The CPS, The Police, and the Dead

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.


(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.

5 Responses

  1. The standard of evidence the CPS would have had to consider may explain why the police dragged their heels in submitting it to them:

    “Detectives found two new witnesses following a re-investigation of the case, including an examination of the thousands of files from the original investigation.

    They have been re-interviewed at length, senior police sources said, and have ‘strengthened the circumstantial case against Black’.

    The witnesses’ evidence ‘concerns Black’s behaviour’ at the time she disappeared, the sources added.”

    One can understand the police’s & family’s desire to achieve “closure” but there is a real danger in lowering the evidential threshold to do so. While Black was undoubtedly guilty of horrific crimes (and so would not have suffered to the same extent as an innocent man, had he been wrongly convicted of others for which he was NOT guilty) no justice would be served in so doing.

    The father’s reported words make a depressingly familiar read:

    “But John Tate, Genette’s father, was upset that Black’s death meant he did not face justice. Mr Tate said:

    ‘It’s a shame this file was not submitted earlier to the CPS. There was some talk of it being submitted last autumn, then the CPS would have had several months to decide whether to prosecute Black.
    That would have meant that Black would have died in January knowing that he was going to put on trial for Genette’s murder.'”

    Indeed, but it’s too late now… Perhaps the police should be answering as to why they never got around to sending that file, rather than trying to chalk-up a posthumous ‘victory’. Given the above the suspicion is that the evidence simply wasn’t up to standard.

    However, even if they HAD done so the CPS would no doubt have sat on the file for an inexcusable amount of time, as now seems to be the norm.
    I honestly wonder what the process there is… some sort of hothouse wherein feeble cases are watered & nurtured in the hope that over a period of a year or so they’ll grow into stout & sturdy prosecutable ones.

    “Justice must be swift…”?

  2. There is also the notion that is always pushed that somehow victims can obtain this illusive thing called “closure”.

    I know only one family in which a daughter was brutally murdered by a stranger over 30 years ago. The killer was caught and they attended the trial every day upon advice from the police but it really just heightened the horror they were suffering from as they sat through all the terrible details. Their feelings of impotence were shocking.

    Of course there was some satisfaction in seeing the killer jailed for a long time but that soon wore off. Most of the family were left with a gaping hole that nothing could fill- the effects of a trial and conviction wore off after time.
    One family member described sitting through the trial as the most hateful thing they had ever done as it emphasized the terrible opportunism & waste of life.

    Of course all those who are touched by the murder of a family member or friend will have differing feelings but the media has now pushed so many fixed mantras about such things that the police seem only too quick to assume they are correct. In the end it is why we can only have a dispassionate system of law that views every case in similar fashion and puts aside the passing emotions of the public.

  3. See the Scottish case of Alexander Gartshore in 2014, which would be a worrying precedent to adopt.

  4. What about Cyril Smith? Posthumously, Greater Manchester Police issued these statements (2013):
    “Having now reviewed those decisions, we believe that if the same evidence was presented to the CPS today there would have been a very realistic prospect that Smith would have been charged with a number of indecent assaults, and that the case would have been brought to trial”, and “The Force is now publicly acknowledging that young boys were victims of physical and sexual abuse committed by Smith”.

    An unequivical declaration of guilt.
    It seems to me that these posthumous charging decisions ARE intended to be declarations of guilt, even if they don’t go as far a Greater Manchester’s Cyril Smith statements, and are interpreted that way be most media coverage and no doubt most of “the public”.
    It is good that you’ve pointed out, here, that such interpretations may be in error.

    In America, unequivical posthumous declarations of a dead suspect’s guilt are not uncommon. Sometimes there is new forensic evidence, such as a DNA match, which is so damning that “he/she did it!” doesn’t seem unreasonable. In other cases, such as the 2008 declaration that Otis Toole was guilty of kidnapping & murdering Adam Walsh, there isn’t any new evidence driving such declarations.

  5. An interesting piece in the Guardian:

    ““Since deceased persons cannot be prosecuted, the Crown Prosecution Service will not make a charging decision in respect of a suspect who is deceased,” the guidance states.
    “This applies in all cases where the suspect is deceased, including cases in which the police made a referral to the CPS for a charging decision prior to the suspect’s death. The CPS will also not make hypothetical charging decisions.””

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