Focus: It's one law for them...

A judge escapes a trial because he is deemed unfit and suicidal. Such leeway is rarely extended to humbler defendants

NOLLE PROSEQUI is an ancient legal power so buried in the bedrock of the common law that even the office of the Attorney-General is unable to explain its origins. Yet the old law which excuses a defendant from having to stand trial was well known to the advisers of Richard Gee, a Crown Court judge accused of participating in a pounds 1m mortgage fraud.

They made an application to the Attorney-General, John Morris, and in the Old Bailey last week the proceedings against Judge Gee were halted as the court was told that he was "a broken man and a serious suicide risk" if made to stand trial.

The decision caused uproar. Since his arrest in November 1995, Judge Gee, who had pleaded not guilty, has continued to bank his pounds 86,801 salary and is now seeking the return of his pounds 70,000 contribution to his defence costs.

With homes in Belgravia, New York and Portugal, and a Mercedes with GEE 1 personalised number plates, his wealth and status inevitably prompted suspicions that he exploited an obscure escape clause reserved for the rich and the judiciary.

"The whole business is deplorable," said the Daily Mail, in a leader which pointed out that "no bigwig" would come to the rescue of the many hundreds of other defendants "sick with worry" about a prospective court appearance. A spokesman for the Law Society noted: "I can't think of any burglars who this has happened to."

So what exactly is nolle prosequi? The Attorney-General's office last week described it as an "ancient and discretionary power" but was vague about its provenance. The first recorded instance of its use was in 1555 when a group of MPs was excused being tried for "departing without licence" from the House of Commons. In modern times, it has been invoked on average around four times annually in response to about a dozen applications a year.

The device amounts to the relinquishing of suit by the plaintiff and can only be granted by the Attorney-General after referral, in criminal cases, by the Crown Prosecution Service. Claims for nolle prosequi have been made by defendants arguing that the prosecution has failed to hand over documents crucial to a fair trial. Others have argued that proceedings should be stopped "on compassionate grounds" because the defendant has a terminal illness.

But the only successful recent claims have been those where the defendant has been able to prove to the satisfaction of doctors that they have a physical or mental incapacity to stand trial.

Judge Gee had already been through the trauma of a record-breaking 13 days of deliberation by the jury in his original four-month trial which began last March. The jurors still failed to reach a verdict. Examining Judge Gee on behalf of the defence, Professor John Gunn of the Maudsley Hospital, in London, said: "The stress of a retrial would strongly endanger his life and to preserve his life I suggest the possibility of a retrial be abandoned."

After doctors hired by the prosecution reached the same conclusion, Joanna Korner, the prosecuting counsel, told the court: "This case clearly is at an end and [nolle prosequi] represents the simplest and most effective way of ending it."

WHILE it may be rarely used, nolle prosequi has had a tendency to be invoked in cases involving some of the highest-profile defendants. Banker Roger Seelig, one of the defendants in the second trial relating to the Guinness takeover, avoided facing fraud charges after the judge said that he might do "something irrevocable" if proceedings continued. The case was dropped in 1992 after doctors from both the defence and the prosecution found he was unable to control his emotions, lacked mental clarity and judgement and had suffered slight brain damage from a stroke. Critics of the Guinness prosecution - which also saw Ernest Saunders released early from prison with senile dementia before he made a successful comeback as a business consultant - later observed that Mr Seelig managed to revive his City career.

Earlier this year, the racist dowager Lady Jane Birdwood escaped prosecution on charges of inciting racial hatred when the Attorney-General accepted that she did not have the mental capacity to stand trial. Only four years ago she had been given a three-month prison sentence suspended for two years after being found guilty of distributing a book called The Longest Hatred, which described the Holocaust as a lie and claimed a Jewish conspiracy to undermine society.

Within weeks of January's nolle prosequi order, Lady Birdwood, 84, was back out on the streets distributing copies of anti-Jewish leaflets. But Gerry Gable, of the anti-racist magazine Searchlight, said he had no quarrel with the decision not to prosecute. "In her case it was appropriate because she is clearly not of sound mind," he said.

In other instances, nolle prosequi has been used only after enormous public costs have been run up in building a case against the defendant. Last year, the then Attorney-General, Sir Nicholas Lyell, invoked such an order to halt the prosecution of alleged Nazi war criminal Szymon Serafinowicz, a move which followed police investigations costing pounds 5m, a magistrates' committal and a nine-day Crown Court hearing. There was also pounds 2m worth of prosecution costs.

Mr Serafinowicz, an 86-year-old retired carpenter from Banstead in Surrey, was facing three specimen charges of murdering Jews while working as a police volunteer during the Nazi occupation of Byelorussia. Nicholas Bowers, Mr Serafinowicz's solicitor, denied that his client had faked his condition. "My client is an elderly man whose health has deteriorated rapidly in recent years, during which he has suffered the death of his wife and then the incredible pressure of these proceedings." Less than seven months later, Mr Serafinowicz died in hospital.

BUT EVEN if the few orders of nolle prosequi appear to be based on sound reasoning, should the power not be made available to a wider constituency? As Stephen Shaw, director of the Prison Reform Trust observed: "The criminal justice system is remarkably unforgiving of people with mental health problems as a general rule."

Britain's jails are teeming with mentally ill prisoners. Some 19 per cent of sentenced prisoners and 25 per cent of inmates held on remand are reckoned to be mentally disturbed. Last year, 750 prisoners were transferred to mental hospitals, but many are overlooked for specialist treatment.

Suicidal tendencies among prisoners are commonplace. Last year, 5,319 inmates committed acts of self-harm and 68 took their own lives. Paul Cavadino, of the Penal Affairs Consortium, said: "Of the people that commit suicide in prison about half have a known psychiatric history." Only last Thursday, 19-year-old Christopher Walker died in a suspected suicide at Chelmsford prison while awaiting pre-sentence psychological reports after admitting robbery and gross indecency.

London lawyer Louise Christian said many people who are clearly unfit to stand trial are not being offered nolle prosequi. While accepting the "danger that people will start threatening suicide just to have the case against them dropped", Ms Christian said the orders should be more widely used. She compared the case of Judge Gee with that of one of her clients, a 17-year-old African refugee who was charged with rioting at the Campsfield detention centre, near Oxford, last year. After being taken into Feltham Young Offenders Institution, west London, awaiting trial, the 17-year- old tried to take his life by swallowing an overdose of anti-depressant tablets. He survived, but despite advice from a prosecution psychiatrist that he was mentally ill, proceedings against him were not dropped until the case against five co-defendants collapsed.

"Nolle prosequi seems to only exist for middle-class, well-spoken people with whom the Attorney-General identifies," said Ms Christian. "If you are a 17-year-old black youth you are not going to have it exercised in your favour."