Lord Greville Janner has been suspended from the Labour Party.

Lord Greville Janner has been suspended from the Labour Party.

Prosecutors say they had reason to charge Lord (Greville) Janner with 22 counts of child sex abuse – including the buggery of young boys – based on nine peoples’ testimony, but chose not to because he was unfit to stand trial.

This is hardly in doubt. Janner has a rapidly deteriorating form of Alzheimer’s and needs round-the-clock care. He could not instruct a solicitor, nor could he play any part in a court process. According to Alison Saunders, the director of public prosecutions, he was not even fit to be interviewed.

Be that as it may, questions are now being asked as to whether the CPS should have determined that he is unfit to stand trial, and even if he is, whether the case should be heard anyway.

On the first question, the Crown Prosecution Service could have put Janner before a hearing to determine his capacity to stand trial, says Peter Garsden, president of the Association of Child Abuse Lawyers. A judge, not the CPS, would then have made the decision, as is common practice, but in this case, the CPS chose not to do so. “For victims it’s very misguided and for the police it’s very frustrating, after two years’ investigations, to hear that he’s not even going to be charged,” Garsden said.

Many this week agreed, but were reticent to say so in public. “He should be present for his trial even if suffering from dementia,” said a top (Jewish) criminal law barrister who asked to remain anonymous.

The risk that justice is not done and not seen to be done, as a group of cross-party politicians pointed out in an open letter on Wednesday, is that “the public will see attempts to investigate establishment figures involved in historic child abuse as a whitewash”. Garsden agreed, saying there had been “four separate opportunities to charge Janner, all of them missed… For victims, this is yet another example of a cover-up”.

But spare a thought for the CPS, whose prosecutors were in a “lose-lose situation,” and would no doubt have been criticised for bringing a defendant to court if that defendant was clearly unfit to stand trial.

Others say that, had they done so, the most Janner would have received was an absolute discharge, a hospital order or a supervision order – unless he was deemed a danger to the public (highly unlikely for a severely demented octogenarian). In other words, the whole process would have taken up time and money “resulting in no real punishment at all”.

On the second question of whether a trial should nevertheless take place, politicians from both sides this week said it should. “There are established precedents in proceeding with cases against defendants with advanced dementia,” they argue. “Defendants have been charged with child abuse and found guilty in their absence. One man’s ill health cannot be a barrier to the greater public interest.” All fair points in a debate that will rumble on.