Consents to Prosecute
- Form of Consent in Cases requiring the Prior Consent of the DPP
- Procedure for obtaining DPP's personal consent for Bribery Act 2012 prosecutions
- Obtaining the consent of the Law Officers
- Procedure for obtaining the Law Officers' consent
- Timing of application for Law Officers' consent
- Involvement of the AGO as the case progresses
- Discontinuing / Accepting pleas in AG consent cases
- Institution and Prosecution of Offences under the Customs and Excise Acts
- Request for DPP Consent from another Prosecuting Agency
- Private Prosecution
- Annex 1
- Annex 2: Example Consent Notices
- Annex 3: Application for AG Consent
Some offences and other matters cannot be instituted without the prior consent to prosecute of the Attorney General (AG) or the Director of Public Prosecutions (DPP).
It is important to identify cases that require AG's consent and inform the Attorney General's Office (AGO) that an application wil be forthcoming in relevant cases. A schedule of offences and other matters requiring consent is attached at Annex 1, Parts 1, 2 and 3. However, prosecutors should always read the offence-creating statutory provision when faced with an unfamiliar charge to check whether consent is required at some point in proceedings.
Prosecutors should also be aware that some offences require consent in some circumstances and not others.
Prosecutors may be asked to give consent on behalf of the DPP over the telephone. This can be done, but only following a review of the case to the appropriate Code standard (whether threshold or full). Consent should not be given unless the case has been reviewed in accordance with the Code and both stages of the applicable Code Test are satisfied. Where consent is given over the telephone the appropriate form of consent should be completed and placed on the case file (see further under Form of Consent below).
In all cases the fact that consent is required or has been obtained should be noted on the MG3.See the Recording Consent section below.
Consent cases are statutorily created, with the requirement for consent being imposed in order to prevent certain offences being prosecuted in inappropriate circumstances. In a memorandum to the 1972 Franks Committee, the Home Office set out five overlapping reasons why certain offences require consent:
- To secure consistency in prosecution, e.g. where it is not possible to define the offence very precisely so that the law goes wider than the mischief aimed at or is open to a variety of interpretations;
- To prevent abuse or bringing the law into disrepute, because the offence is a kind which may result in vexatious private prosecutions;
- To enable account to be taken of mitigating factors, which may vary so widely from case to case that they are not susceptible to statutory definition;
- To provide some central control over the use of the criminal law when it has to intrude into areas which are particularly sensitive or controversial, such as race relations; and
- To ensure that prosecution decisions take account of important considerations of public policy or international nature such as may arise, for example, in official secrets or hijacking.
Consents are required before the institution of proceedings. However, section 25(2) of the Prosecution of Offences Act 1985 (POA) provides that, in any case where consent is required, it "shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence".
The effect of s25 is to allow a person to be charged and for a number of procedural steps to be taken - arrest, remand, bail - prior to consent being obtained. These procedures are therefore "protected" from being declared a nullity (magistrates' court) or set aside (Crown Court), even if no consent has been obtained by the time they take place.
A number of authorities have addressed the issue of which hearings are protected by s25(2). Put another way, by what time or what hearing must consent be obtained to prevent proceedings being declared a nullity or set aside? These authorities may be summarised as follows:
1. Information & Summons/Charge & Requisition
In R v Bull (1994) 99 Cr. App. R. 193, the Court endorsed the approach taken in Price v Humphries  2 QB 353, which related to a Ministerial consent provision under s53 of the National Insurance Act 1946. The court stated::
"Proceedings in summary jurisdiction of this sort are instituted by the laying of an information and the issue of a summons, and, when the summons is issued, that is the institution of the proceedings. The point, therefore, at which the consent or authority must be proved is when the summons is issued, and it is the duty of the clerk to the justices if application is made to him, as it generally is, for the laying of the information or the issue of the summons, to see that the requirements of section 53 are complied with, otherwise the summons will be bad."
There have been no cases decided under the new written charge and requisition procedure but, due to its obvious similarities, it seems likely that the courts would conclude that the proceedings are instituted when the written charge and requisition are issued.
2. Arrest and charge
It is important to note that the the procedures by which an accused is brought before a criminal court have changed dramatically over the years. The law has therefore been applied to an ever changing procedural landscape. This point was highlighted in
R v CW and MM  EWCA Crim 906
The court emphasised that in 2015 there is an expectation that criminal proceedings will be more efficient than in the past: "the desirable abridgement of time from arrest to disposition is uncontroversial and familiar to all parties in the criminal justice system".
R v Elliott  81 Cr. App. R 115
The court found that instituting proceedings relates to the time when a person comes to court to answer the charge. However, it is unclear what exactly the court was referring to by "to answer the charge".
R v Whale and Lockton  Crim LR 692
The Court decided that "when a person comes to court to answer the charge" was a reference "to the stage at which the case proceeded beyond the formalities of the charging of the offender and such ensuing remands as in fact occurred". In this particular case that stage was reached, and proceedings were therefore instituted when the defendants were "arraigned for the purposes of the committal proceedings": it was then that they came to court to answer the charge.
Although the arraignment was identified as the point at which proceedings were instituted in this case, curiously no arraignment seems to have taken place in the committal proceedings, nor was an arraignment required or provided for.
R v Bull  99 Cr. App. R. 193
The court held that proceedings were instituted at the committal proceedings. Although the point was not specifically addressed, a mode of trial procedure must have taken place as the offences were triable either way, and by implication such a hearing must arguably have been protected under section 25(2).
R v Lambert  2 Cr. App. R 32
The procedures for the progress of indictable offences through the court system changed dramatically between Bull and Lambert. By the time Lambert was heard, plea before venue (PBV) proceedings had been introduced in the Magistrates' Court for either way offences, affording a defendant the opportunity to indicate a plea (permissive not mandatory); and defendants charged with indictable only offences would be sent forthwith to the Crown Court under s51 of the Crime and Disorder Act 1998.
In Lambert the Court of Appeal, which accepted it was bound by the three earlier cases, separated out the following issues:
- When were the proceedings instituted?
- If consent was not given before this date, was the PBV protected by section 25(2)?
This was the first case to approach the issue in such a way. On the first question, the Court decided that proceedings were instituted when the "charge was entered on the court register", shortly after the accused was brought to court having been charged.
On the second issue, the court decided that the appropriate consent had to be obtained before the PBV procedure took place;
- S25(2) permits the arrest, charging and remand of an accused and no more . Any hearing with a "different purpose"  to a remand would not be protected under section 25(2);
- A PBV hearing is one with a different purpose from a remand because an accused is expressly asked to indicate his plea and real consequences flow from his answer .
The Court also indicated that: "If by reason of wider reading of s25(1) as contended by the Crown, something of substance was required to happen in the proceedings, a plea before venue is for the reasons we have already set out a hearing of substance."
R v Welsh and Others  EWCA Crim 1516
The Court addressed the timing of consent in relation to indictable only offences which are sent to the Crown Court pursuant to s.51 of the Crime and Disorder Act 1998, clarifying its earlier ruling in R v CW and MM  EWCA 906. It stated that:
- Given the speed at which a charge may be entered on the register following charge (in the modern age of the computer), consent need not be obtained before the process is undertaken, as it is purely part of the administrative process which follows arrest, charging and remand in custody or on bail .
- For indictable only offences consent is required to be obtained prior to the ending hearing .
- This view is fortified by the terms of s52(5) of the Crime and Disorder Act, which allows a Magistrates; Court to adjourn proceedings should it think fit. The Court added that "if the Attorney has not had a reasonable time in which to make an informed consent, the court is likely to grant an adjournment for the minimum time necessary" .
In summary consent to prosecute must be obtained or given prior to the following events:
- Where the prosecution is begun by summons or by written charge and requisition:
- Before the information is laid (the information must state that it is laid on behalf of the DPP) or before issuing a written charge and requisition (where the process under section 29 of the Criminal Justice Act 2003 (CJA) is available). Note, however, that in summary trials, unless objection is taken by the defence before the prosecution closes its case, the magistrates should act on the presumption that the duty on their clerk to ensure that all necessary consents were obtained before the summons was issued has been discharged.
- Where the prosecution is begun by arrest and charge:
- Indictable Only Offences - before the sending hearing.
- Either Way Offences - before the plea before venue hearing.
- Summary Offences - before the plea is taken.
- If an offence is charged for the first time as a count on an indictment which has not yet been signed, consent must be obtained or given before the indictment is signed. If it is proposed to add a new count requiring consent to prosecute to an indictment which has already been signed, consent must be obtained or given before leave is sought to add the additional count.
- Where it is proposed to proceed by way of a voluntary bill, any necessary consent to prosecute must be obtained or given before the application for the bill is made.
Timing of consent - best practice in arrest and charge cases
Although s25 POA allows consent to be obtained post-charge, it should not be the usual practice of prosecutors to wait until after charge to seek or to obtain consent. The provision should only be relied on where it is necessary because, despite best efforts, it has not been possible to obtain consent pre-charge.
As a matter of good practice, consent should be obtained (if AG's consent) or given (if DPP's consent) at the earliest reasonable opportunity. In a limited range of terrorism offences connected to the affairs of a foreign State, the DPP cannot give consent without first having obtained the permission of the AG.
Where a case which involves an offence or offences that require the AG's consent is submitted pre-charge, the prosecutor must inform the AGO of the investigation and potential charges at the earliest opportunity. Thereafter it is the prosecutor's responsibility to liaise with AGO to arrange the timing for the submission of a consent application.
It is essential that the Law Officers are allowed sufficient time to consider the case. The length of time required will depend on the nature and complexity of the case and the quality of the application.
Where the suspect is on bail, a minimum of two weeks will be required in a straightforward case. For more complex matters a longer period is likely to be required and this should be discussed with the AGO.
Although efforts should always be made to obtain consent pre-charge, it is acknowledged that this will not always be feasible in custody cases. In such circumstances, consent should be obtained by:
Summary Offences: before the hearing at which the plea is taken
Either way offences: before the hearing at which the plea before venue procedure takes place
Indictable offences: before the sending hearing
If the AG's consent is required but has not been obtained by the relevant date (see above), an application for an adjournment should be made, relying on section 25(2) POA. Bail can be dealt with as part of the application, in the normal way. It should be explained to the court that the adjournment is required because, by law, the decision to grant consent to the institution of proceedings can only be made by the Attorney General or the Solicitor General and an adjournment is required so that an application can be submitted and a consent decision made. Furthermore, the case cannot proceed to plea/PBV/sending unless consent has been granted, otherwise proceedings would be declared a nullity (magistrates' court) or may be set aside (Crown Court) at a later date.
In cases involving indictable only offences, under s51 of the Crime and Disorder Act 1998 (CDA) the court must send the case to the Crown Court forthwith. However under s52(5) the court may adjourn the proceedings and remand the accused. Applications to adjourn proceedings before the case is sent to the Crown Court should therefore be made under s52(5) of the CDA. Since applications for an adjournment should be for the shortest period of time necessary, prosecutors will need to confirm beforehand with the AGO the quickest turnaround time to obtain the AG's consent. The importance of early consultation with the AGO cannot be overstated and f this has not happened before the first hearing prosecutors should ask for the case to be put back so that this can take place.
If prosecutors need to contact the AGO out of hours, including on weekends, they should e-mail the consents inbox in order to alert the AGO to the case. The MG3 should include instructions for the CPS Area to contact the AGO during office hours. The CPSD prosecutor or manager should copy the e-mail to the DCCP in the Area and to the CCP for CPSD, so that the area DCCP can inform the relevant prosecutor or advocate. The MG3 should also indicate if the defendant is remanded in custody.
In order that the court fully understands why the application to adjourn is necessary, prosecutors making any such application should:
- Refer the court to the comments of the Court in R v Welsh and Others  EWCA Crim 1516:
"If the Attorney General has not had a reasonable time in which to make an informed consent, the court is likely to grant an adjournment for the minimum time necessary...We have referred already to the indication in CW that 28 days should suffice. If the Magistrates' Court granted an adjournment of that length and sent the case to the Crown Court, we would expect the Crown Court to manage the case on the assumption that the prosecuting authority will have used the time to good effect" 
- Emphasis that the AG's consent is a statutory requirement that must be obtained to institute proceedings,
- Explain that the consent must be given personally by either the AG or the SG, as it is not a power that can be delegated to anyone else in the AGO or to the DPP or a CPS prosecutor.
- Explain why it has not been feasible to obtain the consent prior to or since arrest i.e. why the Law Officers have not had a reasonable time in which to make an informed consent.
- Provide the court with a firm time estimate of the period needed to obtain consent and explain that this is based on information provided by the AGO as a result of communication made with the AGO since the arrest. Prosecutors should be prepared to provide the reasons why the AGO requires the specific time requested in order to provide consent.
- Reassure the court that an adjournment will not cause an overall delay in the court proceedings as the CPS will not pout case preparation on hold. Further, it would be acceptable to the CPS for the time between sending and the first appearance in the Crown court to be abridged.
- In some cases prosecutors may have been unable to consult with the AGO before the first hearing: for example where cases are heard on a Saturday. In such cases if the suspect is to remain in custody, a 7 day adjournment should be requested and if the suspect is to be granted bail, a 2 week adjournment should be requested. Prosecutors should also make it clear to the court that they have been unable to consult the AGO and may need to seek a further adjournment if a consent decision cannot be obtained within the adjournment period.
- If the court indicates that it is minded to refuse the application to adjourn, a request should be made to put the case back so that the prosecutor can contact the AGO to inform them of the court's position and to discuss the possibility of a shorter timeframe in which to obtain consent. The court should then be informed whether AG consent can be obtained more quickly than had been anticipated and if so the application to adjourn should be renewed on this basis.
- If an adjournment is refused and the case is sent to the Crown Court in the first hearing at the Crown Court in the first hearing at the Crown Court (by which time a valid consent should have been obtained) prosecutors should ask the judge to use the power under s66 of the Courts Act 2993 to sit as a District Judge, to address the irregularity in getting the defendant before the Crown court. Any earlier proceedings in the lower court may then be set aside and regularised by holding a new plea before venue hearing and/or re-sending the case to the Crown Court (see below).
Timing of consent - late consent & absence of consent
If consent is not obtained before the protection afforded by s25 is exhausted (see relevant times above) the court will be acting without jurisdiction and, if convicted, the defendant will ordinarily be entitled to have his or her conviction set aside on appeal: R v Angel 52 Cr. App. R. 280, CA; R v Pearce 72 Cr. App. R. (S) 295. R v Director of Public Prosecutions ex parte Kebilene  2AC 326 per Lord Hobhouse of Woodborough at 389E-F. However note that where consent has been granted after the stage of proceedings by which it was required and permission is sought for leave to appeal out of time, the Court of appeal may not grant an extension of time if there has been no substantial injustice R v Welch and Others EWCA Crim 1516.
Any proceedings in the magistrates' court after the point at which consent should have been given will be a nullity and the prosecution has no choice other than to begin again. It may be possible to lay an identical charge (consent having been obtained or given) invite the magistrates or District Judge to dismiss the original invalid matter and revert the hearing by which consent should have been obtained. This has the advantage of reducing delay to a minimum and, should, involve no prejudice to an accused such as would give rise to an abuse of process argument. It is advisable to give prior notice to all other parties of the intention to proceed in this way, where practicable.
By contrast, proceedings in the Crown Court are not rendered a nullity by lack of consent and any orders made in the course of proceedings (such as orders relating to bail status) will remain effective until set aside by the court itself, or on appeal: R v Cain  A.C. 46. This affords the Crown Court the opportunity to regularise the position by using its power under section 66 of the Courts Act 2003. Provided a valid consent has been obtained by that point, the Crown Court Judge, exercising the jurisdiction of a District Judge, can then return to the point at which proceedings are instituted (for example the PBV in either way cases or the sending hearing in indictable only cases) and carry out all the subsequent procedures including sending to the Crown Court for trial: see R v Lambert (Goldan) at paragraph 23 and R v S  EWCA Crim 1633 at paragraphs 12 and 14.
Consent is needed for the prosecution of an attempt or conspiracy to commit an offence which itself requires consent. Check the specific legislation as to whose consent is required. Consent is also needed for offences of aiding, abetting, counselling or procuring a substantive offence which requires consent.
Conspiracy to commit a crime abroad
A conspiracy may involve the doing of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales which constitutes an offence in that other jurisdiction.
This situation is covered by section 1A of the Criminal Law Act 1977. Section 1A has four conditions, which all must be met if the section is to apply.
The wording of section 1A was amended from 1 February 2010 so that it now includes conspiracies in England and Wales to commit offences in Scotland or Northern Ireland.
By virtue of section 4(5) of the Criminal Law Act 1977, the prior consent of the Attorney General is required to prosecute offences to which section 1A applies.
In cases where parts of the offending occur in different jurisdictions, prosecutors need to determine whether section 1A is applicable.
In R v Smith (Wallace Duncan) (No.4)  EWCA Crim 631 the Court held that an English court has jurisdiction to try a substantive offence if substantial activities constituting [the] crime take place in England; or a substantial part of the crime was committed here. This approach requires the crime to have a substantial connection with this jurisdiction. It should be noted that there is no single verbal formula that must be applied: it is a question of substance, not form. Also, this approach to jurisdiction in respect of substantive offences was held to be consistent with the approach already established for conspiracy.
When deciding whether AG's consent is required, prosecutors should consider the following matters:
- Identify the substantive offence(s) that would be committed if the agreement were carried out in accordance with the intentions of the parties.
- Are those offences, considered separately, triable here? Jurisdiction is basically territorial. But there are many statutory provisions that make extra territorial offences triable here. (For instance, s.20 of the Misuse of Drugs Act 1971 makes it an offence if a person in the UK assists in or induces the commission in any place outside the UK of an offence punishable under the provisions of a corresponding law in force in that place.) Whether any such provisions apply needs to be checked in every case. In a case where no such statutory provisions apply, it may be obvious whether the substantive offence is domestic and thus triable here. If it is not obvious, then a helpful pointer is to ask whether, if the agreement were carried out in accordance with the parties intentions, a substantial part of the activities that would constitute the substantive offence would take place here: R v Smith (Wallace Duncan) (No.4).
- A substantive offence that is triable here should be tried here as that substantive offence, if at all possible.
- If a substantive offence is triable here but, by reason of the complexity of the conduct or because no substantive offence is actually committed or for any other reason it is not practicable to try it as a substantive offence here, then a charge of conspiracy may be used. The charge may be under s.1 of the Criminal Law Act 1977, or in a case of conspiracy to defraud or to corrupt public morals or public decency, at common law: Criminal Law Act 1977 s.5(1)-(3). Section 1A does not come into play because any substantive offence would be triable here.
- If the agreement, if carried out in accordance with the intentions of the parties, would result in the commission both of one or more offences triable here and one or more offences not triable here, then s.1A may be invoked. Whether the evidence relating to the substantive offence(s) not triable here should be led at the trial will depend on the facts of the case: is that evidence integral to, or in other words inseparable from, the evidence relating to the substantive offences that are triable here? If the answer is yes, then the evidence can be led, subject to usual safeguards such as s.78 of the Police and Criminal Evidence Act 1984. If the answer is no, then prosecutors may either omit the evidence, or apply for AGs consent under s.1A, to charge the conspiracy covering all the substantive offences, both those triable here and those not triable here.
If there is doubt whether the substantive offence(s) that would be committed are triable here, then prosecutors should seek the AGs consent under s.1A.
The timely application for the Attorney General's consent is critical in conspiracy cases, which are often complex and require significant time for the Attorney General's Office to review. Furthermore, prosecutors are advised to be alert to the implications of section 1A issues at an early stage of the investigation and as part of the overall prosecution strategy. Early discussions with other prosecution authorities, such as the Crown Office and Police Scotland, may be considered as part of such a strategy in the event that acts are prosecuted outside England and Wales.
Advice can be obtained from the Attorney General's Office in relation to procedure and the presenting of the application but advice cannot be given as to whether consent is actually required. For section 1A cases, a clear analysis of why consent is needed should accompany the application.
Commencing some prosecutions and other matters requires the DPP's personal consent, for example, instituting prosecutions under the Bribery Act 2010 and making applications for retrial for serious offences. See the table at Annex One Part Three for the full list. The list of agreed delegated individuals is also set out in that table.
Prosecutors may not exercise the power to grant consent set out in 1(7) of the Prosecution of Offences Act 1985 in respect of the matters listed in Annex One Part Three. They must instead seek the Director's personal consent in accordance with the relevant procedure set out in the legal guidance on the matter in question. The procedure to be followed in cases involving Bribery Act offences is set out below.
Where the consent of the DPP to institute proceedings is required, this may be given by a Crown Prosecutor by virtue of section 1(7) Prosecution of Offences Act (POA) (the 1985 Act). The decision to grant consent should be taken by applying the principles in the Code for Crown Prosecutors and CPS Legal Guidance. A Crown Prosecutor must specifically consider the case and decide whether or not proceedings should be instituted or continued.
The giving of consent follows from the fact that a case been the subject of a charging decision under the statutory charging procedure, applying the Full Code Test or Threshold Test to the evidence and public interest. R v Walker (Triston)  EWCA Crim.751. Accordingly a crown prosecutor who has decided that there is a sufficient evidence to charge, has identified the relevant offence, notified the police of their decision and required the police to charge the offender would have been given DPP consent by the notification to the police of his decision in cases where the consent of the DPP to institute proceedings is required. The MG3 template for recording a charging decision contains a section headed DPP Consent. That section is only for use in DPP Personal Consent cases. Where DPP personal consent is not under consideration that section should either be left blank or marked "not applicable". A charging decision can also be made following a review without the use of the MG3, such as following an independent review of counsel's advice or police charging decision, or where additional charges requiring the DPP's consent are added after initial charge, perhaps as additional or alternative counts on the indictment.DPP consent would have been determined by the charging decision. The prosecutor review and decision should be in writing, ideally in CMS.
Section 26 of the POA provides that any document purporting to be the signed consent of a Law Officer, the DPP, or a Crown Prosecutor " shall be admissible as a prima facie evidence without further proof. " Prior to the case of Walker prosecutors had further relied on completion of a form to give DPP consent. The form was headed CONSENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS and required a date entry and crown prosecutor signature to the content that " I consent to the prosecution of <Defendants' Name> of <Defendant's Home Address> for an offence or offences contrary to the provisions of the said Act". The court in Walker regarded this as mere surplusage in the light of DPP consent deriving from the fact of a charging decision made my the crown prosecutor.There is no need to therefore to use this form and it has been removed from Annex 2 below.
Form of Consent in cases requiring the personal consent of the DPP
Different procedures apply where the personal consent of the DPP is required. Where that personal consent is obtained or is to be obtained, the relevant section in the MG3 form, presently set out as "DPP Consent" must be completed to acknowledge that this has been obtained or is to be obtained. All other procedures required to obtain that consent for that particular offence must be followed. The Grant of DPP personal consent will be signified by completion of the form headed PERSONAL CONSENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS which states ' I consent to the prosecution of <Defendant's Name > of <Defendant's Home Address> for an offence or offences contrary to <section (s) [XX] of the [XX] Act>', a copy of which is shown at Annex 2 below. This form will be signed by the DPP or other senior prosecutor specifically authorised to provide a signature to the form.
The procedure for obtaining the DPP's personal consent for the prosecution of any offences under the Bribery Act 2010 is as follows:
- The request for consent should be sent to the prosecutor's CCP or DCCP, or the Head or Deputy Head of the Central Casework Division, for approval before it is submitted to the DPP.
- The request must confirm that both stages of the Full Code Test have been applied, and explain why those stages are satisfied in respect of each defendant for whom consent is sought.
- The request should be accompanied by a draft Consent Notice. A separate Notice is required for each defendant. A template for a Consent Notice in Bribery Act cases is at Annex 2.
- Once approved by the CCP or DCCP, or the Head or Deputy Head of the Central Casework Division, the request should be sent to the Director's private secretary.
- If the DPP decides to grant consent, she/ he will sign the Consent Notice and her/his private secretary will return the Notice to the prosecutor, who should retain the original signed Notice on file.
- For the timing of requesting and obtaining the DPP's consent, see the section on "Timing of Consent" above. Best practice is to seek consent at the earliest opportunity.
Prosecutors should ensure that they have read and understood the 'Protocol between the Attorney General and the Prosecuting Departments', particularly section 4(a) on the Attorney General's consent to prosecute.
Note: If you are prosecuting a case that requires the consent of the Attorney General, and you have a query (whether on procedure or the law), then please contact the Attorney General's Office and speak to one of the lawyers who deal with consents. The switchboard number is 020 7271 2400. The Attorney General's Office encourages early contact with them in all cases where the consent of the Attorney General may be required. Advice can be obtained regarding procedure but not on whether consent is actually required.
By virtue of section 1 Law Officers Act 1997, the Solicitor General can exercise any of the functions of the Attorney General, including giving consent to a prosecution. A case that requires the consent of the Law Officers or the DPP must first be reviewed in accordance with the Code for Crown Prosecutors and any relevant CPS Legal Guidance. You should also check the location of casework some cases for example terrorism related and incitement to hatred cases must be referred to HQ Central Casework Divisions and others to the Director's Legal Advisor, or referred to or notified to the CCP or DCCP - see Referral of Cases elsewhere in the Legal Guidance.
The prosecutor's role in applying for Attorney General's consent is:
- to review the case in accordance with the Code for Crown Prosecutors and recommend suitable charges;
- highlight public interest factors which may affect the decision to prosecute;
- to follow the procedure set out below and to complete the application and supply documents in accordance with the template at annex 3; and
- to select appropriate counsel (if required).
The Chief Crown Prosecutor (CCP), Deputy Chief Crown Prosecutor (DCCP), or Head or Deputy Head of Casework Division must:
- ensure that the case has been reviewed correctly and in accordance with the Code for Crown Prosecutors;
- check that the papers are prepared to a sufficient high standard, and to refer any deficiencies back to the prosecutor.
Bear in mind that, before giving consent, the Law Officers will have regard to the Code for Crown Prosecutors in respect of each proposed defendant on each proposed charge. In accordance with paragraph 4(a)3. of the Protocol, prosecutors only need refer cases to the AGO where it is considered that there is sufficient evidence to prosecute and that a prosecution is or may be in the public interest. There is no need to refer cases where a decision is taken not to prosecute, whether on evidential or public interest grounds.
In cases where representations are made by the defence, the judge or an interested third party that it would not be in the public interest to prosecute a particuluar suspect or defendant, these should be brought to the attention of the Law Officers when an application for consent is made. Should such representations be made after consent is granted these should be forwarded immediately to the Attorney General's Office which should be consulted on the public interest in proceeding. Similarly, any comments by the judiciary on the public interest should be forwarded to the Attorney General' Office as soon as possible.
Where there is a choice of charges, one or more of which requires the Attorney General's consent, the prosecutor may select a charge not requiring the Attorney General's consent in accordance with section 6.1 of the Code for Crown Prosecutors i.e., where those charges reflect the criminality of the conduct and would give a court adequate sentencing power. In such an instance, there is no requirement to refer the case to AGO. However, care should always be taken to ensure that charging practice is consistent between different Areas.
All applications for AG's consent should be made on the template at Annex 3.
As per the template the whole case file should not be sent as a matter of course. Original documents should not be sent to the Attorney General's Office.
It is important that the name and address of the defendant is stated accurately.
In the early stages of proceedings where consent is required as a matter of urgency, it may be that not all of the key documents will be available. In such circumstances those papers which are available must be submitted with an indication of which other documents are to follow and the time frame. The material supplied with an application for consent must always be sufficient for the Law Officers to determine whether the evidential test used by the prosecutor (Threshold Test, Evidential Stage of the Full Code Test) has been met.
If, once consent has been given, evidence is provided to the prosecutor that significantly undermines the evidential basis of the case, this should be brought to the attention of the Attorney General's Office.
Applications for consent should be sent to:
Head of Criminal Casework
Attorney General's Office
20 Victoria Street
General Enquiries: 020 7271 2492
Where possible documents should be submitted electronically to firstname.lastname@example.org
Where items are submitted by post only, an e-mail should be sent to email@example.com
A lawyer at the AGO will then review the papers before placing them before the Attorney General or Solicitor General. If there are deficiencies in the papers, the lawyer at the AGO will speak to the CCP/DCCP/Head of Casework Division and explain what the problem is and discuss how it should be rectified.
Please see the section on the timing of consent above.
If the police or prosecutor delay the application for consent this may affect the public interest consideration.
When the Attorney General gives consent for a prosecution to take place, the Attorney will maintain an interest in the progress of the case. For example, once consent has been given, prosecutors should consult with the Attorney General before deciding not to pursue an offence for which consent was granted, unless there are exceptional circumstances. The AGO should be kept informed of the case progress, consulted on key decisions and in particular, briefed as to change of circumstances which may make a continuing prosecution untenable. When the case is completed, CPS should notify the AGO of the result and sentence imposed.
It follows from the above that if consent has been given by a Law Officer and proceedings are not pursued then the AGO should be consulted before a decision is finalised. The AGO should be consulted when major changes to the charges are proposed in a case where the AG gave consent, and, also, when it is proposed to accept pleas to lesser charges than those for which consent had originally been granted or to accept pleas on a more limited basis..
Where, after a further review of the evidence, it is proposed to accept pleas to all the offences for which consent has been given but on a factual basis different to that put forward in the appilcation for consent there is no need to contact the Attorney General's Office, provided that the basis of plea complies with part 9 of the Code for Crown Prosecutors, and Part C of the Attorney General's Guidelines on the Acceptance of Pleas.
Proceedings for an offence under the customs and excise acts require the consent of the DPP. Offences under the customs and excise acts are defined in section 1(1) of CEMA, as well as CEMA itself, these include:
- the Customs and Excise Duties (General Reliefs) Act 1979;
- the Alcoholic Liquor Duties Act 1979;
- the Hydrocarbon Oil Duties Act 1979;
- the Tobacco Products Act 1979; and
- "any other enactment for the time being in force relating to customs or excise".
Section 145(1) CEMA also applies to offences under the Vaule added Tax Act 1994, and certain other revenue offences. See Annex 1 Part 2 for a full listing of the relevant offences.
Consent is therefore required in cases such a the importation of drugs, VAT and income tax fraud and the evasion of duty.
Such cases were formerly prosecuted by the Revenue and Customs prosecutions Office (RCPO) and required the consent of the Director of RCPO. Following the legal merger of the CPS with RCPO in March 2014, all proceedings for offences under the Customs and Excise Acts require DPP consent.
To ensure a consistent apporach to alll DPP consents, Crown Prosecutors should follow the same procedure for giving consent in these cases as for other DPP consents: see the section on "Procedure" above.
If a private prosecutor or another prosecuting authority wishes to start proceedings for an offence contrary to the Customs and Excise Acts, the case should be referred to the Specialist Fraud Divsion for advice.
This may occasionally arise. If consent is given, it should be accompanied by a request to the agency to supply details of the result of the case. See also Relations with Other Prosecuting Agencies elsewhere in Legal Guidance.
If a private prosecutor or another prosecuting authority wishes to start proceedings for an offence contrary to the Customs and Excise Acts, the case should be referrred to the Specialist Fraud Division for advice..
It may occasionally occur that an individual wishes to bring a private prosecution for an offence which requires DPP consent (see Private Prosecutions elsewhere in legal guidance). If consent is given, that guidance states that 'if the proposed prosecution passes the Full Code Test, the CPS will then take over the prosecution. If the proposed prosecution fails the Test, consent to prosecute will not be given.'
Note: You should refer to the specific statute identified below for details of the consent requirements
Agricultural Credits Act 1928; s.10(3)
Requires consent of the Attorney General: s.10(3)
Agriculture & Horticulture Act 1964; offences in Part III
Require consent of the Attorney General or the Secretary of State (Sec of State): s.20(3)
Agricultural Land (Removal of Surface Soil) Act 1953
Requires consent of the Director of Public Prosecutions or the Attorney General: s.3
Agricultural (Miscellaneous Provisions) Act 1954; s.9(5), s.9(6)
Require consent of the Director of Public Prosecutions or the Local Authority: s.9(7)
Animals (Scientific Procedures) Act 1986
Requires consent of the Director of Public Prosecutions: s.26(1)
Animal Welfare Act 2006; s.4, s.5, s.6(1), s.6(2), s.7, s.8 and s.9 (in respect of an offence which is alleged to have been committed in respect of an animal at a designated establishment)
Require consent of the Director of Public Prosecutions: s.26(1) of the Animals (Scientific Procedures) Act 1986
Antarctic Act 1994
Requires consent of the Secretary of State: s.28(1)(a); or the Director of Public Prosecutions: s.28(1)(b)
Anti-Terrorism, Crime & Security Act 2001; s. 47, s. 50, s.113
Require consent of the Attorney General: s.55 and s.113B. Note: offences under s.53 (development of nuclear weapons etc., outside UK and movements in and out of UK) are subject to the consent of the Director Revenue and Customs Prosecutions or the Commissioners of Revenue and Customs.
Armed Forces Act 2006
Requires consent of the Attorney General: s.61(2)
Atomic Energy Act 1946; s.11
Requires consent of the Director of Public Prosecutions: s.14(4)
Auctions (Bidding Agreement) Act 1927; s.1
Requires consent of the Attorney General: s.1(3)
Aviation Security Act 1982; s.1, s.2, s.3, s.5 and s.6
Require consent of the Attorney General: s.8(1)(a)
Aviation and Maritime Security Act 1990; s.1 and Part II
Require consent of the Attorney General: s.1(7) and s.16(1)
Bail Act 1976; s.9(1)
Requires consent of the Director of Public Prosecutions: s.9(5)
Biological Weapons Act 1974; s.1
Requires consent of the Attorney General: s.2(1)(a)
Bribery Act 2010
Requires consent of the Director of Public Prosecutions: s.10(1)(a). Note: The Director of Public Prosecutions must exercise personally any function of giving consent. See legal guidance on Procedure for obtaining DDP personal consent in Bribery Act 2010 prosecutions.
Broadcasting Act 1990 and 1996; publishing or having for gain an obscene article as defined by s.2 of the Obscene Publications Act 1959
Requires consent of the director of public Prosecutions: Schedule 15, paragraphs 4(1) & 4(2)
Building Act 1984
Requires consent of the Attorney General: s.113
Proceedings in respect of an offence in this Act shall not, without the written consent of the Attorney General, be taken by any person other than:
(a) a part aggrieved; or
(b) a local authority or body whose function it is to enforce the provision in question
Building Societies Act 1986
Requires consent of the Director of Public Prosecutions: s.96(5); not required if proceedings are brought by the Building Society Commission.
Care Standards Act 2000; offences under Part II or under regulations made under Part II
Requires consent of the Attorney General: proceedings shall not be taken by any person other than Her Majesty's Chief Inspector of Education, Children's Services and Skills (CIESS) or the Welsh Ministers, without the consent f the Attorney General; s.29(1)
Charities Act 2011; s.41, s.60, s.77(1), s.173, s.183(1)
Requires consent of the Director of Public Prosecutions: s.345
Chemical Weapons Act 1996,
Requires consent of the Attorney General in respect of offences under s.2 and s.11: s.31(1)(a): Other offences require the consent of the Secretary of State: s.31(2)
Child Abduction Act 1984; Part I
Requires consent of the Director of Public Prosecutions: s.4(2)
Section.5 - No prosecution without consent of the Director of public ProsecutionsPP for the offence of kidnapping if it was committed:
(a) against a child under the age of sixteen; and
(b) by a person connected with the child
Children & Young Persons (Harmful Publications) Act 1955; s.2(1)
Requires consent of the Attorney General: s.2(2)
Civil Aviation Act 1982; s.44, s.45, s.83 and s.92
Require consent of the Secretary of State or the Director of Public Prosecutions: s.44(11), s.45(7)(a) or s.83(3)(a); Director of Public Prosecutions only for offences under s.92(2)(a). Note: Where the offence is one contrary to the Air Navigation Order 2009, s.92(2)(a) is disapplied, and the Director of Public Prosecutions consent is not required.
Coal Industry Act 1994; s.34
Requires consent of the Director of Public Prosecutions or the Coal Authority: s.34(7)
Companies Act 1989; s.85 and s.86
Require consent of the Director of Public Prosecutions or the Secretary of State: s.89
Consumer Protection Act 1987; s.12
Requires consent of the Director of Public Prosecutions or the Secretary of State: s.11(3)(c)
Contempt of Court Act 1981; s.7 and s.8
Require consent of the Attorney General or Court: s.7 and s.8(3)
Control of Pollution Act 1974; s.6
Requires consent of the Director of Public Prosecutions or the Environment Agency: s.6(3)
Coroners and Justice Act 2009; s.62
Requires consent of the Director of public Prosecutions: s.62(9)
Corporate Manslaughter and Corporate Homicide Act 2007; s.1
Requires consent of the Director of Public Prosecutions: s.17(a)
Criminal Attempts Act 1981; where substantive offence requires consent
Requires consent of the Attorney General or the Director of Public Prosecutions, as appropriate to the substantive offence: s.2(2)
Criminal Justice Act 1987; s.11A
Requires consent of the Attorney General: s.11A(3)
Criminal Justice Act 1988; s.134 and s.160(4)
Require consent of the Attorney General for offences under s.134: s.135(a); Director of Public Prosecutions for offences under s.160: s.160(4)
Criminal Justice (International Co-operation) Act 1990; offences under Part II or Schedule 3
Require consent of the Director of Public Prosecutions or Director of Revenue and Customs Prosecutions: s.21(2)(a)
Criminal Justice Act 1993; insider dealing offences
Require consent of the Director of Public Prosecutions or the Secretary of State: s.61(2)
Criminal Justice and Immigration Act 2008; s.63(1)
Requires consent of the Director of Public Prosecutions; s.63(10)
Criminal Law Act 1967; s.4(1) and s.5
Require consent of the Director of Public Prosecutions: s.4(4)
Criminal Law Act 1977; s.1, s.1A and s.9
s.4(1): provides that the Director of Public Prosecutions' consent is required for summary only proceedings.
s.4(2): provides that where the substantive offence in question would require the consent of the Attorney General or the Director of Public Prosecutions, then on a charge of conspiracy such consent is also required,
s.4(5): no proceedings for an offence triable by virtue of section 1A may be instituted except by or with the consent of the Attorney General.
s.9(6): provides that the proceedings for the offence of trespassing on premises of foreign missions created by s.9 require the consent of the Attorney General.
Customs & Excise Management Act 1979
See Part 2, below
Data Protection Act 1998; all offences
Require consent from the Data Commissioner or the Director of Public Prosecutions: s.60
Electricity Act 1989; s.29 and s.59
Require consent from the Director of public Prosecutions: s.29(4); s.59(3): Director of Public Prosecutions or Secretary of State: s.59(3)
Emergency Laws (Re-enactments and Repeals) Act 1964; s.1 and s.2
Require consent from the Director of Public Prosecutions or the Treasury: s.14(1)
Energy Act 1976
Requires consent of the Secretary of State or the Director of Public Prosecutions: Scedule 2, paragraph s.6(1). Local weights and measures authority, Secretary of State or Director of public Prosecutions: Schedule 2 paragraph 6(2)
Energy Act 2004; s.86 - an offence alleged to have been committed on, under or above (a) a renewable energy installation situated in waters to which s.85 applies; or (b) waters to which s.85 applies that, at the time of the alleged offence, were within a safety zone.
Requires consent of the Director of Public Prosecutions: s.86(3), however, subsection (3) does not require the consent of the DPP where the proceedings in question are proceedings for which consent of the Attorney General is required apart from this section: s.86(4)
Energy Act 2004; offences in Chapter Three and s.131C
Requires consent of the Director of Public Prosecutions, Secretary of State or person authorised by the Secretary of State: s.113(2) and s.131C(5)
Energy Act 2008; offences under Chapter Three or regulations under s.27 or proceeding for a relevant offence (an offence under Chapter Two or regulations under s.13) alleged to have been committed in a controlled place
Requires consent of the Director of Public Prosecutions, Secretary of State or person authorised by the Secretary of State: s.28(3) and s.14(3)
Environmental Protection Act 1990, s.118
Requires consent of the Director of Public Prosecutions or Secretary of State: s.118(10)
Explosive Substances Act 1883 (all offences)
Requires consent of the Attorney General: s.7(1)
Finance Act 1989, s.182
Requires consent of the Director of Public Prosecutions
Financial Services and Markets Act 2000
Requires consent of the Secretary of State, FSA or Director of Public Prosecutions: s.401
Firearms Act 1968, s.22(3)
Refers to power to extend time for prosecution of any summary offences except under s.22(3) or an air weapon offence; consent of the Director or Public Prosecutions needed to extend time: s.51(4)
Fraudulent Mediums Act 1951, s.1
Requires consent of the Director of Public Prosecutions: s.1(4)
Gas Act 1965, Part II
Requires consent of the Director of Public Prosecutions: s.21(2) and s.43(2) Gas Act 1986
Gas Act 1986, s. 43(1)
Requires consent of the Director of Public Prosecutions or Secretary of State: s.43(2)
Geneva Conventions Act 1957, s.1 and s.6
Requires consent of the Attorney General: s.1A(3) or the Director of Public Prosecutions: s.6(7)
Genocide Act 1969, s.1
Requires consent of the Attorney General: s.1(3)
Health & Safety at Work Act 1974, Part I
Requires consent of the Director of Public Prosecutions or Health and Safety Inspector: s.38
Highways Act 1980, s.167, s.177 and schedule 22
Require consent of the Attorney General: s.312(1), unless proceedings taken the person aggrieved, or a highway authority or council having an interest in the enforcement of the provision or byelaws in question; or by a constable.
Attorney General's consent must be obtained if:
1) the injury alleged to have caused the death was sustained more than three years before the death occurred; or
2) the accused has previously been convicted of an offence committed in circumstances alleged to be connected to the death.
N.B. These cases require the approval of the Director's Legal Advisor prior to the obtaining of Attorney General consent.
Horticultural Produce Act 1986
Requires consent of the Attorney General or Minister of Agriculture, Fisheries and Food: s.5(c)
Housing Act 1985, s.338(1)(a)(b)
Requires consent of the Attorney General (if prosecution against Local Authority): s.339(2)
Housing Association Act 1996; s.31, s.33(5), s.35(3), s.37(4) and s.38(1)
Require consent of the Director of Public Prosecutions or Welsh Ministers: s.31(3), s.33(5), s.35(3), s.37(4) and s.38(3)
Human Fertilisation & Embryology Act 1990, s.41
Requires consent of the Director of Public Prosecutions: s.42(a)
Human Organ Transplant Act 1989, s.1 and s.2
Require consent of the Director of Public Prosecutions: s.2(3)
Human Tissue Act 2004, s.5
Requires consent of the Director of Public Prosecutions: s.50
Human Reproductive Cloning Act 2001, s.1(1)
Requires consent of the Director of Public Prosecutions: s.1(3)
Incitement to Disaffection Act 1934, all offences
Require consent of the Director of Public Prosecutions: s.3(2)
Income & Corporation Taxes Act 1988, s.765
Requires consent of the Attorney General: s.766(4)
Insolvency Act 1986; offences in Part VIIA and offences in Part IX Chapter VI
Require consent of the Director of Public Prosecutions or Secretary of State: s.251T and s.350(5)
International Criminal Court Act 2001 s53(3)
Requires the consent of the Attorney General: s53(3)
Internationally Protected Persons Act 1978, s.2(1)
Requires consent of the Attorney General: s.2(1)(b)
Iraq (United Nations Sanctions) Order 2003 S.I. 2003/1519
Requires consent of the Attorney General: Article 20(15)
Judicial Proceedings (Regulation of Reports) Act 1926, all offences
Require consent of the Attorney General: s.1(3)
Landmines Act 1998, s.2
Requires consent of the Attorney General: s.20
Law of Property Act 1925, s.183
Requires consent of the Attorney General: s.183(4)
Law Reform (Year and a Day Rule) Act 1996, s.2(2)
Requires consent of the Attorney General: s.2(4)
Legal Aid Act 1988, s.38
Requires consent of the Attorney General: s.38(5)
Local Government Act 1972, s.94(1)
Requires consent of the Director of Public Prosecutions: s.94(3)
Local Government & Housing Act 1989, s.19(2)
Requires consent of the Director of Public Prosecutions: s.19(3)
Localism Act 2011, s.34
Requires consent of the Director of Public Prosecutions: s.34(5) - an offence may not be instituted except by or on behalf of the Director of Public Prosecutions
Lotteries & Amusements Act 1976, s.2(1)(c)(iii)
Requires consent of the Director of Public Prosecutions: s.3
Magistrates' Courts Act 1980, s.71(4)
Requires consent of the Attorney General: s.8(6) & s.71(4)
Marine Insurance (Gambling Policies) Act 1909, s.1
Requires consent of the Attorney General: s.1(3)
Mental Health Act 1983, s.127(1) and s.139(2)
s.127(1) requires consent of the Director of Public Prosecutions: s.127(4)
s.139(2): requires consent of the Director of Public Prosecutions
Merchant Shipping (Liner Conferences) Act 1982, s.10(2)
Requires consent of the Director of Public Prosecutions: s.10(3)
Mines & Quarries Act 1954, s.151(1)
Requires consent of the Attorney General: s.164
Mines and Quarries (Tips) Act 1969, Part II offences
Require consent of the Director of Public Prosecutions or Local Authority: s.27(1)
Money Laundering Regulations 2003
Requires consent of the Commissioners of Revenue and Customs: regulation 23(1)
National Health Service Act 1977, s.124 and schedule 10, paragraph 1(7)
s.124(4) & (6) requires consent of the Attorney General or Area (or District) Health Authority concerned
Paragraph 1(7) requires consent of the Director of Public Prosecutions or Medical Practises Committee
Newspapers, Printers & Reading Rooms Repeal Act 1869, Schedule 11 paragraph 1
Requires consent of the Attorney General: s.4
Nuclear Installations Act 1965, s.2(2) and s.19(5)
Requires consent of the Director of Public Prosecutions or relevant Minister: s.25(3)
Nuclear Materials (Offences) Act 1983, s.1 and s.2
Require consent of the Attorney General: s.3(1)(a)
Obscene Publications Act 1959, s.2
Requires consent of the Director of Public Prosecutions: s.2(3A)
Official Secrets Act 1911, all offences
Requires consent of the Attorney General: s.8
Official Secrets Act 1920, all offences
Requires consent of the Attorney General: s.8
Official Secrets Act 1989, all offences
Require consent of the Attorney General, except for offences under s. 4(2) for which the Director of Public Prosecutions' consent is sufficient: s.9(2)
Petroleum Act 1998; s.5B
Requires consent of the Director of Public Prosecutions or Director of Revenue and Customs Prosecution: s.5C
Pipelines Act 1962; s.10H
Requires consent of the Director of Public Prosecutions or the Secretary of State or person authorised by the Secretary of State: s.10H
Prevention of Oil Pollution Act 1971
Responsibilities vary between the Attorney General, the Director of Public Prosecutions and the Secretary of State: see s.19(1)(a), s.19(1)(c) and s.19(7): see also s.2(2)(b)
Prison Security Act 1992, s.1(1)
Requires consent of the Director of Public Prosecutions: s.1(5)
Protection of Children Act 1978, s.1(1)
Requires consent of the Director of Public Prosecutions: s.1(3)
Protection of Military Remains Act 1986, s.2(2)
Requires consent of the Director of Public Prosecutions: s.3(3)
Protection of Trading Interests Act 1980, s.1(2), s.1(3) and s.2(1)
Require consent of the Attorney General or Secretary of State: s.3(3)
Public Bodies Corrupt Practices Act 1889, s.1
Requires consent of the Attorney General: s.4(1)
Public Health Act 1936, all offences
Attorney General's consent required, unless proceedings are instituted by a party aggrieved, a Local Authority or a body whose function is to enforce the provision in question: s.298
Public Health (Control of Diseases) Act 1984, all offences
Attorney General consent required, as with the 1936 Act, above: s.64(1)
Public Order Act 1936, s.2
Requires consent of the Attorney General: s.2(2)
Public Order Act 1986, s.1, and offences under Part IIIA, as amended
Require consent of the Director of Public Prosecutions as to offences under s.1: s.7(1); Requires consent of the Attorney General as to Part IIIA offences: s.27(1) and s.29L
Public Passenger Vehicles Act 1981, Part II and Part III
See s.69(1) as to when the consent of the Director of Public Prosecutions is required; proceedings may also be instituted by Traffic Commissioner, a Chief Officer of Police or County Council
Radioactive Substances Act 1993, all offences
Require consent of the Director of Public Prosecutions or Secretary of State or Chief Inspector: s.38(1)(c)
Railways Act 1993, s.118, s.119, s.120(4), s.121(4) and s.146
Require consent of the Director of Public Prosecutions or the Secretary of State: s.118(8), s.119(10), s.120(5), s.121(6) and s.146(2)
Regulation of Investigatory Powers Act 2000, s.1
Requires consent of the Director of Public Prosecutions: s.1(8)
Rehabilitation of Offenders Act 1974, s.9(2)
Requires consent of the Director of Public Prosecutions: s.9(8)
Reservoirs Act 1975, s.22
Requires consent of the Director of Public Prosecutions, Sec retary of State, Local Authority, London Borough Council or District Council: s.22(6)
Rivers (Prevention of Pollution) 1961, s.12
Requires consent of the Secretary of State: s.12(a)
Road Traffic Act 1988, s.112 and s.114
Require consent of the Secretary of State
Serious Crime Act 2007, s.44, s.45 and s.46
Require consent of the Attorney General: s.53 (and see Schedule 4 of the Act)
Serious Organised Crime and Police Act 2005, s.128
Requires consent of the Attorney General: s.128(6)
Sexual Offences Act 1956, s.10, s.11, s.12 and s.37
Require consent of the Director of Public Prosecutions: 2nd Schedule, Part 1, serials 14 & 15
In relation to the s.12 offence, s.8 of the Sexual Offences Act 1967 requires Director of Public Prosecution consent for proceedings against any male for offences of buggery or gross indecency with another male; or for aiding or abetting etc those offences where either male was under the age of sixteen.
Sexual Offences (Amendment) Act 1992, s.5
Requires consent of the Director of Attorney General: s5(4)
Solicitors Act 1974, s.42(1)
Requires consent of the Attorney General, the Director of Public Prosecutions or the Law Society: s.42(2)
Suicide Act 1961, s.2(1)
Requires consent of the Director of Public Prosecutions: s.2(4)
Suppression of Terrorism Act 1978, s.4
Requires consent of the Attorney General: s.4(4)(b)
Surrogacy Arrangements Act 1985, all offences
Requires consent of the Director of Public Prosecutions: s.4(2)(a)
Taking of Hostages Act 1982, all offences
Require consent of the Attorney General: s.2(1)(a)
Terrorism Act 2000, s117: offences other than under s.36, s.51, paragraph 18 of schedule 7, paragraph 12 of schedule 12 and schedule 13
Require consent of the Director of Public Prosecutions: s.117. But where it appears to the Director of Public Prosecutions that the offence has been committed for a purpose wholly or partly connected with the affairs of a foreign country, the Director of Public Prosecutions shall not give consent without the prior permission of the Attorney General
Terrorism Act 2006, Part I
Requires consent of the Director of Public Prosecutions: s.19; but same proviso applies as with Terrorism Act 2000 (above).
Theatres Act 1968, s.2 and s. 6
Require consent of the Attorney General: s. 8
Theft Act 1968, s.30 (theft from spouse)
Requires consent of the Director of Public Prosecutions: s.30(4)
Trading with the Enemy Act 1939, s.1
Requires consent of the Director of Public Prosecutions: s.1(4)
Transport Act 1985, s.74(7)
Requires consent of the Director of Public Prosecutions: s.74(8)
Transport and Works Act 1992, Part II
Requires consent of the Director of Public Prosecutions or the Secretary of State: s.58
Transport (London) Act 1969, s.23(2)
s.23(5) proceedings for an offence under s.23(2) shall not be instituted except by or on behalf of the Director of Public Prosecutions, or by or with the authority of the Executive or commissioner of police
Unsolicited Goods & Services Act 1971, s.4(1)
Requires consent of the Director of Public Prosecutions: s.4(3)
War Crimes Act 1991, s.1(1)
Requires consent of the Attorney General: s.1(3)
Water Act 1989, s.175
Requires consent of the Director of Public Prosecutions, Secretary of State, or the Minister: s.175(2)
Water Industry Act 1991, s.207(1), s.211
Requires consent of the Secretary of State or Director of Public Prosecutions: s.207(2)
Requires the consent of the Attorney General: s.211 proceedings in respect of an offence created by or under any of the relevant sewerage provisions shall not, without the written consent of the Attorney General, be taken by any person other than (a) a party aggrieved; (b) a sewerage undertaker; or (c) a body whose function it is to enforce the provisions in question.
Wildlife and Countryside Act 1981, s.28(1)(a) to (c)
Require consent of the Director of Public Prosecutions or Nature Conservancy Council: s.28(10)
Wireless Telegraphy Act 2006; offences in Part 5
Requires consent of the Director of Public Prosecutions or OFCOM or Secretart of State: s.93(3)
s. 145 Customs & Excise Management Act (CEMA) 1979 - no proceedings for an offence under the customs and excise Acts shall be instituted except by or with the consent of the DPP. These were formally consents of the Director of Revenue and Customs Prosecutions.
1. Under CEMA 1979 criminal offences in relation to:
s. 20A - Approved Wharves
s. 21 - Control of movement of aircraft, etc into and out of the United Kingdom
s. 22A Examination stations
s. 23 - the control of movement of hovercraft
s. 24 - the control and movement of goods by pipe-line
s. 25A - Transit sheds
s. 26 - the power to regulate movements of goods into and out of Northern Ireland by land
s.27 Officers' powers of boarding
s. 30 Control of movement of uncleared goods within or between port or airport and other places
s. 31 - the control and movement of goods to and from inland clearance depots
s. 33 Power to inspect aircraft, aerodromes, records, etc
s. 34 Power to prevent flight of aircraft
s. 35 Report inwards
s. 36 Provisions as to Her Majesty's ships, etc
s.41 Failure to comply with provisions as to entry
s. 42 - the power to regulate unloading, removal, etc of imported goods
s. 50 - offence for the improper importation of goods
s. 53 - the Entry (customs paperwork) outwards of goods
s.54 Acceptance of incomplete entry
s.55 Correction and cancellation of entry
s.56 Failure to export
s.57 Delivery of entry by owner of exporting ship etc
s.58B Provisions supplementary to ss 58 and 58A
s.58E Authentication of Community customs documents
s.59 Restrictions on putting export goods alongside for loading
s. 60 Additional restrictions as to certain export goods
s.61 Provisions as to stores
s.62 Information, documentation, etc as to export goods
s. 63 - the 'Entry' outwards of exporting ships
s.64 - clearance outwards of ships and aircraft
s.65 Power to refuse or cancel clearance of ship or aircraft
s. 66 - power to make regulations as to exportation, etc
s. 67 - Offences in relation to exportation of goods
s. 68 - offences in relation to exportation of prohibited or restricted goods
s. 68A - Offences in relation to agricultural levies (inserted by the Finance Act 1982)
s.70 Coasting trade--exceptional provisions
s.71 Clearance of coasting ship and transire (summary offence at s.71(4))
s.72 Additional powers of officers in relation to coasting ships (summary offence at s.72(3))
s. 73 - Power to make regulations as to carriage of goods coastwise, etc
s. 74 - Offences in connection with carriage of goods coastwise
s.77 Information in relation to goods imported or exported
s.77A Information powers
s.77B Information powers relating to firearms
s.77C Information powers relating to goods subject to certain transit arrangements
s.78 Customs and excise control of persons entering or leaving the United Kingdom
s.80 Power to require information or production of documents where origin of goods exported is evidenced under [EU] law or practice
s.83 Penalty for removing seals, etc
s.85 Penalty for interfering with revenue vessels, etc
s.87 Penalty for offering goods for sale as smuggled goods
s.91 Ships failing to bring to
s. 94 Deficiency in warehoused goods
s. 96 Deficiency in certain goods moved by pipe-line
s. 100 - General offences relating to warehouses and warehoused goods
s.102 Payment for excise licences by cheque
s.125 Valuation of goods for purpose of ad valorem duties
s. 129 - Power to remit or repay duty on denatured goods
s. 133 General provisions as to claims for drawback
s. 136 - Offences in connection with claim for drawbacks allowances etc
s.141 Forfeiture of ships, etc used in connection with goods liable to forfeiture
s.158 Power to require provision of facilities
s. 159 - the power to examine and take account of goods
s.163 Power to search vehicles or vessels
s. 167 - making false or untrue declarations
s. 168 - Counterfeiting documents
s. 170 - Penalty for fraudulent evasion of duty or a prohibition or restriction
s. 170 A - Offence of Handling goods subject to unpaid excise duty (inserted by Finance (No 2) Act 1992)
s. 170B - Offence of taking preparatory steps for evasion of excise duty (inserted by Finance (No 2) Act 1992)
2. Offences under the Biological Weapons Act 1974:
s.1B - this Act prohibits the development, production, acquisition and possession of certain biological agents and toxins and of biological weapons. The DRCP can only institute proceedings for an offence if it concerns the development, production outside the UK of anything referred to in Section 1 or its movement into our out of any country.
Proceedings under section 1 can only be instituted with consent of the AG
3. Offences under the Hydrocarbon Oils Duties Act 1979:
s. 13(3) - supplying / using rebated fuel for a road vehicle
s. 13(4) - taking rebated fuel into a road vehicle
s. 14D(5) - Penalties for misuse of rebated biodiesel or bioblend
4. Offences under the Customs and Excise Duties (General Reliefs) Act 1979:
s. 13C - where relieved goods are used in breach of condition (inserted by Finance Act 1989)
s.15 False statements etc in connection with reliefs from customs duties
5. Offences under the Betting and Gaming Duties Act 1981:
s. 12(2) and para 13(3) of Schedule 1 - fraudulent evasion of GBD
s. 12(2) and para 13(3) of Schedule 1 - false documents re GBD
S 12(2) and para 14 of Schedule 1 - carrying on a pool betting business without a permit
6. Offences under Finance Act 1994, Insurance Premium Tax:
s. 9 - knowingly concerned in, or in the taking steps with a view to the fraudulent evasion of tax
7. Offences under Finance Act 1994, Air Passenger Duty:
s. 41 - knowingly concerned in the fraudulent evasion of duty or taking steps with a view to such fraudulent evasion
8. Offences created under the Value Added Tax Act 1994 in relation:
s. 65 - inaccuracies in EC sales statements or in statements (inserted by the Finance (No 2) Act 1992)
s. 67 - failure to notify and unauthorized issue of invoices (inserted by Finance Act 1985)
s. 69 - breaches of regulatory provisions
s. 69A - breach of record-keeping requirements etc in relation to transactions in gold (inserted by the Finance Act 2000)
s. 69B - breaches of record-keeping requirements imposed by directions (inserted by Finance Act 2006)
s. 72 - the fraudulent evasion of VAT or the taking of steps to do this, failing to give security for VAT or providing false documents for VAT purposes
9. Offences under Drug Trafficking Act 1994:
s60 - Revenue and Customs prosecutions [proceedings for a specified offence may be instituted [by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs ("the Commissioners")].
10. Offences under Finance Act 1996, Landfill Tax:
s. 15 - knowingly concerned in or taking steps with a view to the fraudulent evasion of tax
11. Offences under the Chemical Weapons Act 1996:
S30A - this Act promotes the control of chemical weapons and of certain toxic chemicals and precursors; and for connected purposes. Proceedings for a chemical weapons offence may be instituted [by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs] if it appears [to the Director or to the Commissioners] that the offence has involved:
a. the development or production outside the United Kingdom of a chemical weapon;
b. the movement of a chemical weapon into or out of any country or territory;
c. any proposal or attempt to do anything falling within paragraph (a) or (b).
In accordance with section 31, proceedings for an offence under sections 2 and 11 cannot be instituted otherwise than with the consent of the AG
12. Offences under Landmines Act 1998:
Section 21 - permits the prosecution of an offence under section 2 by the DRCP, where there is an importation element to the offence. Otherwise in accordance with section 20, the AG is required to consent to a prosecution.
13. Offences under the Finance Act 2000, Climate Change Levy:
s. 92 - knowingly concerned in, or in the taking steps with a view to the fraudulent evasion of any levy with which a person is charged
s. 93 - with requisite intent and for purposes connected with the levy a person produces or provides any document which is false in a material particular or makes use of such a document
s. 94 - Conduct involving evasion or misstatement
s.95 - a person being a party to any agreement or arrangement with the belief that the levy chargeable on the supply will be evaded
14. Offences under Finance Act 2001, Aggregate Levy:
s. 1 - knowingly concerned in the fraudulent evasion of any aggregates levy
s. 2 - with requisite intent and for purposes connected with aggregates levy a person produces or provides any document which is false in a material particular
s. 3 - Conduct involving evasion or misstatement
s. 4 - a person being a party to any agreement or arrangement with the belief that the aggregate levy chargeable on the aggregate in question will be evaded
15. Offences under Anti Terrorism, Crime Security Act 2001
S53 - Customs prosecution for nuclear weapons offence
16. Offences under Proceeds of Crime Act 2002
S451 - proceedings for specified offences [Revenue and Customs Prosecutions]
17. Offences under Dealing in Cultural Objects (Offences) Act 2003:
S4 - this Act provides for an offence of acquiring, disposing of, importing or exporting tainted cultural objects, or agreeing or arranging to do so; and for connected purposes. Proceedings for an offence relating to the dealing in a tainted cultural object may be instituted [by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs] [if it appears to the Director or to the Commissioners] that the offence has involved the importation or exportation of such an object.
In accordance with section 2 an offence relates to the dealing in a tainted cultural object if it is:
(a) an offence under section 1, or
(b) an offence of inciting the commission of, or attempting or conspiring to commit, such an offence.
18. Criminal offences created under the CRCA 2005:
s. 19 - wrongful disclosure of HMRC information relating to a person's identity
s. 21 - further wrongful disclosure beyond that to a prosecuting authority
s. 29 - offences relating to breaches of confidentiality arising out of the supply of information to Inspectors of Constabulary and the Independent Police Complaints Commission
s. 30 - pretending to be an officer or commissioner of HMRC
s. 31 - obstructing an officer of HMRC
s. 32 - assaulting an officer of HMRC
s. 40 - disclosure by RCPO of confidential information
19. Offences under the Alcoholic Liquor Duties Act 1979
s.17 - offences in connection with removal of spirits from distillery etc
s.25 - penalty for unlawful manufacture of spirits etc
s.80 - prohibition of use of [denatured alcohol] etc as a beverage or medicine
20. Offences under the Tobacco Products Duty Act 1979
s.8G - possession and sale of unmarked tobacco
s.8H - use of premises for sale
21. Money Laundering Regulations 2007
Regulations 45 and 47 - failing to comply with a requirement (regulation 46 states that proceedings require the consent of the DRCP).
|Power or Function assigned specifically to the DPP||Originating statute||Agreed delegated individual(s)|
Sections 10(1) and 10(4) Bribery Act 2010 ('the DPP ... must exercise personally any function ... of giving consent')
Director's Legal Advisor in the first instance, Heads of Central Casework Divisions in the event that neither the DPP nor the Director's Legal Advisor is available
Double jeopardy - application for retrial for serious offences
Section 76(3) Criminal Justice Act 2003 ('... a prosecutor may only make an application with the written consent of the Director of Public Prosecutions')
Director's Legal Advisor
Section 71 witness immunity notice
Section 71(4)(a) Serious Organised Crime and Police Act 2005 - power given to a 'specified prosecutor' including the Director of Public Prosecutions
Director's Legal Advisor (in the case of CPS Areas), Heads of Central Casework Divisions, or nominated SCS prosecutor
Section 72 restricted use undertaking
Sections 72(1) and (7) Serious Organised Crime and Police Act 2005 refer to 'a specified prosecutor', given same meaning as under section 71
Director's Legal Advisor (in the case of CPS Areas), Heads of Central Casework Divisions, or nominated SCS prosecutor
Sections 73 and 74 sentence discount agreements
Sections 73(10) and 74(3)(b) of Serious Organised Crime and Police Act 2005
Director's Legal Advisor (in the case of CPS Areas), Heads of Central Casework Divisions, or nominated SCS prosecutor
Investigatory Powers (power to issue Disclosure Notice, apply for Search Warrant etc)
Section 60(1) Serious Organised Crime and Police Act 2005 confers various powers on the DPP in relation to sections 61-69
Chief Crown Prosecutors or Prosecutors of Level E and above
Serious Crime Prevention Orders (Crown Court)
Section 8 (a)(i) Serious Crime Act 2007 (Orders on Conviction in the Crown Court) limits the class of applicants who can apply for a SCPO, and includes the DPP
Director's Legal Advisor, Chief Executive (if prosecutor), Director of Legal Services (if prosecutor), Heads of Central Casework Divisions, Chief Crown Prosecutors, Deputy Chief Crown Prosecutors
Serious Crime Prevention Orders (High Court)
Section 8 (a)(i) Serious Crime Act 2007 (High Court Orders) limits the class of applicants who can apply for a SCPO, and includes the DPP
Head of Organised Crime Division and/or Head of Central Fraud Group (Head of any other Central Casework Division in event of unavailability)
Proceeds of Crime Act 2002
Part 5, section 240(1)(a) enables '... the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct'. The DPP has the authority as conferred by section 316 to instigate civil recovery proceedings as outlined in section 243
Chief Executive (if prosecutor), Director of Legal Services (if prosecutor), Head of Organised Crime Division
Proceeds of Crime Act 2002
Part 8, section 345 (production order), section 352 (search and seizure order), section 357 (disclosure order), section 363 (customer information order), section 370 (account monitoring order).
Chief Executive (if prosecutor), Director of Legal Services (if prosecutor), Head of Organised Crime Division
Police Reform and Social esponsibility Act 2011
Section 153(1) - restriction on the use of arrest warrants in private prosecutions
Head of Special Crime and Counter Terrorism Division and in his/her absence, Deputy Head of Special Crime and Counter Terrorism Division
Matters which present a potential conflict of interest for the Director of Public Prosecutions as postholder (for example, as a result of previous involvement in a matter prior to taking up the post of DPP)
Director's Legal Advisor for legal issues. Chief Executive/Director of Legal Services for business issues
Example of Consent Notices
Personal consent of the Director of Public Prosecutions
Section 10 Bribery Act 2010
I consent to the prosecution of <Defendant Name>
of <Defendant Home Address>
for an offence or offences contraty to section(s) [XX] of the Bribery Act 2010.
Dated the [date] day of [month] [year]
The Director of Public Prosecutions.
All applications for AG Consent must be submitted on this Template.