Consenting to Prosecutions: The Legal Consequences of Non-compliance With the Requirement

Abstract

Keywords

Institution of proceedings requisite consent to prosecute Attorney-General legislative intention venire de novo

The appellant had been identified as the alleged perpetrator of anti-Semitic and homophobic graffiti written in permanent marker pen at various bus stops in the London Borough of Barnet. Following his arrest, he was found to be in possession of leaflets containing similar writing to the graffiti, as well as several black marker pens. A USB stick which he had was also found to contain further such writings. In its final form, the indictment against him contained five counts: two counts of religiously and racially aggravated damage to or destruction of property, contrary to s.30(1) of the Crime and Disorder Act 1998 (counts 1 and 2); counts of destroying property, contrary to s.1(1) of the Criminal Damage Act 1971, and of having articles with intent to destroy or damage property, contrary to s.3 of the 1971 Act (counts 3 and 4); and a count of stirring up racial hatred, contrary to s.18(1) of the Public Order Act 1986 (count 5). Whilst the appellant had pleaded guilty to counts 3 and 4, there was a trial on counts 1, 2 and 5.

At his trial, the appellant did not dispute that he wrote the graffiti. He claimed that he was seeking to make others aware of the ‘new world order’ and he expressed various conspiracy theories relating to, for example, unidentified flying objects, the Pope, vaccines and the Queen. On 22 September 2021, a jury convicted him on count 2 (by a majority) and on count 5 (unanimously). Since they were unable to reach a verdict on count 1, the trial judge discharged them from doing so. The present appeal was confined to count 5. By a letter dated 29 November 2021, the CPS notified the appellant's lawyers that the consent of the Attorney-General to count 5 had not previously been obtained. This was in direct conflict with s.27(1) of the 1986 Act which states: ‘No proceedings for an offence under this Part may be instituted in England and Wales except by or with the consent of the Attorney General’. The letter also included a written notice with the same date, signed by the Solicitor-General, in which consent to the prosecution under the 1986 Act was given. The issue in the present appeal was, therefore, whether a conviction for an offence which requires the consent of the Attorney-General before the proceedings are instituted could stand when no such consent was obtained.

Held, allowing the appeal, that the notion of consent being required to be given by the Attorney-General, or another person, prior to the institution of criminal proceedings was neither unique to the Public Order Act 1986, nor new. Both the language of s.27(1) and the statutory context and purpose told strongly against dismissing the requirement of consent as a mere technicality. Rather, the imperative language used led to the natural implication that proceedings were to be regarded as invalidated if consent had not been obtained before they were instituted. Moreover, the weight of previous legal authorities also pointed to the same conclusion. Interpreting s.27(1) thus achieved a desirable certainty and uniformity of outcome. Accordingly, since the consent of the Attorney-General had not been obtained before the count 5 proceedings had been instituted, those proceedings were invalid. It followed that the conviction on count 5 was itself invalid.

Commentary

Introduction

The present appeal was concerned with the operation of a statutory requirement designed to exercise a measure of control over the prosecution process, and which therefore features in many Acts of Parliament other than the Public Order Act 1986. Thus, as the Lord Chief Justice, Lord Burnett of Maldon noted, when the Law Commission considered the matter more than 20 years ago in its report, ‘Consents to Prosecution’ (Law Com No.255 (1998)), it had indicated, amongst other things, that statutory requirements for the Attorney-General's consent for prosecution had a long history dating back to the 19th century, and that at the date of publication of its report, extant consent provisions existed in 67 statutes (see Appendix A to the Report). In the interim, Parliament has continued to employ the requirement when it has considered it appropriate to do so, although the identity of the office holder who is able to give consent is sometimes different, and the role may be shared. Thus, for example, s.37(a) of the Economic Crime (Transparency and Enforcement) Act 2022 provides that proceedings for an offence under Part 1 of the Act ‘may not be brought in England and Wales except by or with the consent of the Secretary of State or the Director of Public Prosecutions’.

Whilst the Law Commission was of the view in 1998 that ‘in certain circumstances consent provisions are justifiable to prevent harm that may be caused by the institution of inappropriate proceedings even though they may be terminated’ (see ‘Executive Summary’, p. iii), it concluded that ‘the present consents regime is in an unsatisfactory state’ and therefore recommended its reform (para. 4.29). It should be noted, however, that whereas the Law Commission advocated the abolition of some consent provisions, for example, s.7(1) of the Explosive Substances Act 1883, it supported the retention of others ‘due to the likelihood that a defendant will reasonably contend that a prosecution would violate his or her Convention rights’ (para. 6.62) or ‘on the ground that the substance of the statute has potential international repercussions or some impact on national security’ (para. 6.64). The offence contrary to s.27(1) of the 1986 Act was expressly identified as being in the former category. It seems unlikely that the Law Commission's position will have changed on this in the intervening years.

The Constitution of the Court of Appeal

Ordinarily, the Court of Appeal (Criminal Division) sits as a three-judge court: see s.55(2) of the Senior Courts Act 1981. It is worth noting, therefore, that the present appeal was heard by five judges who included, in addition to the Lord Chief Justice, the President of the QBD (Dame Victoria Sharp) and the Vice President of the Criminal Division of the Court of Appeal (Fulford LJ). As Gillespie and Weare note, a ‘full court’ of five judges is usually only convened ‘for significant matters (normally reserved for the issuing of practice directions or where they seek to depart from precedent …)’: see The English Legal System, eighth edn, OUP (2021), p. 564. Whilst this observation is undoubtedly correct, the appeal in Lalchan did not satisfy either criterion. Indeed, rather than representing a departure from precedent, the Court of Appeal's interpretation of s.27(1) of the Public Order Act 1986 was very much in line with past authorities, as will be shown below. In contrast to the decision in R v Simpson [2004] QB 118 (referred to by Gillespie and Weare), where a per curiam issue relating to the interpretation of the law contrary to a previous authority was ‘of considerable significance and explains why it was thought appropriate to have a decision by a court constituted by the five judges who are hearing this appeal’ (per Lord Woolf CJ at [21]), in Lalchan, the current Lord Chief Justice did not explain the rationale for departing from the norm.

Attorney-General's Consent

It will be recalled that s.27(1) of the 1986 Act specifically refers to the consent of the Attorney-General as being a necessary pre-condition for a prosecution under Part 1 of the Act to be instituted. There is thus no mention in the Act of the consent being provided by the other Law Officer, the Solicitor-General, despite the fact that this is what happened in Lalchan. Whilst at first glance this may appear to raise issues relating to the delegation of the consent function, the point was not argued on appeal. This was because ‘any function of the Attorney-General may be exercised by the Solicitor-General’ (per Lord Burnett, at [9]). Statutory authority for the point is to be found in the cumulative effect of s.1(1) and (2) of the Law Officers Act 1997, which empower the Solicitor-General to exercise any of the Attorney-General's functions and provide that where this occurs, it is as if the Attorney-General has acted in the matter.

The Legal Authorities

One of the main submissions advanced on behalf of the appellant was that the settled case law pointed to the conclusion that a failure to comply with the consent requirement led to the quashing of any subsequent conviction. Various authorities were invoked in support, including the decisions in R v Angel [1968] 1 WLR 669 and R v Pearce (1981) 72 Cr App R 295. In the former, the defendant, a 59-year-old man, had pleaded guilty to one count of gross indecency and two counts of buggery with a boy aged nine. In the words of the then Lord Chief Justice, Lord Parker, his sentence of 4 years’ imprisonment was ‘thoroughly deserved’. Regrettably, however, the proceedings against him had been instituted without first obtaining the consent of the DPP, contrary to the requirement laid down in s.8 of the Sexual Offences Act 1967. Accordingly, as Lord Parker explained, ‘the court has no alternative but to quash the conviction on the ground that the trial was a complete nullity’ (at 670). In Pearce, the issue was more nuanced in the sense that whilst consent had been provided by the Attorney-General to institute proceedings for the substantive offence of incitement to racial hatred (contrary to s.5A of the Public Order Act 1936), no separate consent had been given to bring proceedings for a conspiracy to commit the s.5A offence (contrary to s.1(1) of the Criminal Law Act 1977). Whilst it was submitted on behalf of the Crown that the consent in relation to the prosecution for the s.5A offence could be construed so as to include the conspiracy offence, this was rejected by the Court of Appeal. Accordingly, since the necessary consent for the prosecution of the conspiracy charge did not exist, the appellant's conviction for that offence was quashed.

It is worth noting that the relevant authorities pre-date the Angel and Pearce decisions. Thus, in R v Bates [1911] 1 KB 964, for example, where the appellant had been convicted of unlawfully and maliciously causing an explosion likely to endanger life contrary to s.2 of the Explosive Substances Act 1883, and been sentenced to 4 months’ imprisonment with hard labour, his conviction was quashed on appeal since the requirement in s.7(1) of the Act to obtain the consent of the Attorney-General had not been complied with. In contrast to Lalchan, the point had not been raised by the appellant in his notice of appeal. However, the Lord Chief Justice at the time, Lord Alverstone, noted that the court ‘must deal with it now as if it had in fact been raised’. In the judgment of the court, ‘the failure to obtain the consent of the Attorney-General deprived the court of any jurisdiction to try the prisoner on the indictment, and, that being so, the conviction must be quashed’ (at 965). In arriving at this conclusion, the court found support in a previous decision, R v Fuidge (1864) 169 ER 1443, where a conviction for an offence of obtaining a shawl by false pretences was quashed for the same reason. Under the relevant statute, the Vexatious Indictments Act (22 & 23 Vict.), a bill of indictment could not be presented to a jury without ‘the consent in writing of a Judge of one of the Superior Courts of Law at Westminster, or of her Majesty's Attorney-General or Solicitor-General’.

Inevitably, counsel for the respondent in Lalchan also made use of the authorities to try to convince the court that the proceedings had not been invalid. He relied on decisions in which a ‘broader approach’ had been taken by the criminal and civil courts where a procedural requirement had not been complied with: see, for example, Governor and Company of the Bank of Ireland & another v Colliers International UK plc [2012] EWHC 2942 (Ch). As Lord Burnett explained, it was submitted that these cases ‘exemplified the more modern approach, requiring a focus not on the technical law relating to nullity but on the fairness of the trial, on fairness to a defendant and on the safety of the conviction in a criminal case’ (at [23]). Importantly, however, the Court of Appeal in Lalchan rejected the contention that a ‘modern approach’ even existed. Instead, it was of the opinion that ‘consideration of the fairness of proceedings or prejudice to the defendant will only arise if, on construction of the statutory provision in hand, the conclusion reached is that the purpose was not that an act done in breach of the statutory requirement should be invalid’ (at [39]).

Venire de Novo

By virtue of s.53(2)(d) of the Senior Courts Act 1981, the Court of Appeal (Criminal Division) has the jurisdiction to order the issue of the prerogative writ of venire de novo. As L H Leigh has noted, however, ‘the survival of venire de novo into modern law derives from the decision of the House of Lords in Crane v DPP [1921] 2 AC 299’: see ‘Venire de Novo: Do We Need It?’ (2006) JPN Vol. 170, 84–87. In effect, the issue of the writ sets aside a conviction so as to enable a retrial to take place where this is desired by the prosecution. In Lalchan, the Court of Appeal considered it appropriate to issue the writ on the basis that whilst the failure to obtain the prior consent of the Attorney-General had been ‘a very serious and regrettable failing’, a valid consent had subsequently been provided. In expressing this aspect of the judgment, Lord Burnett remarked that ‘the proceedings in the Crown Court were not entirely invalid’ (at [44]). That part of the proceedings which related to count 5 patently were invalid for want of consent, as the Court held, but the proceedings relating to counts 1 and 2 were not similarly tainted. At some point in the future, therefore, the appellant is likely to face a new trial for stirring up racial hatred contrary to s.18(1) of the Public Order Act 1986.

Conclusion

The decision in Lalchan reflects a further application of a long-established and important principle relating to the institution of criminal proceedings, and the rejection of an alternative ‘modern approach’ to consent requirements. In the present instance, the need for consent is based on cogent public policy reasons which Parliament endorsed by the use of imperative language in s.27(1) of the 1986 Act. The legislative intention would be fatally undermined if a failure to obtain consent had little or no impact on the validity of the relevant proceedings. In Lalchan, it is clear that for the purposes of the appeal, the court took the view that the ‘proceedings’ were confined to count 5. Thus, since the invalidity of those proceedings through want of consent did not invalidate the indictment as a whole, the appellant's conviction for the count 2 offence remains valid. If in the future, an appellant convicted of a number of different offences on the same indictment were to argue that all their convictions were unsafe because prior consent had not been obtained in relation to one offence for which it was a prerequisite, it would seem that on the strength of Lalchan, the submission would have no traction.