REFORM OF THE LAW ON CONSENTS TO PROSECUTE
1. INTRODUCTION
1.1 Many offences currently require the
consent of the Attorney General, the Solicitor General or the
Director of Public Prosecutions (DPP) for the institution of criminal
proceedings.
1.2 Such consent provisions operate as a
procedural constraint on the prosecution of those specified offences.
This is the case whether the prosecution is brought by the police
and the CPS, or by any other public or private prosecuting agency
or individual.
2. THE CPS AND
THE LAW
ON CONSENTS
2.1 The CPS is the largest prosecuting authority
in England and Wales. Consequently, the law on consents directly
affects the day to day working of prosecutors.
2.2 Since the creation of the CPS in 1986
all Crown Prosecutors have had the power to give consent on behalf
of the DPP, by virtue of section 1(7) of the Prosecution of Offences
Act 1985. Consent cannot, however, be implied simply because proceedings
are being conducted by the CPS. Crown Prosecutors must specifically
consider the merits of proceeding in each relevant case.
2.3 If proceedings which require consent
are instituted without it, both the committal proceedings and
any trial are a nullity.
2.4 Where a case involves an offence requiring
the Law Officers' consent, it is dealt with at a senior level
within both the CPS area and Headquarters. Seeking Attorney General's
consent involves a considerable investment of time, and can also
lead to delays in proceedings.
3. LAW COMMISSION
REPORT
3.1 In July 1998 the Law Commission produced
a report on "Consents to Prosecution". This followed
consultation with a wide range of organisations, including the
CPS.
3.2 The Commission felt that the existence
of consent provisions was justifiable where they could prevent
harm that could be caused by the simple commencement of inappropriate
criminal proceedings.
3.3 However, it also found that an extensive
number of statutes contained consent provisions, that they often
appeared to have been "arbitrarily imposed", and that
they exhibited a number of anomalies.
3.4 The Commission concluded that the present
consents regime needed to be reformed and that such reform should
take account of the Human Rights Act 1998, and the recommendation
of the Glidewell Report.
3.5 The Law Commission made three main recommendations
which, if adopted, would directly affect the CPS.
3.6 The first was that all current consent
provisions should be dispensed with, other than those which fall
into the following three categories:
— where prosecution could be held to
violate a defendant's rights under the European Convention on
Human Rights;
— where cases involve issues of national
security or have some international element; or
— where there is a high risk that the
right of private prosecution will be abused.
3.7 The second was that the DPP should exercise
the power of consent in all cases other than those involving international
elements or matters of national security.
3.8 The third was that the DPP's delegated
power of consent should be removed from all Crown Prosecutors
other than Chief Crown Prosecutors.
3.9 The CPS response to the Law Commission
Consultation Paper is attached at A[6].
4. CURRENT POSITION
4.1 The Law Commission Report was laid before
Parliament in 1998.
4.2 New legislation continues to be drafted
to include consent provisions, both in respect of the Attorney
General's consent and the DPP's consent, in particular, the Terrorism
Bill.
6 Not printed. Back
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