Memorandum submitted by the Attorney General
JUSTICE COMMITTEE:
DRAFT CONSTITUTIONAL
RENEWAL BILL
The Justice Committee has said that, as part
of the pre-legislative scrutiny of the draft Constitutional Renewal
Bill it proposes to consider elements of the draft Bill and White
Paper, including those elements of the draft Bill which relate
to the role of the Attorney General.
The White Paper on the Governance of BritainConstitutional
Renewal sets out the Government's proposals for reform of
the role of the Attorney General and the Government's rationale
for those proposals. However, to assist the Committee further
in its consideration of the aspects of the draft Bill which relate
to the role of the Attorney General, I enclose notes on the following
matters:
(a) Consents to prosecution: Clauses
7-10 of, and Schedule 1 to, the draft Bill amend the prosecution
consent functions of the Attorney General. However, the attached
note explains in a more discursive manner the proposals in the
draft Bill.
(b) Annual report: Clause 16 of the
draft Bill requires the Attorney General to prepare and lay before
Parliament a report on the exercise of his or her functions on
an annual basis. The attached note gives an overview of what the
annual report might contain. As the primary purpose of the annual
report is to enhance Parliament's ability to hold the Attorney
General to account, the Government is particularly interested
in the views of the Committee as to what the annual report should
cover.
I look forward to working with the Committee
on its inquiry into the draft Bill.
Rt Hon Baroness Scotland of Asthal QC
15 May 2008
Note 1
PROSECUTION CONSENT FUNCTIONS OF THE ATTORNEY
GENERAL
This note sets out some additional background
on the function of the Attorney General to consent to the prosecution
of certain offences. The note then sets out the Government's provisional
recommendations for reform of the Attorney's prosecution consent
functions. The note also provides further detail as to why the
draft Constitutional Renewal Bill contains both a list of specific
amendments to the prosecution consent functions of the Attorney
General and a power to amend other functions by way of secondary
legislation.
BACKGROUND TO
THE PROSECUTION
CONSENT FUNCTIONS
OF THE
ATTORNEY GENERAL
In principle, any person can seek to institute
criminal proceedings. However, for certain offences, consent must
be obtained to the institution of proceedings. In some cases the
consent of the Attorney General is required. In other cases, the
consent of the Director of Public Prosecutions or other person
is needed.
The requirement to obtain consent enables a
consistent approach to be taken to decisions to prosecute where
the assessment of whether a prosecution is in the public interest
may be thoughtor was perhaps in the past thoughtto
be particularly difficult; and it ensures that private prosecutions
cannot be brought without proper grounds.
A number of consent provisions were created
before the three main prosecuting authorities (the Crown Prosecution
Service, the Serious Fraud Office and the Revenue and Customs
Prosecutions Office) existed and when the office of the Director
of Public Prosecutions handled a comparatively narrow range of
cases.
Currently, there are over 100 provisions which
require the Attorney's consent to prosecution.[1]
Rationale for conferring a consent function on
the Attorney General
There are varying rationales for a consent mechanism.
There are also various reasons for conferring the consent function
on the Attorney General rather than another person (for example,
the DPP). The main reasons why the requirement to obtain the consent
of the Attorney for a prosecution is included in legislation are
outlined in the Law Commission's report on Consents to Prosecution.[2]
However, it is not always apparent why a particular consent function
has been conferred on the Attorney, especially where the legislation
which has conferred the function dates back a number of years.
PROPOSALS FOR
REFORM
Schedule 1 to the draft Constitutional Renewal
Bill contains a number of amendments to the prosecution consent
functions of the Attorney General. The list of amendments in Schedule
1 is supplemented by the power in clause 8 of the draft Bill to
amend other prosecution consent functions of the Attorney by way
or order. (Clause 8 is discussed further below.)
The Annex to this note identifies which prosecution
consent functions of the Attorney are to be abolished (Category
1), retained by the Attorney General (Category 2), transferred
to the Director of Public Prosecutions or other Director (Category
3, sub-divided into 3 sub-categories).
Status of the proposals to amend the consent functions
Note that as the White Paper on the Governance
of Britain made clear, (see paragraph 92), further work is
needed to determine how each prosecution consent function of the
Attorney General should be categorised. The list of amendments
to the prosecution consent functions detailed in the draft Bill
and annex to this note is therefore provisional and liable to
be revised in light of further discussions with the prosecuting
authorities, the comments received via the pre-legislative scrutiny
process and further work being carried on by the Law Commission
in relation to offences in connection with bribery.
Prosecution consent functions not dealt with by
the draft Bill/this note
Under the package of reforms to the role of
the Attorney General proposed in the White Paper on the Governance
of Britain, the Attorney General will retain functions in relation
to contempt of court. Some of these functions take the form of
a requirement to obtain the consent of the Attorney for prosecution
of an offence which relates to breach of reporting restrictions
or otherwise for conduct which amounts to a contempt of court.
These consent functions are not addressed by this note.
This note does not deal with provisions which
require the consent of the Attorney General for proceedings brought
in Northern Ireland. When the provisions of the Justice (Northern
Ireland) Act 2002 come fully into force, the prosecution consent
functions of the Attorney General which give rise to particularly
difficult public interest considerations, in particular considerations
of national security or international relations (which are both
excepted matters under the Northern Ireland Act 1998) will be
transferred to the Advocate General for Northern Ireland. This
post will be held concurrently by the Attorney General for England
and Wales. The other prosecution consent functions of the Attorney
General will be transferred to the Director of Public Prosecutions
for Northern Ireland.
Amending prosecution consent functions by secondary
legislation
The Government proposes that the vast majority
of provisions which provide for the consent of the Attorney should
be amended (where amendment is needed) by primary legislation.
As noted above, the draft Constitutional Renewal Bill contains
a list of amendments to the prosecution consent functions of the
Attorney General with a view to transferring those functions to
the DPP (or other prosecutor) or, in some cases, abolishing the
function (see Schedule 1 to the draft Bill).
However, some of the Attorney's prosecution
consent functions are in secondary legislation or legislation
which has been or is due to be repealed. In line with general
drafting practice, it is not thought to be appropriate for amendments
to legislation of this kind to be included on the face of the
Bill.
In addition, while the Attorney General's Office
have conducted a full search of existing legislation, it is possible
that a further prosecution consent function might be identified
in the future. Taking a power would enable an amendment to be
made to such a provision.
In light of this, clause 8 of the draft Bill
confers a power on the Attorney General to amend other prosecution
consent functions of the Attorney General. This power will be
used to amend the prosecution consent functions which are contained
in secondary legislation or which have been, or are to be repealed.
The power will also be used to amend any consent functions which
have been overlooked.
Attorney General's Office
15 May 2008
Annex
PROVISIONAL PROPOSALS FOR THE AMENDMENT OF
THE PROSECUTION CONSENT FUNCTIONS OF THE ATTORNEY GENERAL
CATEGORY 1: ABOLITION
(Where it is no longer thought to be necessary
for the possibility of a prosecution to be constrained by the
requirement to obtain consent.)
Agricultural Credits Act 1928 section 10
(restriction on publication of agricultural charges).
Agriculture and Horticulture Act 1964 section
20 (any offence under the Actrelates
to the grading and transport of fresh horticultural produce).
Marine Insurance (Gambling Policies) Act 1909
section 1 (prohibition of gambling on
loss by maritime perils).
Water Industry Act 1991 section 211
(offences in relation to sewerage offences derived from other
Acts).
CATEGORY 2: RETENTION
BY THE
ATTORNEY
(Functions which give rise to particular public
interest considerations, including national security and implications
for international relations.)
These have been grouped along the following
lines:
(i) Offences which are especially likely
to raise issues relating to national security;
(ii) Offences which are especially likely
to raise issues relating to international relations;
(iii) Offences which are particularly likely
to raise other issues relating to the public interest.
Note that there is a high degree of overlap
between categories (i), (ii) and (iii). Categories (i) and (ii)
have been merged in the analysis below. It should be recognised
that a number of offences included in Category 2(i) and (ii) below
will also give rise to more generalised issues relating to the
public interest.
2 (i) + (ii) Offences which are especially likely
to raise issues relating to national security or international
relations
Anti-Terrorism Crime and Security Act 2001
sections 55 (offences under section 47 re use of nuclear weapons
and section 50 re assisting or inducing certain weapons-related
activities overseas), 81 (offences under section 79 re
disclosures relating to nuclear security and section 80 re disclosures
relating to uranium enrichment technology) and 113B (offence
under section 113 (use of noxious substances or things to cause
harm and intimidate).
Aviation and Maritime Security Act 1990 section
1(7) (endangering safety at aerodromes serving international
civil aviation) and section 16 (offences under Part II
of the Act relating to the safety of ships).
Biological Weapons Act 1974 section 2 (offence
under section 1developing certain biological agents and
toxins and biological weapons).
Chemical Weapons Act 1996 section 31 (offences
under sections 2 re using chemical weapons or section 11 re construction
premises or equipment for producing chemical weapons).
Criminal Law Act 1977 section 9 (trespassing
on premises of foreign missions, etc).
Geneva Conventions Act 1957 section 1A
(offences under section 1 re grave breaches of the Convention).
International Criminal Court Act 2001 sections
53 (offences under section 51 re genocide, crimes against
humanity and war crimes, and section 52 re conduct ancillary to
matters covered by section 51) and 54 (offences against
the administration of justice by the ICC).
Internationally Protected Persons Act 1978
section 2 (proceedings for offences which would not be offences
but for s 1 of the Act (attacks and threats on protected persons).)
Nuclear Explosions (Prohibition and Inspections)
Act 1998 section 3 (offence under section 1causing
of a nuclear explosion).
Nuclear Material (Offences) Act 1983 section
3 (offences under sections 1 and 2 which would not be an offence
but for the provisions of this Act, disregarding certain other
enactments. Offences are acts involving nuclear materials abroad
which if done in the UK would constitute one of the listed offences;
and offences involving preparatory acts and threats both in the
UK and abroad.)
Official Secrets Act 1911 section 8 (in
relation to any offence under the Act).
Official Secrets Act 1989 section 9 (consent
required for all offences under the Act with the exception of
that under s 4(2) where the consent of the DPP will suffice).
Protection of Trading Interests Act 1980
section 3(3) (failure to comply with a requirement imposed
by s 1(2), to inform the Secretary of State of any requirement
placed on a company by a foreign government which may affect UK
trade, or to knowingly contravene any directions given under s
1(3) or s 2 (1), directions in relation to ignoring the anti-UK
trade requirements of foreign governments outside of the latter's
territory, including the production of information to overseas
courts and governments).
Serious Crime Act 2007 section 53 (prosecutions
where conduct likely to take place outside England and Wales).
Suppression of Terrorism Act 1978 section
4(4) (offences which but for but for s 4 would not be an offence.
Section 4 extends the UK courts' jurisdiction in respect of offences
committed outside United Kingdom. The offences include murder,
kidnapping, false imprisonment, nuclear offences and firearm offences.)
Taking of Hostages Act 1982 section 2
(hostage-taking).
Terrorism Act 2000 sections 63E (offences
under sections 63B, 63C and 63D re terrorist attacks abroad by
or on UK nationals) and 117 (certain offences under the
Act which have been committed for a purpose connected with the
affairs of another country).
Terrorism Act 2006 section 19 (Attorney,
rather than DPP, consent needed for offences under the Act if
offence committed for a purpose connected to the affairs of another
country).
United Nations Personnel Act 1997 section
5 (offences which, disregarding certain enactments, would
not be offences apart from sections 1-3 of the Act. Offences include
attacks on UN workers outside the UK, attacks outside the UK on
premises or vehicles associated with the UN or threats to carry
out such offences).
Offences under secondary legislation relating
to sanctions (where the consent of the Attorney is required
for the prosecution of offences, other than summary offences)
(See for example Article 2 of the Extraterritorial US Legislation
(Sanctions against Cuba, Iran and Libya) (Protection of Trading
Interests) Order 1996 SI 1996/3171).
2(iii) Offences which are particularly likely
to raise other issues relating to the public interest
No additional offences identified.
CATEGORY 3A: TRANSFER
TO DPP (OR
OTHER PROSECUTOR)
WITH SAFEGUARDS
(Consent functions which are not to be abolished
or retained by the Attorney but which relate to offences for which
a prosecution is likely to raise particularly difficult issues.
Consent to be transferred to DPP or other Director but decision
on consent will have to be taken by the Director personally, or
by a person authorised by the Director to take the decision.)
* indicates that the consent function is
to be transferred to the DPP and Director of RCPO, exercisable
concurrently.
* indicates that the consent function is
to be transferred to the DPP and Director of SFO, exercisable
concurrently.
Aviation Security Act 1982 section 8(1)(a)
(offences under Part I excluding those contained within sections
4 and 7. Offences include hijacking, destroying, damaging or endangering
the safety of an aircraft, other acts endangering or likely to
endanger the safety of the aircraft, ancillary offences).
Criminal Justice Act 1988 section 135 (torture).
Income and Corporation Taxes Act 1988* section
766 (offences under s 765 re requirement for Treasury consent
for certain transactions).
Landmines Act 1998* section 20 (Offences
under section 2 re participation in the use, development, production,
acquisition, possession or transfer of an anti-personnel mine).
Official Secrets Act 1920 section 8(2) (no
summary proceedings for a misdemeanour under the 1911 or the 1920
Act except with the consent of the Attorney).
Prevention of Corruption Act 1906** section
2(1) (offence under section 1 re corrupt transactions with
agent).
Public Bodies Corrupt Practices Act 1889**
section 4(1) (any of the corruption related offences under
the Act).
Solicitors Act 1974 section 42(2) (failure
to disclose the fact of being struck off or suspended).
War Crimes Act 1991 section 1(3) (offences
of murder, manslaughter or culpable homicide, irrespective of
the nationality of the accused at the time of offending, if that
offence was committed between 1/9/39 and the 5/6/45 in Germany
or in the German occupied territories, and constituted a violation
of the wars and customs of war):
CATEGORY 3B: TRANSFER
TO DPP (OR
OTHER)
(Consent functions which are not to be abolished
or retained by the Attorney but which do not relate to offences
for which a prosecution is likely to raise particularly difficult
issues. Consent to be transferred to DPP or other Director without
requirement to be taken personally by Director or authorised person.)
* indicates that the consent function is
to be transferred to the DPP and Director of RCPO, exercisable
concurrently.
Adoption and Children Act 2002 section 99
(offences under section 9 re failure to comply with regulations
in relation to adoption services or section 59 re disclosure of
information).
Building Act 1984 section 113 (offences
created under the Act require the consent of the Attorney unless
the proceedings are brought by the party aggrieved or the local
authority/body who has the duty to enforce the relevant provision).
Care Standards Act 2000 section 29 (offences
under Part II, unless the prosecution is brought by the National
Care Standards Commission or the Secretary of State (where he
is for the time being exercising the functions of the Commission)
or the National Assembly for Wales. Offences include operating
an establishment which requires a licence without a licence and
making false descriptions of establishments and agencies).
Cancer Act 1939 section 4(6) (publication
of an advertisement consisting of an offer to treat, prescribe
for, or give advice in relation to the treatment of, cancer).
Children and Young Persons (Harmful Publications)
Act 1955 section 2(2) (printing, publishing, selling, or letting
of, or having in one's possession for the purposes of the selling
or letting, works to which this Act applies: works likely to fall
into the hands of children which reveal, in mostly picture form,
the commission of crime, acts of violence or cruelty and incidents
of a repulsive or horrible nature).
Counter-Inflation Act 1973 section 17(9)
(offences under the Act. Repealed by s 33(4), Sch 2 Competition
Act 1980 as from 1 January 2011).
Criminal Law Act 1977 section 4(2) (consent
required for conspiracy to commit an offence for which consent
is required).
Customs and Excise Management Act 1979 section
147* (consent for offence under Customs and Excise Acts unless
prosecution instituted by order of Commissioners). This is to
be repealed on a day to be appointed by virtue of CJA 2003 s 41
& 332, Sch 3 para 50 and Sch 37 pt 4.
Explosive Substances Act 1883 section 7(1)
(offences under the Act including offence under section 2
re causing an explosion likely to endanger life or property, section
3 re attempt to cause an explosion, or making or keeping explosive
with intent to endanger life or property, section 4 re making
or possession of explosives under suspicious circumstances, and
section 5 re accessories).
Highways Act 1980 section 312 (offences
under sections 167, 177, and those provisions referred to in Schedule
22 of the Act).
Housing Act 1985 section 339 (offences
under Part X when the local authority is being prosecuted. Part
X relates to overcrowding and related matters).
Law of Property Act 1925 section 183
(fraudulent concealment of documents and falsification of pedigrees).
Law Reform (Year and a Day Rule) Act 1996
section 2(1) (Consent required for the institution of proceedings
for a fatal offence: murder, manslaughter, infanticide or any
other offence of which causing another's death is a component;
and aiding, abetting, counselling or procuring another's suicide.)
Merchant Shipping Act 1995 sections 15 and
143 and Schedule 3A (offences in relation to fishing vessels
and pollution and safety regulations).
Mines and Quarries Act 1954 section 164 (offence
under section 151 re fencing of mines and quarries).
National Health Service Act 2006 section
269 (offences in relation to notices of births and deaths).
National Health Service (Wales) Act 2006
section 200 (offences in relation to notices of births and deaths).
Prevention of Oil Pollution Act 1971 section
19 (offences under the Act unless proceedings brought by harbour
authority or, in certain cases, the consent of the Secretary of
State or a person authorised by him has consented. Offences relate
to the discharge of oil into the waters of a harbour in the United
Kingdom and failure to comply with a requirement of a harbour
master, or in respect of obstruction of a harbour master).
Public Health (Control of Disease) Act 1984
section 64 (consent required for offences under the Act or
byelaws made under the Act unless prosecution brought by the party
aggrieved, the local authority/body who has the duty of enforcing
the provision or the person who made the byelaw. A constable may
also take proceedings in certain cases).
Public Health Act 1936 section 298 (in
relation to any offence under the Act unless proceedings taken
by a party aggrieved, a council or a person whose function is
to enforce the provisions in question).
Public Order Act 1936 section 2(2) (prohibition
of quasi-military organisations).
Public Order Act 1986 sections 27, 29L
(incitement to race/religious hate offences).
Serious Organised Crime and Police Act 2005
section 128 (trespass on designated sites).
Shipping and Trading Interests (Protection)
Act 1995 section 7 (for offences in relation to coastal shipping).
Theatres Act 1968 section 8 (offences
under sections 2, 5, 6 of the Act, or under the common law in
relation to the publication of defamatory material in the course
of a play. Offences include presenting or directing in public
a play which is obscene, contains threatening, abusive or insulting
words likely to stir up hatred against a group of the population
due to their colour, race, ethnic or national origins, or contains
threatening, abusive or insulting words with intent to, or where
the performance taken as a whole is likely to, cause a breach
of the peace).
Vehicles (Crime) Act 2001 sections 14 and
30 (offence under Parts 1 and 2 unless proceedings brought
by a local authority or a constable).
Water Act 1945 section 46 (offences under
the Act unless proceedings are brought by the Minister of Health,
a local authority, statutory water undertakers, or person aggrieved.
Offences include offences under byelaws made under powers granted
by the Act and provision of false information) (Repealed with
savings by Water Act 1989.)
Article 9 of Channel Tunnel (Security) Order
1994. SI1994/570
CATEGORY 3C: TRANSFER
TO DIRECTOR
OF SERVICE
PROSECUTIONS
Armed Forces Act 2006 sections 61 and 68
(prosecutions brought outside time only with the consent of
the Attorney). (See also section 326 (disapplication
of requirement to obtain the consent of the Attorney) which will
need modification).
Note 2
Annual Report to Parliament by the Attorney General
Clause 16 of the draft Constitutional Renewal
Bill provides that the Attorney General must prepare and lay before
Parliament on an annual basis a report on the exercise of the
functions of the Attorney General. This note outlines what that
report might include.
Limits on the information which may be included
in the annual report: Note that, in relation to a number of
the functions of the Attorney General, there will be limits on
the information which can be included in the annual report. This
is reflected in Clause 16(2) of the draft Bill. In particular:
Information in relation to criminal
cases: Where the Attorney exercises a function in relation to
a particular criminal case, it may not be appropriate for the
annual report to include information about the particular case.
It will be particularly important that the annual report does
not include information which would prejudice the investigation
of a suspected offence or proceedings before a court.
Information which is legally privileged:
The annual report will not generally include information about
legal advice that the Law Officers have provided or other material
for which a claim to legal privilege could be maintained.
Information with implications for
national security or international relations: Information the
disclosure of which would prejudice national security or would
seriously prejudice international relations will also generally
not be included in the annual report.
Personal data: It will generally
be inappropriate to include personal data in the annual report.
OVERVIEW: A SUMMARY
OF THE
REPORT, DRAWING
OUT KEY
THEMES AND
NOTING KEY
EVENTS
Introduction
The Law Officers have various roles:
Upholding the Rule of Law, including
as Chief Legal Adviser to the Government
Acting independently of Government
in the public interest
Superintending the Law Officers'
Departments; and
Being Criminal Justice Ministers.
The annual report will provide an account to
Parliament and to the public of what the Law Officers have done
each year.
Exercise of functions in relation to the
prosecuting authorities which are superintended by the Attorney
under statute (CPS, SFO and RCPO): A summary of the operation
of the superintendence relationship including:
the strategic objectives and priorities
which have been set, and an account of how they have been met;
summary of co-ordination of general
or cross-cutting issues;
account of financial management and
vfm.
Exercise of functions in relation to other
prosecuting authorities (including the service prosecutors and
Departments who exercise prosecutorial functions): To include:
a summary of the operation of the
non-statutory superintendence relationship with the Director of
Service Prosecutions;
account of proceedings at the Service
Justice Board;
summary of co-ordination of general
or cross-cutting issues.
Exercise of functions in relation to criminal
prosecutions: A summary of the exercise of the Attorney's
functions acting in the public interest in relation to criminal
proceedings. Will include functions in relation to:
the referral of unduly lenient sentences;
referral of points of law; and
consents to prosecution.
Likely to include statistics as to number of
cases dealt with including, in relation to unduly lenient sentences,
the proportion of cases referred by the Attorney General which
have resulted in an increased sentence.
Exercise of other functions in the public
interest: A summary of the exercise of the Attorney's other
public interest functions including functions in relation to:
power to restrain vexatious litigants;
and
In relation to casework, likely to include statistics
of cases dealt with and their outcome.
Exercise of functions in relation to litigation:
A survey of the functions of the Attorney General in relation
to civil and criminal litigation. Likely to include details of:
management of panels of Counsel (including
Treasury Counsel) to represent the Crown in civil and criminal
proceedings, including action taken to promote diversity of the
panels;
litigation in which the Attorney
has intervened/participated on a public interest basis;
litigation in which the Attorney
has, at the request of the court, appointed an advocate to the
court;
role of the Attorney General in appointing
special advocates;
litigation in which the Attorney
General or Solicitor General has appeared in person;
litigation brought by the Attorney
at the relation of a person who would not otherwise have standing
(relator actions);
intervention in legal proceedings
to assert the rights of Parliament.
Exercise of functions in relation to oversight
of the Treasury Solicitor's Department and the Government Legal
Service. Including a summary of the key trends in work undertaken
by the GLS during the year; details of staffing and skills; diversity.
Exercise of functions in relation to the
legal profession: A summary of the Attorney's activities in
relation to the legal profession including:
activities in relation to pro bono;
activities of the Attorney in capacity
of leader of the Bar.
Criminal Justice Minister
Summary of cross-cutting initiatives, policy
developments and system reforms led or championed by the Law Officers
in their role as Criminal Justice Ministers. A report on outcomes
of partnership work to reduce crime and to deliver a more effective,
transparent and responsive Criminal Justice System for victims
and the public.
International activities: A summary of
the Attorney's role including activities to promote the rule of
law overseas and overseas visits.
Parliamentary activities: A summary of
the Attorney's role in Parliament. Likely to include:
detail of statements made by the
Law Officers to the House;
details of appearances of the Law
Officers before Parliamentary Committees;
role of the Law Officers in taking
Government legislation through Parliament;
overview of PQs dealt with by the
Law Officers;
overview of correspondence from Parliamentarians
handled by the Law Officers (not to include substantive content
of correspondence except in appropriate cases).
Functions in relation to Northern Ireland
A summary of the exercise of the functions of the Attorney
General in capacity as Attorney General for Northern Ireland including:
exercise of functions in relation
to the Public Prosecution Service;
exercise of functions in relation
criminal prosecutions;
exercise of other functions in the
public interest;
exercise of functions in relation
to litigation.
Attorney General's Office
15 May 2008
1 The Attorney General's Office has conducted a comprehensive
Lexis search of all public general Acts and all secondary legislation
to identify provisions which require the consent of the Attorney. Back
2
See in particular paragraph 3.27 of Consents to Prosecution
LC255. Back
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