Lord Janner’s reputation may be sullied by lack of due process

The decision, finally, by the children of the late Lord Janner to take legal action to stop the Independent Inquiry into Child Sexual Abuse from probing the diverse allegations against him is eminently proper and makes perfect sense. But last week’s sudden resignation of inquiry chair Dame Lowell Goddard would anyway have given the IICSA an opportunity to relent.

Opinion is deeply divided over the Janner case. Many people are understandably troubled by the number of complainants, although that of itself hardly betokens their cumulative reliability. Indeed a whiff of jumping on the bandwagon (with the lure of milking the peer’s estate) suggests other motives may be collectively afoot than an urge to impart the truth. Moreover, there are grave doubts about the veracity of at least some of the alleged victims and it is certainly curious that not one of the 400 witnesses the police interviewed in connection with the case against the care home manager Frank Beck ever mentioned Lord Janner before Beck was put on trial in 1991 and denounced him out of the blue.

By the time it was decided to prosecute Janner last year, four distinguished experts had diagnosed him with rapidly advancing Alzheimer’s. Yet as I have previously pointed out in this newspaper and elsewhere, the QC who recommended prosecution entirely misconceived the rationale of the “trial of the issue” procedure and wrongly assumed it was lawfully available in the particular circumstances of the case. Subsequently, a forlorn attempt was made to justify the prosecution with the dark hint that Janner, by now very severely afflicted, continued nonetheless to pose a risk to strangers because he had supposedly once tried to evade his carer.

With his passing formal criminal proceedings necessarily ended. But, using sleight of hand, the IICSA resolved to put a dead man on trial.

The IICSA’s central remit is the scrutiny of institutional failures both to protect children from sexual crime and to investigate and prosecute predators, the two decades delay in prosecuting Janner being a prime example of what needs to be scrutinised. But a duty to act on a complaint is hardly contingent upon its truth, which therefore bears no relevance to the issue of official neglect. That disconnect was explicitly conceded by Ben Emmerson QC, counsel to the IICSA at the inquiry’s first public hearing. Yet with Dame Lowell’s tacit approval he contrived a spurious pretext for determining the truth of allegations. The inquiry panel’s task, he implied, includes assessing the traumatic impact on genuine victims caused by the perfunctory dismissal of their complaints and of necessity this will involve deciding if a complaint is genuine.

The argument is palpably false. Quite simply, the IICSA is not a court of law awarding damages for tortuous breach of the duty of care. It has no business using “pain and suffering” as a warrant for assessing the truth of allegations. In any event, a genuine complainant who has been let down by the authorities can be assumed to be profoundly aggrieved. You do not need a protracted and vastly expensive foray into a totally irrelevant issue to state the blindingly obvious.

Lord Greville Janner
Lord Greville Janner

As if the fundamental illegitimacy of adjudicating on the truth of the Janner allegations were not bad enough, the impending hearings are saddled with procedural deficiencies. Had the Janner family decided to participate they would have enjoyed no opportunity to cross-examine complainants as of right but only in the discretion of the chair. Given the IICSA’s avowed protective ethos neither counsel to the Inquiry nor counsel for any participating agency may be expected to question complainants with more than minimal tenacity.

That drawback might have been mitigated to some extent by the adoption of a regime corresponding to that statutorily provided in criminal trials for the routine disclosure to the accused of a range of background information of the sort which might cast doubt on a complainant’s reliability. This includes material available through social services, healthcare agencies, schools, employers, police and the like. Statutory provisions governing public inquiries do require relevant evidence to be handed to participants. Yet without the Janner family’s involvement no one else is going to demand disclosure and from the IICSA’s studied silence on the issue it seems most unlikely that they will be initiating any systematic research into the existence of such background material to equip the panel with the objective means of assessing complainant credibility.

Shorn of these essential tools of scrutiny, the panel will be forced to rely on the superficial plausibility of the complainants. But whereas the supposed infallibility of witness demeanour as a guide to credibility was formerly a mantra of the common law, it has been challenged in recent years on the highest judicial authority.

If the IICSA is permitted to go ahead it will proclaim its findings publicly and Lord Janner’s reputation may well be sullied on the back of a substantial deficit of principle and due process. Dame Lowell’s successor needs to reflect very carefully on whether to endorse Ben Emmerson’s faux reasoning or pull the inquiry back within its proper boundaries.

About the Author
David Wolchover is a Barrister and author of Culprits of Lockerbie
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