The reversal by Alison Saunders, the director of public prosecutions, of her decision not to prosecute the peer Greville Janner over alleged child sex abuse is not as unpredecented or embarrassing at it may first seem.
The victims’ right to review, introduced by the Crown Prosecution Service in 2013, specificially envisages such abrupt changes in public decision-making.
As her predecessor, Sir Keir Starmer QC, explained when introducing the scheme: “Refusing to admit mistakes can seriously undermine public trust in the criminal justice system.”
Starmer himself, when DPP, at one stage decided not to prosecute a police officer for the manslaughter of the newspaper seller Ian Tomlinson, only to change his mind within a month, explaining that more evidence had emerged. The officer was eventually acquitted of the charge.
Law is not always an exact science, as Lord Macdonald, a previous DPP, said on BBC Radio 4’s Today programme: “These positions are not always binary, and highly respected lawyers have come to opposing conclusions on this.
“I do think that Alison Saunders’s position was a perfectly respectable, perfectly defensible position. I think it is a very good thing that decisions can be open to review in this way.
“It was courageous of the DPP to have this case put through that system and I think the system has proved that in this case it worked well … she is a woman of complete integrity, and I don’t think she should resign.”
The law may present itself as an unwavering judicial edifice to the public but there are occasions when judgments appear to sway when blasted by public and political disapproval.
Many legal commentators would argue that the European court of human rights has significantly moderated its approach when reaching decisions on UK cases in the face of the row at Westminster over prisoners’ right to vote.
In a similar sign of judicial responsiveness to public and media alarm, senior judges announced in 2011 that “superinjunctions” – bans on reporting – were being granted far too readily and they should henceforth only be used sparingly.
Judges’ sentences in criminal cases are overturned almost every week through the existence of the unduly lenient sentence scheme, overseen by the attorney general. The scheme allows anyone to challenge sentences they believe to be unreasonable and insufficient.
Saunders is a highly experienced prosecutor and has not shied away from public appearances to explain and defend her decisions. She came under attack earlier this year for pushing ahead with the prosecution of a doctor for alleged female genital mutilation. He was cleared; and in that case she was criticised for being too responsive to public demands for legal action over FGM.
The existence of the victims’ right to review, however, may prompt a rethink about how much detail can be provided in explaining decisions not to prosecute in future. Knowing that such conclusions can be reversed means that information released could potentially prejudice a later trial that might – against expectation – eventually go ahead.
Having a “trial of the facts”, because the defendant is unfit to plead, is not so rare. The procedure was used in 2011, for example, against the former Labour MP Margaret Moran over charges of falsely claiming parliamentary expenses. She was eventually given a two-year supervision and treatment order.
The Law Commission is currently consulting on whether the law governing fitness to plead needs to be updated. One aspect of the inquiry is whether a trial of facts should be heard by a judge alone rather than a jury.
The attorney general, Jeremy Wright QC, also gave Saunders his backing.“I believe strongly in a system where decisions to prosecute are taken by independent prosecutors and not by politicians,” he said.
“I am confident of the independence and the integrity of … Saunders in making the difficult judgments the job of a prosecutor involves.
“It is right that we now have a victim’s right to review those judgments, which Alison helped to bring in, and which has operated as it was designed to in this case. Since Alison Saunders has been DPP, the CPS has prosecuted and convicted more child sex offenders than ever before.”
