that the CPS created a rod for its own back when it u-turned on its decision not to prosecute Janner for child sex offences due to ill-health, and announced there would be a “trial of the facts”. This was the result of public pressure, as well as a statement from an alleged victim conveyed by Leicestershire Police, that described Janner as an “animal” and argued that a trial of the facts would be “in the public interest” because we would then all “know what his victims have gone through at the hands of this man”.
Matthew Scott explained at the time why this wasn’t appropriate:
There are, of course, circumstances in which the justice system has to wrestle with defendants who are too ill to participate in a normal trial, but too dangerous to be ignored. When that is necessary the law has no choice but to adopt an uneasy compromise between the defendant’s rights and the public need for protection.
Janner’s mind had already been destroyed by Alzheimer’s disease when the decision was made to go ahead; he was not dangerous, and, if found guilty, he would have been beyond any earthly punishment. But given the new and unprecedented rationale for the “trial of the facts”, it is difficult to see why it should have made any difference whether or not his body was continuing to draw breath.
Following Janner’s death, the CPS issued a statement:
When a defendant dies during criminal proceedings, it is usual that the case no longer goes ahead following formal confirmation of the defendant’s death at a hearing before the court. However, we are considering the procedural implications of this specific case. As the High Court will close today until January 11 2016, there can be no hearing before that date.
Joshua Rozenburg asked the pertinent questions:
What is the point of perpetuating the misconception in some people’s minds that it might still be possible to continue these proceedings in some arcane way? Why can’t the CPS simply say that the prosecution is over? Who is the director of public prosecutions scared of offending?
In the end, it was left to the judge to formally confirm that the matter had been wrapped up.
Footnote
(1) Of course, in some people’s minds, the simple act of the police passing a file to the CPS is itself evidence of guilt, particularly if the CPS takes some time before coming to a negative decision (I discussed an example of this mentality recently). Indeed, even an arrest can be seen in such a light – just few months ago Sussex Police chose to confirm that posthumous allegations against Bishop George Bell would have resulted in his arrest, were it not for the fact that he had died in 1958, and this was itself cited as evidence of Bell’s probable guilt.
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