Consents to Prosecute
- Principle
- Guidance
- Procedure
- Form of Consent in Cases requiring the Prior Consent of the DPP
- 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 other Prosecuting Agency
- Annex 1
- Annex 2: Example Consent Notices
Principle
Some offences cannot be instituted without the prior consent to prosecute of either the Attorney General (AG) or the Director of Public Prosecutions (DPP). In a limited range of terrorist offences connected to the affairs of a foreign State, the DPP cannot give consent without first having obtained the permission of the AG.
It is important to identify cases that require consent to prosecute at the pre-charge or initial review stage. A schedule of offences requiring consent is attached at Annex 1. 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.
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.
Guidance
Timing of Consent
As a matter of good practice, consent should be obtained (if AG's consent) or given (if DPP's) at the earliest reasonable opportunity. If the case is submitted for pre-charge advice and a decision is made to prosecute, consent should be obtained or given at that stage.
If it is not possible to obtain the relevant consent before charge, i.e. because the suspect presents a bail risk, then the fact that consent is required should be noted on the MG3 and obtained as soon as reasonably practicable after charge. The case itself cannot proceed to the point where the defendant enters a plea, but initial remand hearings are permissible before consent has been obtained by virtue of Section 25(2) of the Prosecution of Offences Act 1985. This provides that the requirement for the prior consent of the Law Officers or DPP does not prevent the arrest or remand of a suspect charged with an offence. The effect of section 25 (2) is to allow certain procedural steps to take place prior to the obtaining of consent. These steps are:
- the arrest without warrant of the suspect; or
- the issue or execution of the warrant for arrest, of a person for any offence; or
- a remand in custody or on bail for the person charged with the offence.
The third power could be used, for example, where an accused who is remanded in custody wants to enter a guilty plea to a summary only or either way offence on the first appearance. If the AG's consent to prosecute is required but not yet been obtained, an application for an adjournment could be made, relying on section 25(2). Bail could be dealt with as part of that application, in the normal way.
You 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).
The legal requirement is for consent to have been obtained or given before the prosecution is "instituted". Case law establishes that proceedings are instituted for the purposes of the consent provisions when the accused comes to court 'to answer the charge', a stage which can now be taken to be beyond the formalities of charging and subsequent remands (see R v Elliott (1985) 81 Cr. App. R. 115; Whale and Lockton [1991] Crim. L. R. 692; R v Bull [1994] 99 Cr. App. R. 193, CA; R v Lambert (Goldan) [2009] EWCA Crim. 700).
In R v Bull the Court of Appeal reviewed the authorities on this point and also considered the effect of section 25 (2) of the Prosecution of Offences Act 1985 (POA). The Court held that the stage when a person 'comes to court to answer a charge' is when the case has proceeded beyond the formalities of charging and ensuing remands.
The general approach in Elliott, Whale and Lockton and Bull was confirmed by the Court of Appeal in Lambert (Goldan). In Lambert the issue for the court was whether at the plea before venue (PBV) hearing a defendant had come to court to answer the charge, or whether the PBV was included within the category of purely formal hearings permitted, by section 25(2) of the POA, to take place before consent had been obtained or given. On the basis that a defendant is invited to indicate a plea and may be treated as if convicted if a guilty plea is entered, the Court of Appeal decided that the PBV was "a hearing of substance" quite distinct from a simple remand hearing, and that the appropriate consent had to be obtained before the PBV procedure took place.
The position as regards the timing of consent which arises from this case law may be stated as follows. Consent to prosecute must be obtained or given prior to the following events:
1. Where the prosecution is begun by summons or by the written charge and requisition process:
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.
2. Where the prosecution is begun by arrest and charge:
Indictable Only Offences - Consent should be obtained or given before the service of the case. When this is not possible, the consent must be served prior to the effective Plea and Case Management Hearing. In Crown Court centres in which cases are routinely listed for preliminary hearings with a view to plea being entered at that hearing, the necessary consent must be obtained or given before the preliminary hearing.
Either Way Offences - before the hearing at which the plea before venue procedure takes place.
Summary Offences - before the plea is taken.
3. 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.
4. 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.
If consent is not obtained before the 'institution of proceedings', then 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 conviction: R v Angel 52 Cr. App. R. 280, CA; R v Pearce 72 Cr. App. R. (S) 295.
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. If a committal hearing has already been listed, it may be possible to lay an identical charge (consent having been obtained or given) at that hearing, invite the magistrates or District Judge to dismiss the original invalid matter, revert to PBV on the new charge, and commit it for trial at the same hearing. This has the advantage of reducing delay to a minimum and, it is submitted, involves 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 [1985] 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 to reconvene as a magistrates' court. 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 (i.e. the PBV in either way cases) and carry out all the subsequent procedures including committal for trial: see R v Lambert (Goldan) at paragraph 23.
Inchoate Offences
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.
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 which provides that where:
(a) that act or event would be an offence by the law of that other country and
(b) it would also be an offence here (but for the fact that it takes place outside the jurisdiction), then a person in England and Wales who becomes a party to the agreement or, being a party, does anything in pursuance of the agreement (even before its formation) can be charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977.
Prosecutors should note, however, that by virtue of section 4(5) of the same Act, the prior consent of the Attorney General is required to prosecute offences to which Section 1A applies.
You should also note the judgment of the Court of Appeal in R v Sheppard and Whittle [2010] 1 Cr. App. R. 26. That case involved the publication of racially inflammatory material prepared and uploaded in England but made available through a web site hosted by a remote server located in California. This element of extra-territoriality did not exclude the jurisdiction of the English courts because a "substantial measure" of the crime took place in England.
Consent to Prosecute under the Explosive Substances Act 1883
Offences under the 1883 Act require the consent of the Attorney General to prosecute.
In these cases, as set out above Area and CPS Direct Lawyers should immediately make contact with the Counter Terrorism Unit within Special Crime and Counter Terrorism Division (SCCTD). For further details on how such cases are to be handled, see Legal Guidance on Explosives.
Procedure
Form of Consent in Cases requiring the Prior Consent of the DPP
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 to the evidence and public interest.
Particular care is necessary, however, where additional charges requiring the DPP's consent are added after initial charge or as additional or alternative counts on the indictment. Where this is contemplated, the question of consent must be specifically addressed before the additional charge is laid, or the indictment is amended.
Although there is no requirement for consent to be given in writing, the existence of a written record is helpful in answering any subsequent challenge on the point. 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 prima facie evidence without further proof."
Thus, although there is no requirement for consent to be signified in any particular form, where it is in writing and signed it is prima facie evidence of the existence of the relevant consent. Therefore, in all cases requiring the prior consent of the DPP, prosecutors should certify that this has been given by completing the appropriate form; see example at Annex 2 below. This is also available on Compass CMS.
Consent forms should remain on file but a copy should be provided to the Court if requested. If proceedings are to be commenced by summons, a copy should be given to Police to lay the information. The form must include:
- Reference to the relevant statute
- Defendant's name and address
- Date of consent
- Name and signature of the Crown Prosecutor consenting
In multi handed cases, consent forms should be prepared for each defendant. If the consent form is not completed at the time consent is given, full reasons for non-completion should be endorsed on the CPS file, signed and dated. The form should then be completed as soon as possible.
Obtaining the consent of the Law Officers
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.
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 must be referred to HQ Central Casework Divisions or the Principal Legal Advisor, or referred to or notified to the CCP or DCCP - see Referral of Casework 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;
- to supply documents in accordance with the procedure set out below; and
- to select appropriate counsel (if required).
The Chief Crown Prosecutor (CCP), Deputy Chief Crown Prosecutor (DCCP), or 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. Where the prosecutor considers that the evidential stage of the Full Code Test is met but the public interest does not require a prosecution, the prosecutor should, via the relevant CCP or DCCP, contact the Attorney General's Office to discuss whether the case is one where the Attorney might reasonably want to be consulted.
Under no circumstances should Area lawyers reject AG consent cases on public interest grounds without prior consultation with AGO, if the evidential stage of the Full Code Test is met.
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.
Procedure for obtaining the Law Officers' consent
The following paragraphs provide a checklist of the material that must be provided to the Attorney General's Office. The whole case file need not and must not be sent as a matter of course. Original documents should not be sent to the Attorney General's Office.
1. Draft charges/Indictment.
2. Typed submission from the prosecutor. This could be in the form of a review note/MG3, an advice or a letter, and it must:
- contain a summary of the facts. A police summary may be sufficient, but only if it is clearly suitable for these purposes;
- identify all the issues in the case
- contain an explanation of each charge in relation to each defendant;
- cross refer to statements and exhibits; the relevant page numbers must be referred to in brackets. Markings must be then made in the margins on the cross-referenced page, highlighting the exact passage referred to;
- highlight any issues as to timing;
- bring to the Attorney's attention any other issues or sensitivities surrounding the matter; and
- describe how the prosecution intends to put the case.
3. Counsel's Advice, where it has been obtained and only if it clearly contains all the above elements. It need not necessarily be sent as a matter of course.
4. Copies of key statements, i.e. those that are necessary to demonstrate that the evidential stage of the Full Code Test is met. In cases requiring the consent of the Law Officers, the public interest is a matter for the Attorney General; therefore please ensure that all documentation that is relevant to the public interest is also sent.
Statements must be paginated and indexed, and placed in order of the events. Do not send large bundles of irrelevant statements, since the aim is to provide a bundle of core statements and exhibits which will allow the Attorney General to gain a clear understanding of the case.
5. Copies of key exhibits (including video/tape), applying the same principles and practice as with key statements, above.
6. Any other key documents which may be of particular relevance for the Attorney General. These may be antecedents of a witness, information provided by the police, or unused material.
7. Antecedents of the accused or prosecution witness/es (if applicable).
8. Details of the prosecutor with conduct of the case.
It is important that the name and address of the defendant is stated accurately. Applications for consent should be sent to:
Attorney General's Office
20 Victoria Street
London
SW1H 0NF
General Enquiries: 020 7271 2400
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.
Timing of application for Law Officers' consent
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. A minimum of two weeks will be required in a straightforward case, but considerably longer will be required in the more complex matters.
Involvement of the AGO as the case progresses
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, only the Attorney can authorise the withdrawal of a charge requiring consent, 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.
Discontinuing/accepting pleas in AG consent cases
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 or informed. The AGO should be consulted when major changes to the charges are proposed in a case where the Attorney General was the consenting authority, and, also, when it is proposed to accept pleas to lesser charges than those for which consent had originally been granted.
Institution and Prosecution of Offences under the Customs and Excise Acts
Background
The Revenue and Customs Prosecutions Office ("RCPO") was established on the 1st April 2005 under the Commissioners for Revenue and Customs Act 2005 ("CRCA"). It created the post of Director of Revenue and Customs Prosecutions ("DRCP") and authorised him to institute and conduct criminal proceedings in England and Wales relating to criminal investigations by the Revenue and Customs.
Section 37 of the CRCA authorises the DRCP to designate any member of RCPO (to be known as a "Revenue and Customs Prosecutor") to exercise any of his functions. It is from this provision that RCPO prosecutors derive the authority to institute and conduct criminal proceedings in relation to criminal investigations carried out by the Revenue and Customs.
Certain offences, detailed below, can only be prosecuted by agencies other than RCPO with the consent of the DRCP (or the Commissioners of Revenue and Customs or one of the Law Officers; see section 145(1) of the Customs and Excise Management Act 1979 ("CEMA")). The DRCP's power to grant consent cannot be delegated; i.e. the DRCP must personally make the decision with regard to the granting of consent to prosecute those offences which require consent.
Following the merger of the RCPO with the CPS on the 1 January 2010, the Director of Public Prosecutions was appointed as DRCP. The two roles which the Director holds derive from two separate pieces of legislation, i.e. the CRCA (in respect of his role as DRCP) and the Prosecution of Offences Act 1985 (in respect of his role as DPP).
Section 40 of CRCA provides that a member of the RCPO may not disclose information which it holds in connection with any of its functions and which relates to a person whose identity is specified in the disclosure or can be deduced from it. A person who does so commits an offence. The rationale behind this prohibition is the need to ensure that the confidentiality of taxpayers' personal information is preserved.
This means that although the DPP and the DRCP are one and the same person, a request to prosecute can only be considered by him when acting as the DRCP and never as the DPP, as this could risk a breach of section 40 CRCA.
Who has authority to institute proceedings to prosecute offences under the Customs and Excise Acts?
Any prosecutor who has been designated under Section 37 of the CRCA can institute proceedings in respect of offences under the Customs and Excise Acts. This phrase is defined in section 1(1) of CEMA to include, as well as CEMA itself,
- the Customs and Excise Duties (General Reliefs) Act 1979;
- the Alcoholic Liquor Duties Act 1979;
- the Hydrocarbon Oil Duties Act 1979;
- the Tobacco Products Duty 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 Value Added Tax Act 1994, and certain other revenue offences. See Annex 1 Part 2 for a full listing of the relevant offences.
What is the practical effect of the merger between CPS and RCPO?
All former RCPO prosecutors in the CPS retain their designation and have the authority to institute and continue proceedings in relation to Customs and Excise Act offences. This includes all lawyers in the Central Fraud Group (CFG), all lawyers in the UKBA Unit within Organised Crime Division and all former RCPO lawyers within the Proceeds of Crime Unit.
Where any non-RCPO designated lawyer (whether from the CPS or from any other prosecuting authority, for example DEFRA or DWP) wishes to institute proceedings for a Customs and Excise Act offence, the consent of the DRCP must be sought and obtained (section 145(1) CEMA).
The UK Border Agency (UKBA) took over investigation of all non-fiscal smuggling offences in December 2009. On 2 December 2009 the Attorney General assigned to the DPP the power to prosecute UKBA investigated cases using the general power of assignment under section 3(2)(g) of the Prosecution of Offences Act 1985. Where a designated RCPO prosecutor institutes such proceedings, consent is not required and the case can be passed to another CPS division, unit or area for it to be progressed. In all other cases, the DRCP's consent will be required.
Procedure for obtaining consent
The procedure for obtaining the DRCP's consent is as follows:
- The request for consent should be sent to the RCD, Commercial Prosecutions and Policy team, for the attention of the designated Single Point of Contact (SPOC) via the consents inbox at RCDrequestsforconsent@cps.gsi.gov.uk;
- The request must confirm that the Full Code Test (FCT) stages of evidential sufficiency and public interest, as set out in the Code for Crown Prosecutors, have been applied, and explain why those stages are satisfied in respect of each and every defendant for whom consent is sought.
- It must also explain why the criminal investigation was conducted by a law enforcement agency other than HMRC which may include details of how and when the case was passed by HMRC to another investigating authority.
- The best source for information is the charge sheet, or draft indictment and the police, prosecutor or Counsel's summary of evidence, whichever is relevant.
- The SPOC will consider the papers and decide whether the Code test has been properly applied by the prosecuting authority. This is of particular significance in relation to the public interest stage of the FCT in tax offences, where the non-RCPO prosecutor may not be as familiar with the civil sanctions that may have been applied to suspects by HMRC. In certain cases these can provide an argument that there is an abuse of process when individuals are then additionally prosecuted.
- Should the SPOC consider that further information is required she will contact the applicant prosecuting authority with a request for such further information to enable the matter to be properly considered and for a submission to be drafted for the DRCP.
- When the SPOC is satisfied that she has sufficient information a submission will be drafted containing a recommendation, either to grant consent or not. Where the recommendation is to grant consent, the submission will be accompanied by a draft Consent Notice. This will then be submitted to the DRCP's Private Office via the Submissions inbox.
- When the DRCP decides to grant consent, he will sign the Consent Notice/s and return the same to the SPOC who will retain the original signed Notice and send a copy with a covering letter to the applicant prosecuting authority; an example of the Notice is shown at Annex 2 below.
- When the DRCP decides not to grant consent, a letter to that effect will be sent to the applicant prosecuting authority with any relevant recommendation that the DRCP considers appropriate.
This procedure should be followed in every case to which it applies. Best practice is to seek consent at the earliest opportunity.
In the case of proceedings which are instituted by way of laying information in order to obtain a summons, consent must be obtained before the laying of information; otherwise the proceedings will be void.
Sometimes it is not possible to secure consent prior to a matter being charged. It is possible and proper in such cases to rely upon section 145(6) CEMA which enables any court, before which someone who has been arrested for any offence for which they are liable to be arrested under the Customs and Excise Acts is brought, to deal with the case even where proceedings have not been instituted in accordance with the section: R v Keyes and Others [2002] 2 Cr. App. R. 181, CA. However, consent should then be sought as soon as possible after any preliminary hearings and prior to any guilty plea being entered or a trial taking place.
Queries in respect of this part of the guidance can be directed to the SPOC via the above e-mail address.
Request for DPP Consent from other Prosecuting Agency
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.
Annex 1
Part One: Schedule of Offences Requiring Consent For Prosecution
Agricultural Credits Act 1928
s.10(3)
AG: s.10(3)
Agriculture & Horticulture Act 1964; offences in Part III
AG or Secretary of State (Sec of State)
s.20(3)
Agricultural Land (Removal of Surface Soil) Act 1953
DPP or AG: s. 3
Agricultural (Miscellaneous Provisions) Act 1954 s.9(5), s.9(6)
DPP or Local Authority: s.9(7)
Air Force Act 1955, s.132, (extension of time for beginning prosecution for a civilian offence against a serviceman)
AG: s.132(3A); apart from this, no consent by either DPP or AG is required for a prosecution under the Air Force Act
Animals (Scientific Procedures) Act 1986 s.1
DPP: s.26(1)(b)
Antarctic Act 1994
Sec of State: s.28 (1)(a)
DPP: s.28(1)(b)
Anti-Terrorism, Crime & Security Act 2001, s. 47, s. 50, s. 113
AG: s.55 and s.113B; note: offences under s.53 (development of nuclear weapons etc., outside U.K. and movements in and out of UK) are subject to the consent of the DRCP or the Commissioners of Revenue and Customs.
Army Act 1955, s.132 (extension of time for beginning prosecution for a civilian offence against a serviceman)
AG: s.132(3A); see annotation under Air Force Act 1955
Atomic Energy Act 1946
s. 11, s. 14(4)
DPP: s. 14(4)
Auctions (Bidding Agreement) Act 1927, s.1
AG: s.1(3)
Aviation Security Act 1982, s.1, s.2, s.3, s.5 and s.6
AG: s.8(1)(a)
Aviation and Maritime Security Act 1990
AG: s.1(7) and s.16
Bail Act 1976, s.9(1)
DPP: s.9(5)
Banking Act 1987, s.106(1) and s. 96(5)(a)
DPP or Local Authority: s.96(5)(a)
Biological Weapons Act 1974, s.1
AG: s.2(1)(a)
Bribery Act 2010 s.10
DPP : s. 10(1)(a)
Broadcasting Act 1990 and 1996; publishing an obscene article a s defined by s.2 of the Obscene Publications Act 1959
DPP: Schedule 15, paragraphs 4(1) & 4(2)
Building Act 1984
AG: s.113
Building Societies Act 1986
DPP: s.96(5); not required if proceedings are brought by the Building Society Commission.
Cancer Act 1939, s4(1)
AG: s.4(6)
Cereals Marketing Act 1965
DPP: s.22(1)(b); Home-Grown Cereals Authority may also institute proceedings: s.22(1)(a)
Charities Act 1993, s.5, s.11, s.18(14), s.49 and s.73(1)
DPP: s.94(1)
Chemical Weapons Act 1996,
AG in respect of offences under s.2 and s.11: s.31(1)(a): Other offences require the consent of the Sec of State: s.31(2)
Child Abduction Act 1984, s.1 and s.5
DPP: s.4(2)
Children & Young Persons (Harmful Publications) Act 1955, s2(1)
AG: s.2(2)
Civil Aviation Act 1982
Sec of State or DPP for offences under s.44(11), s.45(7)(a) or s.83(3)(a);
DPP only for offences under s.92(2)(a). Note: where the offence is one contrary to the Air Navigation Order 2009, section 92(2)(a) is disapplied, and the DPPs consent is not required.
Coal Industry Act 1994, s.7
Treasury or Sec of State: s.5(8)
Companies Act 1989, s.85, s.86 and s.89
DPP for offences under s.85: Sec of State for offences under s.86; either DPP or Sec of State for offences under s.89
Consumer Protection Act 1987, s.11
DPP or Sec of State: s.11(3)(c)
Contempt of Court Act 1981, s.7 and s.8
AG or Court: s.8(3)
Coroners and Justice Act 2009, s.62
DPP: s.62(9)
Corporate Manslaughter and Corporate Homicide Act 2007 s. 17
DPP: s. 17(a)
Criminal Attempts Act 1981, where substantive offence requires consent
AG or DPP, as appropriate to the substantive offence: s.2(2)
Criminal Justice Act 1987, s.11
AG: s.11(3)
Criminal Justice Act 1988, s134 and s.160(4)
AG for offences under s.134: s.135(a); DPP for offences under s.160: s.160(4)
Criminal Justice (International Co-operation) Act 1990, offences under Part II or Schedule 3
DPP or DRCP: s.21(2)(a)
Criminal Justice Act 1993 (insider dealing offences)
DPP or Sec of State: s61(2)
Criminal Law Act 1967, s.4(1) and s.5(3)
DPP: s.4(4)
Criminal Law Act 1977, s.1, s.1A and s.9
s.4(1): provides that the DPP's consent is required for summary only proceedings.
s.4(2): provides that where the substantive offence in question would require the consent of the AG or the DPP, 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 AG.
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 AG.
Customs & Excise Management Act 1979
See Part 2, below
Data Protection Act 1984 (all offences)
DPP or The Data Protection Registrar: s.19(1)(a):
Data Protection Act 1998 (all offences)
Data Commissioner or DPP: s.60
Electricity Act 1989, s.29 and s. 59
DPP: s.29(4); S59(3): DPP or Sec of State: s.59(3)
Emergency Laws (Re-enactments and Repeals) Act 1964, s.1 and s.2
DPP or Treasury: s.14(1)
Energy Act 1976, schedule 2 paragraphs 6(1) and 6(2)
Sec of State or DPP
Energy Act 1983, Part I
DPP
Environmental Protection Act 1990, s.118
DPP or Sec of State: s.118(10)
Explosive Substances Act 1883 (all offences)
AG: s.7(1)
Finance Act 1989, s.182
DPP
Financial Services and Markets Act 2000
Sec of State, FSA or DPP: 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 DPP needed to extend time: s.51(4)
Fraudulent Mediums Act 1951, s.1
DPP: s.1(4)
Gas Act 1965, Part II
DPP: s.21(2)
Gas Act 1986, s. 43(1)
DPP or Sec of State: s.43(2)
Geneva Conventions Act 1957, s.1(3)
DPP: s.6(7)
Genocide Act 1969, s.1
AG: s1(3)
Health & Safety at Work Act 1974, Part I
DPP or Health and Safety Inspector: s.38
Highways Act 1980, s.167, s.177 and schedule 22
AG: 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.
Horticultural Produce Act 1986
AG or Minister of Agriculture, Fisheries and Food: s5(c)
Housing Act 1985, s.338(1)(a)(b)
AG (if prosecution against Local Authority): S339(2)
Housing Association Act 1985, s.27(4) and s.30(6)
DPP or Housing Corporation
Human Fertilisation & Embryology Act 1990, s.41
DPP: s.42(a):
Human Organ Transplant Act 1989, s.1 and s.2
DPP: s.2(3)
Human Tissue Act 2004, s.5
DPP: s.50
Human Reproductive Cloning Act 2001, s.1(1)
DPP: s.1(3)
Incitement to Disaffection Act 1934, all offences
DPP: s.3(2)
Income & Corporation Taxes Act 1988, s.765
AG: s.766(4)
Insolvency Act 1986, chapter 4 offences
DPP: s.218(2)(a)
Interception of Communications Act 1985, s.1(1)
DPP: s.1(4)(a)
Internationally Protected Persons Act 1978, s.2(1)
AG: s.2(1)(b)
Iraq (United Nations Sanctions) Order 2003 S.I. 2003/1519
AG: Art 20(15)
Judicial Proceedings (Regulation of Reports) Act 1926, all offences
AG: s.1(3)
Landmines Act 1998, s.2
AG: s.20
Law of Property Act 1925, s.183
AG: s.183(4)
Law Reform (Year and a Day Rule) Act 1996, s.2(2)
AG: s.2(4)
Legal Aid Act 1988, s.38
AG: s.38(5)
Local Government Act 1972, s.94(1)
DPP: s.94(3)
Local Government & Housing Act 1989, s.19(2)
DPP: s19(3)
Lotteries & Amusements Act 1976, s.2(1)(c)(iii)
DPP: s.3
Magistrates ' Courts Act 1980, s.71(4)
AG: s.8(6) & S71(4)
Marine and Broadcasting (Offences) Act 1967, as amended by Schedule 16 of the Broadcasting Act 1990, all offences
DPP or Sec of State: s.6(5)
(For WT/MEBO Act offences contact: DTI on 020 7211 0455/0470)
Marine Insurance (Gambling Policies) Act 1909, s.1
AG: s1(3)
Mental Health Act 1983, s127(1) and s. 139(2)
s.127(4): DPP
S139(2): DPP
Merchant Shipping (Liner Conferences) Act 1982, s.10(2)
DPP: s.10(3)
Mines & Quarries Act 1954, s.151(1)
AG: s164
Mines and Quarries (Tips) Act 1969, Part II offences
DPP or Local Authority: s.27(1)
Money Laundering Regulations 2003
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): AG or Area (or District) Health Authority concerned
Paragraph 1(7): DPP or Medical Practises Committee
Naval Discipline Act 1957, s.52 (extension of time for beginning prosecution for a civilian offence against a serviceman)
AG: S52(3)(b); see annotation under Air Force Act 1955 (above):
Newspapers, Printers & Reading Rooms Repeal Act 1869, Schedule 11 paragraph 1
AG: s.4
Nuclear Installations Act 1965, s.2(2) and s.19(5)
DPP or relevant Minister: s.25(3)
Nuclear Materials (Offences) Act 1983, s.1 and s.2
AG: s.31(a)
Nursing Homes Act 1975, s.3(1) and s.3(5)
AG or Sec of State: s.11(1)
Obscene Publications Act 1959, s.2
DPP: s2(3A)
Official Secrets Act 1911, all offences
AG: s.8
Official Secrets Act 1920, s.8
This refers to consenting to summary trial. The consent of the AG is needed: s.S8(2)
Official Secrets Act 1989, all offences
AG, except for offences under s. 4(2) for which the DPP's consent is sufficient : s9(2)
Prevention of Corruption Act 1906, all offences
AG: s2(1)
Prevention of Oil Pollution Act 1971
Responsibilities vary between the AG, the DPP and the Sec 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)
DPP: s1(5)
Protection of Children Act 1978, s.1(1)
DPP: s.1(3)
Protection of Military Remains Act 1986, s.2(2)
DPP: s.3(3)
Protection of Trading Interests Act 1980, s.1(2), s.1(3) and s.2(1)
AG or Sec of State: s. 3(3)
Public Bodies Corrupt Practices Act 1889, s.1
AG: s.4(1)
Public Health Act 1936, all offences
AG, 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
AG, as with the 1936 Act, above: s.64(1)
Public Order Act 1936, s.2
AG: s2(2)
Public Order Act 1986, s.1, and offences under Part IIIA, as amended
DPP as to offences under s.1: s7(1); AG 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 DPP is required; proceedings may also be instituted by Traffic Commissioner, a Chief Officer of Police or County Council
Radioactive Substances Act 1993, all offences
DPP or Sec 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
DPP or Sec of State: s.118 (8), s119(10), s.120(5), s.121(6) and s.146(2):
Regulation of Investigatory Powers Act 2000, s.1
DPP: s.1(8)
Rehabilitation of Offenders Act 1974, s.9(2)
DPP: s.9(8)
Reservoirs Act 1975, s.22
DPP, Sec of State, Local Authority, London Borough Council or District Council: s.22(6)
Rivers (Prevention of Pollution) 1961, s.12
Sec of State: s.12(a)
Road Traffic Act 1988, s.112 and s.114
Sec of State
Serious Crime Act 2007, s.44, s.45 and s.46
AG: s.53 (and see Schedule 4 of the Act)
Serious Organised Crime and Police Act 2005, s.128
AG: s.128(6)
Sexual Offences Act 1956, s.10, s.11 and s37
DPP: 2nd Schedule, Part 1, serials 14 & 15:
Sexual Offences (Amendment) Act 1992, s.5
AG: s5(4)
Solicitors Act 1974, s.42(1)
AG, DPP or Law Society: s.42(2)
Suicide Act 1961, s.2(1)
DPP: s.2(4)
Suppression of Terrorism Act 1978, s.4
AG: s.4(4)(b)
Surrogacy Arrangements Act 1985, s.4(2)
DPP: s4(2)(a)
Taking of Hostages Act 1982, all offences
AG: 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
DPP: s.117 But where it appears to the DPP that the offence has been committed for a purpose wholly or partly connected with the affairs of a foreign country, the DPP shall not give consent without the prior permission of the AG
Terrorism Act 2006, Part I
DPP: s.19; but same proviso applies as with Terrorism Act 2000 (above).
Theatres Act 1968, s.2 and s. 6
AG : s. 8
Theft Act 1968, s.30 (theft from spouse)
DPP: s.30(4)
Trading with the Enemy Act 1939, s.1
DPP: s.1(4)
Transport Act 1985, s.74(7)
DPP: s.74(8)
Transport and Works Act 1992, Part II
DPP or Sec of State: s.58
Transport (London) Act 1969, s.23(2)
DPP: s.23(2)
Unsolicited Goods & Services Act 1971, s.4(1)
DPP: s.4(3)
War Crimes Act 1991, s.1(1)
AG: s.1(3)
Water Act 1989, s.175
DPP, Sec of State, or the Minister: s.175(2)
Water Industry Act 1991, s.207(1), s.211 and s.298
s.207(2): Sec of State, DPP or AG
s.211: AG
Wildlife and Countryside Act 1981, s.28(1)(a) to (c)
DPP or Nature Conservancy Council: s.28(10)
Part Two: Offences for which the Consent of the Director of Revenue and Customs Prosecutions is needed
s. 145 Customs & Excise Management Act (CEMA) 1979
1. Under CEMA 1979 criminal offences in relation to:
s. 23 - the control of movement of hovercraft
s. 24 - the control and movement of goods by pipe-line
s. 26 - the power to regulate movements of goods into and out of Northern Ireland by land
s. 31 - the control and movement of goods to and from inland clearance depots
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. 63 - the 'Entry' outwards of exporting ships
s.64 - clearance outwards of ships and 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. 73 - Power to make regulations as to carriage of goods coastwise, etc
s. 74 - Offences in connection with carriage of goods coastwise
s. 100 - General offences relating to warehouses and warehoused goods
s. 129 - Power to remit or repay duty on denatured goods
s. 136 - Offences in connection with claim for drawbacks allowances etc
s. 159 - the power to examine and take account of goods
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
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)
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
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 persons 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
Annex 2
Example Consent Notices
1. Consent of the Director of Public Prosecutions
Statutory provision:
I consent to the prosecution of <Defendant Name>
of <Defendant Home Address>
for an offence or offences contrary to the provisions of the said Act.
Dated the [date] day of [month] [year]
Signed: .............................................................................. ........................
Crown Prosecutor
2. Consent of the Director of Revenue and Customs Prosecutions
Customs and Excise Management Act 1979
RE:
In PURSUANCE of my powers under section 145 of the above-named Act, as amended, I HEREBY CONSENT to the prosecution of [NAME] of [ADDRESS] for an offence or offences contrary to the provisions of [the customs and excise Acts].
The Director of Revenue and Customs Prosecutions
Dated this [DATE] day of [MONTH] 20xx
