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Consents to Prosecute

Principle

Some offences and other matters cannot be instituted without the prior consent to prosecute of the Attorney General (AG), the Director of Public Prosecutions (DPP) or the Director of Revenue and Customs (DRCP).

The timing of consent varies depending on the charge. It is important to identify cases that require consent at the pre-charge or initial review stage and inform the AGO that an application wil be forthcoming in relevant cases. A schedule of offences and other matters 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.

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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. 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.

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 obtained or given 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 (including conspiracies)

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) [2004] EWCA Crim 631 [2004] QB 1418 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 AGs consent is required, prosecutors should consider the following matters:

  1. Identify the substantive offence(s) that would be committed if the agreement were carried out in accordance with the intentions of the parties.
  2. 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).
  3. A substantive offence that is triable here should be tried here as that substantive offence, if at all possible.
  4. 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.
  5. 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.

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DPP Personal Consent

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.

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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.

  • 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.

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Procedure for obtaining DPP personal consent for Bribery Act 2010 prosecutions

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, he will sign the Consent Notice and 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.

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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. 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 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; 
  • highlight public interest factors which may affect the decision to prosecute;
  • 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 case should still be referred to the Attorney General's Office for a decision as to whether it would be in the public interest to prosecute. 

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.

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 to seek a view 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 they are made.

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.

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 full evidential review of the case in accordance with the Code for Crown Prosecutors;
  • list all the public interest factors which tend in favour of a prosecution and those which tend against.  Where the reveiwing lawyer takes the view that there are no public interest factors which tend against a prosecution this should be clearly stated in the review note;
  • 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; and
  • confirm that the submission of the application for consent has been authorised by the (D)CCP or Head of Casework Division who is responsible for the quality of the submission.

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.

In the early stages of proceedings not all of the 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: 

Deputy Director, Criminal Law
Attorney General's Office
20 Victoria Street
London
SW1H 0NF
General Enquiries: 020 7271 2400

Where possible documents should be submitted electronically to consents@attorneygeneral.gsi.gov.uk

Where items are submitted by post only, an e-mail should be sent to consents@attorneygeneral.gsi.gov.uk

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 where the suspect is on bail, but considerably longer will be required in the more complex matters.

In certain circumstances, for example where a suspect is in custody, a Law Officer can consider consent more quickly and the Attorney General's Office should be approached in all cases as soon as it is realised consent will be required.

In the police or prosecutor delay the application for consent this may affect the public interest consideration.

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. A Crown Prosecutor cannot have the delegated authority of the AG. 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. 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.

Where 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 consent the Attorney General's Office, provided that the basis of plea complies with part 10 of the Code for Crown Prosecutors, and Part C of the Attorney General's Guidelines on the Acceptance of Pleas.

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 in Annex One Part Two, 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 Division, 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 Denise Bradshaw in the Central Fraud Division at denise.bradshaw@cps.gsi.gov.uk. Where a consent is sought urgently and Denise is absent (her out of office e-mail shall advise as to her whereabouts and length of absence), it should be forwarded to Kirstie Dye Kirstie.Dye@cps.gsi.gov.uk and Andrew Biker Andrew.Biker@cps.gsi.gov.uk and one of them shall deal with the request.   When requests are made very proximate to the next court hearing so that they require to be dealt with urgently, i.e. for court proceedings that are due to take place in the next 24 hours, an explanation as to why the consent was not asked for earlier and explaining the urgency must be provided with the request.
  • The request must confirm that the Full Code Test 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 Full Code Test 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 Denise Bradshaw 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.

Request for DPP consent in a private prosecution

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 passess 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.'  

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Annex 1

Part One: Schedule of Offences Requiring AG or DPP Consent For Prosecution

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.

Homicide

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 Principal 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)

Part Two: Offences Requiring the Consent of the Director of Revenue and Customs Prosecutions

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 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.75 Explosives
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 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 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

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).

Part Three: Matters requiring DPP personal consent

Power or Function assigned specifically to the DPP Originating statute Agreed delegated individual(s)
 Bribery offences Sections 10(1) and 10(4) Bribery Act 2010 ('the DPPmust exercise personally any functionof giving consent').  Principal Legal Advisor in the first instance, Heads of Central Casework Divisions in the event that neither the DPP nor Principal 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 applicationwith the written consent of the Director of Public Prosecutions') Principal Legal Advisor

Immunities:

Section 71 witness immunity notice

 

 

 

Section 72 restricted use undertaking

 

 

Sections 73 and 74 sentence discount agreements

 

 

Investigatory Powers (power to issue Disclosure Notice, apply for Search Warrant etc)

 

Section 71(4)(a) Serious Organised Crime and Police Act 2005 - power given to a 'specified prosecutor' including the Director of Public Prosecutions

 

Sections 72(1) and (7) Serious Organised Crime and Police Act 2005 refer to 'a specified prosecutor', given same meaning as under section 71

 

Sections 73(10) and 74(3)(b) of Serious Organised Crime and Police Act 2005

 

 

 

Section 60(1) Serious Organised Crime and Police Act 2005 confers various powers on the DPP in relation to sections 61-69

 

Principal Legal Advisor (in the case of CPS Areas), Heads of Central Casework Divisions, or nominated SCS prosecutor

 

 Principal Legal Advisor (in the case of CPS Areas), Heads of Central Casework Divisions, or nominated SCS prosecutor

 

 Principal Legal Advisor (in the case of CPS Areas), Heads of Central Casework Divisions, or nominated SCS prosecutor

 

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.  Principal Legal Advisor, Chief Executive (if prosecutor), Chief Operating Officer (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), Chief Operating Officer (if prosecutor), Head of Organised Crime Division

Immunities:

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), Chief Operating Officer (if prosecutor), Head of Organised Crime Division

Police Reform and Social Responsibility Act 2011 Section 153(1) - restriction on the use of arrest warrants in private prosecutionsHead of Special Crime and Counter Terrorism Division and in his/her absence, Deputy Head of Special Crime and Counter Terrorism Division

Further Situation:

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)

 

N/A

Principal Legal Advisor for legal issues.  Chief Executive/Chief Operating Officer for business issues
   

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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

 

3. 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 publci Prosecutions.

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