Consents to Prosecute

Updated: 11 December 2018|Legal Guidance

Headlines

  • Some offences cannot be instituted without the prior consent of the Attorney General (AG) or the Director of Public Prosecutions (DPP).
  • Some prosecutions, such as those under the Bribery Act 2010, require the personal consent of the DPP. It is important to identify cases that require consent at the pre-charge or initial review stage. (NB all AG consent offences require the personal consent of the AG-there is no delegation of this consent.)
  • Consent cases are statutorily created, with the requirement for consent being imposed in order to prevent certain offences being prosecuted in inappropriate circumstances.
  • The legal requirement is generally for consent to have been obtained or given before the prosecution is 'instituted'. 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.
  • Procedures for obtaining the consent of the AG should be followed very carefully.

Introduction

Some prosecutions cannot be instituted without the prior consent of the Attorney General (AG), or the Director of Public Prosecutions (DPP). It is important to identify cases that require AG's consent and inform the Attorney General's Office (AGO) that an application will be forthcoming. A schedule of offences requiring consent is attached at Annex 1, Parts 1, 2 and 3. However, prosecutors should always read the offence when faced with an unfamiliar charge, to check whether consent is required at some point in proceedings. Prosecutors should also be aware that some offences require consent in some circumstances and not in others. It is also important to distinguish between those offences that require the DPP’s consent (which can be delegated to a Crown Prosecutor) and the DPP’s Personal Consent.

Section 117 Terrorism Act 2000 provides that offences under that Act, (other than offences under section 36, section 51, paragraph 18 of schedule 7, paragraph 12 of schedule 12 and schedule 13) require DPP consent. However, if it appears to the DPP that an offence to which this section applies has been committed outside the United Kingdom or for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom, consent for the purposes of this section may be given only with the permission of the Attorney General.

Section 19 of Terrorism Act 2006 makes a similar provision for the prosecution of offences under this Act.

Consent cases are statutorily created, with the requirement for consent being imposed in order to prevent certain offences being prosecuted in inappropriate circumstances.

Timing of consent

Where consent is required, this must be before the institution of proceedings. However, Section 25(2) of the Prosecution of Offences Act 1985 (POA) provides that it "shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence".

The effect of Section 25 is to allow a person to be charged and for a number of procedural steps to be taken - arrest, remand, bail - prior to consent being obtained. These procedures are therefore protected from being declared a nullity (magistrates' court) or set aside (Crown Court), even if no consent has been obtained by the time they take place.

A number of authorities have addressed the issue of timing –which are summarised as follows:

Information & Summons/Charge & Requisition

Consent must be obtained before the information is laid or before issuing a written charge and requisition.

In R v Bull (1994) 99 Cr. App. R {193}, D was charged with possessing ammunition without holding a firearms certificate. D argued that the proceedings had not been instituted with the consent of the DPP, since the charges were laid in April 1990, and consent was given in October 1990. D was convicted. The court held that consent of the DPP was valid because it was given before committal, which took place in November 1990, and was the point at which proceedings were "instituted”.

This case, however, pre-dates statutory charging and Prosecutors should ensure that consent is obtained prior to the case being commenced.

Arrest and charge

Summary offences- Before plea is taken

Either way offences- Before the Plea Before Venue hearing

Indictable Only Offences- Before the sending hearing

(R v Lambert [2009] 2 Cr.App.R. 32), R v Welsh and Others [2015] EWCA Crim 1516)

Section 52(5) of the Crime and Disorder Act allows a Magistrates Court to adjourn proceedings should it think fit. In R v Welsh, the court suggests that such an adjournment would be appropriate to allow the Attorney reasonable time to make an informed consent.

Offences added to the Indictment

If an offence is charged for the first time as a count on an indictment, which has not yet been signed, consent must be obtained or given before the indictment is signed. If it is proposed to add a new count requiring consent to prosecute to an indictment which has already been signed, consent must be obtained or given before leave is sought to add the additional count.

Where it is proposed to proceed by way of a voluntary bill, any necessary consent to prosecute must be obtained or given before the application for the bill is made.

Best Practice

​Although Section 25 POA allows consent to be obtained post-charge, it should not be the usual practice of prosecutors to wait until after charge to seek or to obtain consent. The provision should only be relied on where, despite best efforts, it has not been possible to obtain consent pre-charge.

As a matter of good practice, consent should be obtained (AG's consent) or given (DPP's consent) at the earliest reasonable opportunity.

Where a case which involves an offence or offences that require the AG's consent is submitted pre-charge, the prosecutor must inform the AGO of the investigation and potential charges at the earliest opportunity. Thereafter, it is the prosecutor's responsibility to liaise with AGO to arrange the timing for the submission of a consent application.

It is essential that the Law Officers are allowed sufficient time to consider the case. The length of time required will depend on the nature and complexity of the case and the quality of the application.

Where the suspect is on bail, a minimum of two weeks will be required in a straightforward case. For more complex matters, a longer period is likely to be required and this should be discussed with the AGO.

Although efforts should always be made to obtain consent pre-charge, it is acknowledged that this will not always be feasible in custody cases. In such circumstances, consent should be obtained before the relevant hearing date, as discussed above.

If the AG's consent is required but has not been obtained by the relevant date, an application for an adjournment should be made, relying on Section 25(2) POA. Bail can be dealt with as part of that application. It should be explained to the court that the adjournment is required because the decision to grant consent to the institution of proceedings can only be made by the Attorney General or the Solicitor General and an application must be submitted and the case cannot proceed to plea, plea before venue or sending, unless consent has been granted.

Section 51 of the Crime and Disorder Act 1998 (CDA) provides that the court must send a case to the Crown Court. However, Section 52(5) allows the court to adjourn the proceedings and remand the accused. Applications for an adjournment should be for the shortest period of time necessary. Prosecutors must confirm beforehand with the AGO the quickest turnaround time to obtain the AG's consent.

If prosecutors need to contact the AGO out of hours or at weekends, they should e-mail the consents inbox (consents@attorneygeneral.gov.uk) in order to alert the AGO to the case.

In custody cases it is the responsibility of the charging lawyer to ensure that the MG3 contains instructions to the court prosecutor to apply for an adjournment at the first appearance in order for AG’s consent to be sought. The MG3 should also include instructions for the CPS Area to contact the AGO during office hours (020 7271 2492). A CPSD prosecutor or manager should copy the e-mail to the DCCP in the Area and to the CCP for CPSD, The MG3 should also indicate the bail/remand status of the defendant. It is then the responsibility of CPS Area to submit a formal application for consent to the AGO as soon as practicable, to enable the AG to consider it and reach a decision before the next date of hearing.

The following should be considered when making application to adjourn:

  • The comments of the Court in R v Welsh and Others [2015] EWCA Crim 1516:

"If the Attorney has not had a reasonable time in which to make an informed consent, the court is likely to grant an adjournment for the minimum time necessary ... We have referred already to the indication in CW that 28 days should suffice. If the Magistrates' Court granted an adjournment of that length and sent the case to the Crown Court, we would expect the Crown Court to manage the case on the assumption that the prosecuting authority will have used the time to good effect" [56].

  • The AG's consent is a statutory requirement to institute proceedings.
  • Consent must be given personally by either the AG or the SG, as it is not a power that can be delegated to anyone else. It should be explained to the court why it has not been feasible to obtain the consent prior to or since arrest (for example, out of hours charging decision)
  • The court should be provided with a firm time estimate of the period needed to obtain consent, together with reasons why the time requested is necessary. This should be based on information received from the AGO. The court could also be informed that it would be acceptable to the CPS for the time between sending and the first appearance in the Crown Court to be abridged.
  • If the prosecutor has been unable to consult with the AGO before the first hearing (for example, when the first hearing is on a Saturday), a 7 day adjournment should be requested for defendants who are to be remanded in custody (14 days where the defendant is to be bailed). The Prosecutor should explain to the court that they have been unable to consult with the AGO and may need to seek a further adjournment if a consent decision cannot be obtained within the adjournment period.
  • If the court indicates that it is minded to refuse the application to adjourn, a request should be made to put the case back so that the prosecutor can contact the AGO to inform them of the court's position and to discuss the possibility of a shorter timeframe in which to obtain consent. The court should then be informed whether AG consent can be obtained more quickly than had been anticipated and, if so, the application to adjourn should be renewed on this basis.
  • If an adjournment is refused and the case is sent to the Crown Court, at the first hearing at the Crown Court (by which time a valid consent should have been obtained), prosecutors should ask the Judge to use the power under Section 66 of the Courts Act 2003, which allows a crown court judge to exercise the powers of a district judge in the magistrates court, to address the irregularity in getting the defendant before the Crown Court. Using this power, any earlier proceedings in the lower court may then be set aside and regularised by holding a new plea before venue hearing and / or re-sending the case to the Crown Court (see below).

Late consent and Absence of consent

If consent is not obtained before the protection afforded by Section 25 is exhausted, the court will be acting without jurisdiction and, if convicted, the defendant will ordinarily be entitled to have their conviction set aside on appeal: R v Angel 52 Cr. App. R. 280, CA; R v Pearce 72 Cr. App. R. (S) 295; R v Director of Public Prosecutions ex parte Kebilene [2000] 2 A.C. 326.

However, where consent has been granted after the stage of proceedings by which it was required and permission is sought for leave to appeal out of time, the Court of Appeal may not grant an extension of time if there has been no substantial injustice - R v Welsh.

Any proceedings in the magistrates' court after the point at which consent should have been given will be a nullity and the prosecution must begin again. It may be possible to lay an identical charge (consent having been obtained or given), invite the court to dismiss the original invalid matter and revert to the hearing by which consent should have been obtained. This has the advantage of reducing delay to a minimum and it should involve no prejudice to an accused such as would give rise to an abuse of process argument. It is good practice to give prior notice to all other parties of the intention to proceed in this way.

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. 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.

Inchoate offences (including conspiracies)

Consent is needed for the prosecution of an attempt or conspiracy to commit an offence, which itself requires consent. Consent is also needed for offences of aiding, abetting, counselling or procuring a substantive offence which requires consent.

Offences of encouraging or assisting, triable by reason of Schedule 4 of Serious Crime Act 2007, require the consent of the AG.

By virtue of section 1A of the Criminal Law Act 1977, a charge of conspiracy to commit offences outside England and Wales requires AG’s consent, provided all of the four conditions laid down in that section are met.

If there is doubt whether the substantive offence(s) that would be committed are triable here, then prosecutors should seek the AG's consent under Section 1A.

A timely application for the AG’s consent is critical in conspiracy cases where section 1A is triggered, as they are often complex and require significant time for the AGO to review. The prosecutor should 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.

Advice can be obtained from the AGO 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.

DPP's Personal Consent

Some prosecutions require 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 1 Part 3 for the full list. The list of agreed delegated individuals who may give consent is also set out in that table.

Prosecutors do not have delegated power to consent in respect of the matters listed in Annex 1 Part 3.

Procedure

Offences requiring the ‘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 1985 (POA). The decision to grant consent should be taken by applying the principles in the Code for Crown Prosecutors.

R v Walker (Triston) [2016] EWCA Crim. 751 ruled that when a Crown Prosecutor decides that there is sufficient evidence to charge, and then identifies the relevant offence and notifies the police of that decision, then if the Prosecutor instituted proceedings personally, no separate consent is necessary. If the Prosecutor requires the police to charge the offender then notification of the decision constituted the giving of consent. Prior to the decision in Walker, prosecutors had to complete a form giving consent. The ruling in Walker referred to this as ‘mere surplus’ and this form is no longer necessary.

The section on the MG3 template headed ‘DPP Consent’ should only be completed in cases where personal consent of the DPP is required.

Cases requiring the ‘personal consent’ of the DPP

Where personal consent of the DPP is required, the section in the MG3 form entitled ‘DPP Consent’ must be completed to acknowledge that this has been obtained or is to be obtained. All other procedures required to obtain the consent for that particular offence must be followed. The grant of the DPP’s personal consent requires the completion of the form headed ‘PERSONAL CONSENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS’, a copy of which is shown at Annex 2 below. This form will be signed by the DPP or other senior prosecutors specifically authorised to provide a signature to the form.

The procedure varies according to the offence and the Legal Guidance for the offence should be consulted.

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 AG’s consent to prosecute.

If a prosecutor has a query on law or procedure in cases which require the consent of the AG, contact the AGO and speak to one of the lawyers who deal with consents. The switchboard number is 020 7271 2492. The AGO encourages early contact with them in all cases where the consent of the AG 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 AG, including giving consent to a prosecution. Any 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. Prosecutors should also check if the case is a type that must be referred to HQ Central Casework Divisions or to the Director's Legal Advisor - see Referral of Cases in the Legal Guidance.

The prosecutor's role in applying for Attorney General's consent is:

  • 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;
  • Follow the procedure set out below and to complete the application and supply documents in accordance with the template at annex 3; and
  • Select appropriate counsel (if required).

The Chief Crown Prosecutor (CCP), Deputy Chief Crown Prosecutor (DCCP), or Head or Deputy Head of Casework Division must:

  • Ensure that the case has been reviewed correctly and in accordance with the Code for Crown Prosecutors;
  • Check that the papers are prepared to a sufficient high standard, and to refer any deficiencies back to the prosecutor.
  • Bear in mind that, before giving consent, the Law Officers will have regard to the Code for Crown Prosecutors in respect of each proposed defendant on each proposed charge. In accordance with paragraph 4(a)3 of the Protocol, prosecutors only need refer cases to the AGO where it is considered that there is sufficient evidence to prosecute and that a prosecution is or may be in the public interest. There is no need to refer cases where a decision is taken not to prosecute, whether on evidential or public interest grounds.

In cases where representations are made by the defence, the judge or an interested third party that it would not be in the public interest to prosecute a particular suspect or defendant, these should be brought to the attention of the Law Officers when an application for consent is made. Should such representations be made after consent is granted these should be forwarded immediately to the Attorney General's Office, which should be consulted on the public interest in proceeding. Similarly, any comments by the judiciary on the public interest should be forwarded to the Attorney General's Office as soon as possible.

Where there is a choice of charges, one or more of which requires the AG’s consent, the prosecutor may select a charge not requiring the AG’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.

Once a prosecution is commenced in one of these cases, the prosecutor should keep the AG informed of its progress and whenever practicable, consult the AG if the prosecutor is contemplating either dropping the case on public interest grounds, or accepting pleas.

If the case can no longer proceed for evidential reasons which emerge after a prosecution is started, the prosecutor should inform the AG of the decision as soon as it is taken.

Procedure for obtaining the Law Officers' consent

All application for AG's consent should be made on the template at Annex 3. As per the template, the whole case file should not be sent as a matter of course. Original documents should not be sent to the AGO. It is important that the name and address of the defendant is stated accurately.

In the early stages of proceedings, where consent is required as a matter of urgency, it may be that not all of the key documents will be available. In such circumstances those papers which are available must be submitted with an indication of which other documents are to follow and the time frame. The material supplied with an application for consent must always be sufficient for the Law Officers to determine whether the evidential test used by the prosecutor (Threshold Test, Evidential Stage of the Full Code Test) has been met. The Law Officers also expect to see evidence of a proper consideration of the public interest factors, including those that tend against a prosecution, together with a clear rationale as to why the public interest factors in favour of prosecution outweigh those against.

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 AGO

Applications for consent should be sent electronically to:

consents@attorneygeneral.gov.uk

General Enquiries: 020 7271 2492

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

Please see the section on the timing of consent above.

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

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, prosecutors should consult with the Attorney General before deciding not to pursue an offence for which consent was granted unless there are exceptional circumstances. The AGO should be kept informed of the case progress, consulted on key decisions and in particular, briefed as to change of circumstances which may make a continuing prosecution untenable. When the case is completed, CPS should notify the AGO of the result and sentence imposed.

Discontinuing/Accepting pleas in AG's 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 before a decision is finalised. The AGO should be consulted when major changes to the charges are proposed in a case where the AG gave consent, and, also, when it is proposed to accept pleas to lesser charges than those for which consent had originally been granted or to accept pleas on a more limited basis.

Where, after a further review of the evidence, it is proposed to accept pleas to all the offences for which consent has been given but on a factual basis different to that put forward in the application for consent there is no need to contact the Attorney General's Office, provided that the basis of plea complies with part 9 of the Code for Crown Prosecutors, and Part C of the Attorney General's Guidelines on the Acceptance of Pleas.

Request for the DPP's consent from another Prosecuting Agency

See Relations with other prosecuting agencies, elsewhere in Legal Guidance. If consent is given, it should be accompanied by a request to the agency to supply details of the result of the case.

If a private prosecutor or another prosecuting authority wishes to start proceedings for an offence contrary to the Customs and Excise Acts, the case should be referred to the Specialist Fraud Division for advice.

Request for DPP's consent in a Private Prosecution

See Private Prosecutions, elsewhere in the Legal Guidance. If consent is given, that guidance states that: "if the proposed prosecution passes the Full Code Test, the CPS will then take over the prosecution. If the proposed prosecution fails the Test, consent to prosecute will not be given."

Annex 1 - Consents to Prosecute

Part One: Schedule of Offences Requiring AG's or DPP's Consent to Prosecution

Note: You should refer to the specific statute identified below for details of the consent requirements.

Offence

Requires consent of 

Agricultural Credits Act 1928; s.10(3)

AG: s.10(3)

Agriculture & Horticulture Act 1964; offences in Part III

AG or Secretary 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)

Animals (Scientific Procedures) Act 1986

DPP: s.26(1)

Animal Welfare Act 2006; s.4, s.5, s.6(1) and (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

DPP: s.26(1) of the Animals (Scientific Procedures) Act 1986

 

 

Antarctic Act 1994

Secretary 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 UK and movements in and out of UK) may be instituted by the DRCP or the Commissioners of Revenue and Customs

Armed Forces Act 2006

AG: s.61(2)

Atomic Energy Act 1946; s.11

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, s.1 and Part II

AG: s.1(7) and s.16(1)

Bail Act 1976, s.9(1)

DPP: s.9(5)

Biological Weapons Act 1974, s.1

AG: s.2(1)(a)

Bribery Act 2010

DPP: s.10(1)(a) Note: the DPP must exercise personally any function of giving consent. See legal guidance on Procedure for obtaining DPP 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

DPP: Schedule 15, paragraphs 4(1) & 4(2)

Building Act 1984

AG: s.113 Proceedings in respect of an offence in this Act shall not, without the written consent of the AG, be taken by any person other than: (a) a party aggrieved; or (b) a local authority or body whose function it is to enforce the provision in question

Care Standards Act 2000; offences under Part II or under regulations made under Part II

AG: proceedings shall not be taken by any person other than Her Majesty's Chief Inspector of Education, Children's Services and Skills (CIECSS) or the Welsh Ministers, without the consent of the AG; s.29(1)

Charities Act 2011; s.41, s.60, s.77(1), s.173, s.183(1)

DPP: s.345

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 Secretary of State: s.31(2)

Child Abduction Act 1984, Part I

DPP: s.4(2) s.5 - no prosecution without consent of DPP 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)

AG: s.2(2)

Civil Aviation Act 1982, s.44, s.45, s.83 and s.92

 

Secretary of State or DPP: 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 DPP's consent is not required.

Coal Industry Act 1994, s.34

DPP or Coal Authority: s.34(7)

Companies Act 1989, s.85 and s.86

DPP or Secretary of State: s.89

Consumer Protection Act 1987, s.12

DPP or Secretary of State: s.11(3)(c)

Contempt of Court Act 1981, s.7 and s.8

AG or Court: s.7 and s.8(3)

Control of Pollution Act 1974, s.6

DPP or the Environment Agency: s.6(3)

Coroners and Justice Act 2009, s.62

DPP: s.62(9)

Corporate Manslaughter and Corporate Homicide Act 2007 s.1

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.11A

AG: s.11A(3)

Criminal Justice Act 1988, s.134 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 Secretary of State: s61(2)

Criminal Justice and Immigration Act 2008, s.63(1)

DPP: s.63(10)

Criminal Law Act 1967, s.4(1) and s.5

DPP: s.4(4) and s.5(3)

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 2018 (all offences)

 

Data Commissioner or DPP s197

 

Electricity Act 1989, s.29 and s.59

DPP: s.29(4): DPP or Secretary of State: s.59(3)

Emergency Laws (Re-enactments and Repeals) Act 1964, s.1

DPP or Treasury: s.14(1)

Energy Act 1976

Secretary of State or DPP: schedule 2, paragraph s.6(1) Local weights and measures authority, Secretary of State or DPP: 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 section 85 applies; or (b)waters to which section 85 applies that, at the time of the alleged offence, were within a safety zone.

DPP: s.86(3), however, subsection (3) does not require the consent of the DPP where the proceedings in question are proceedings for which the AG is required apart from this section: s.86(4)

 

 

Energy Act 2004; offences in Chapter Three and s.131C

DPP, Secretary of State or person authorised by 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

 

 

Energy Act 2013

DPP, Secretary of State or person authorised by Secretary of State: s.28(3) and s.14(3)

 

 

 

  

ONR, Inspector or DPP

Environmental Protection Act 1990, s.118

DPP or Secretary 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

Secretary 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)

Gas Act 1965, Part II

DPP: s.21(2) and s.43(2) Gas Act 1986

Gas Act 1986, s.43(1)

DPP or Secretary of State: s.43(2)

Geneva Conventions Act 1957, s.1 and s.6

AG: s.1A(3) or DPP: s.6(7)

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.

Homicide

 

 

 

 

AG 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. Note: these cases require the approval of the Director's Legal Advisor prior to the obtaining of AG consent. (s2 Law Reform (Year and a Day Rule) Act 1996)

Horticultural Produce Act 1986

AG or Minister of Agriculture, Fisheries and Food: s.5(c)

Housing Act 1985, s.338(1)(a)(b)

AG (if prosecution against Local Authority): s.339(2)

Housing Act 1996; s.31, s.33(5), s.35(3), s.37(4), s.38(1) 

DPP or Welsh Ministers: s.31(3), s.33(5), s.35(3), s.37(4), s.38(3)

Human Fertilisation & Embryology Act 1990, s.41

DPP: s.42(a)

Human Tissue Act 2004, s.5, s32, s33

DPP: s.50

Incitement to Disaffection Act 1934, all offences

DPP: s.3(2)

Insolvency Act 1986; offences in Part VIIA and offences in Part IX Chapter VI

DPP or Secretary of State: s.251T and s.350(5)

International Criminal Court Act 2001, s.53(3)

AG: s.53(3)

Internationally Protected Persons Act 1978, s.2(1)

Investigatory Powers Act 2016 s3

AG: s.2(1)(b)

 

DPP: s.3(7)

Iraq (United Nations Sanctions) Order 2003 S.I. 2003/1519

AG: Art 20(15)

Judicial Proceedings (Regulation of Reports) Act 1926, all offences

 

 

Juries Act 1974, ss20A,20B,20C,20D

AG: s.1(3)

 

 

AG

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) in relation to offences of Homicide

Localism Act 2011, s.34

DPP: s34(5) - an offence may not be instituted except by or on behalf of the DPP

Marine Insurance (Gambling Policies) Act 1909, s.1

AG: s.1(3)

Mental Health Act 1983, s.127(1) and s.139(2)

s.127(4): DPP s.139(2): DPP

Merchant Shipping (Liner Conferences) Act 1982, s.10(2)

DPP: s.10(3)

Mines & Quarries Act 1954, s.151(1)

AG: or Minister s164

Mines and Quarries (Tips) Act 1969, Part II offences

DPP or Local Authority: s.27(1)

 

s.124(4) & (6): AG or Area (or District) Health Authority concerned Paragraph 1(7): DPP or Medical Practises Committee

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.3(1)(a)

Obscene Publications Act 1959, s.2

DPP: s.2(3A)

Official Secrets Act 1911, all offences

AG: s.8

Official Secrets Act 1920, all offences

AG: s.8

Official Secrets Act 1989, all offences

AG, except for offences under s.4(2) for which the DPP’s consent is sufficient: s.9(2)

Petroleum Act 1998; s.5B

DPP or DRCP: s.5C

Prevention of Oil Pollution Act 1971

Responsibilities vary between the AG, the DPP 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)

DPP: s.1(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 Secretary of State: s.3(3)

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 Public Health Act 1936 Act, above: s.64(1)

Public Order Act 1936, s.2

AG: s.2(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 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

DPP or Secretary of State: s.118 (8), s.119(10), s.120(5), s.121(6) and s.146(2)

Rehabilitation of Offenders Act 1974, s.9(2)

DPP: s.9(8)

Reservoirs Act 1975, s.22

DPP, Secretary of State, Local Authority, London Borough Council or District Council: s.22(6)

Rivers (Prevention of Pollution) 1961, s.12

Secretary of State: s.12(a)

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, s.12 and s.37

DPP: 2nd Schedule, Part 1, serials 14 & 15: In relation to the s.12 offence, s.8 of the Sexual Offences Act 1967 requires DPP 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

AG: s.5(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, all offences

DPP: s.4(2)(a)

Taking of Hostages Act 1982, all offences

AG: s.2(1)(a)

Terrorism Act 2000, s.117: 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 and Works Act 1992, Part II

DPP or 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 DPP, or by or with the authority of the Executive or a commissioner of police.

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, Secretary of State, or the Minister: s.175(2)

Water Industry Act 1991, s.207(1), s.211

 

 

 

  

 

 

Welfare Reform Act 2012 s129

s.207(2): Secretary of State or DPP s.211: AG - proceedings in respect of an offence created by or under any of the relevant sewerage provisions shall not, without the written consent of the AG, 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.

 

 

 

DPP s129(8)

Wildlife and Countryside Act 1981, s.28(1)(a) to (c)

DPP or Nature Conservancy Council: s.28(P)

Wireless Telegraphy Act 2006; offences in Part 5

DPP or OFCOM or Secretary of State: s.93(3)

 

Part Two: Offences contrary to the Customs and Excise Acts

Section 145 of the Customs & Excise Management Act (CEMA) 1979 - no proceedings for an offence under the customs and excise Acts shall be instituted except by or with the consent of the DPP. These were formerly consents of the Director of Revenue and Customs Prosecutions.

  1. Under CEMA 1979 criminal offences in relation to:

s. 20A - approved wharves
s. 21 - control of movement of aircraft, etc into and out of the United Kingdom
s. 22A examination stations
s. 23 - the control of movement of hovercraft
s. 24 - the control and movement of goods by pipe-line
s. 25A - transit sheds
s. 26 - the power to regulate movements of goods into and out of Northern Ireland by land
s. 27 - officers' powers of boarding
s. 30 - control of movement of uncleared goods within or between port or airport and other places
s. 31 - the control and movement of goods to and from inland clearance depots
s. 33 - power to inspect aircraft, aerodromes, records, etc
s. 34 - power to prevent flight of aircraft
s. 35 - report inwards
s. 36 - provisions as to Her Majesty's ships, etc
s. 41 - failure to comply with provisions as to entry
s. 42 - the power to regulate unloading, removal, etc of imported goods
s. 50 - offence for the improper importation of goods
s. 53 - the Entry (customs paperwork) outwards of goods
s. 54 - acceptance of incomplete entry
s. 55 - correction and cancellation of entry
s. 56 - failure to export
s. 57 - delivery of entry by owner of exporting ship etc
s. 58B - provisions supplementary to ss 58 and 58A
s. 58E - authentication of Community customs documents
s. 59 - restrictions on putting export goods alongside for loading
s. 60 - additional restrictions as to certain export goods
s. 61 - provisions as to stores
s. 62 - information, documentation, etc as to export goods
s. 63 - the 'Entry' outwards of exporting ships
s. 64 - clearance outwards of ships and aircraft
s. 65 - power to refuse or cancel clearance of ship or aircraft
s. 66 - power to make regulations as to exportation, etc
s. 67 - offences in relation to exportation of goods
s. 68 - offences in relation to exportation of prohibited or restricted goods
s. 68A - offences in relation to agricultural levies (inserted by the Finance Act 1982)
s. 70 - coasting trade - exceptional provisions
s. 71 - clearance of coasting ship and transire (summary offence at s.71(4))
s. 72 - additional powers of officers in relation to coasting ships (summary offence at s.72(3))
s. 73 - power to make regulations as to carriage of goods coastwise, etc
s. 74 - offences in connection with carriage of goods coastwise
s. 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. 170A - 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)

  1. 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.

Note: Proceedings under section 1 can only be instituted with consent of the AG.

  1. 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

  1. 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

  1. Offences under the Betting and Gaming Duties Act 1981:

s. 12(2) and para 13(3) of Schedule 1 - fraudulent evasion of GBD
s. 12(2) and para 13(3) of Schedule 1 - false documents re GBD
s. 12(2) and para 14 of Schedule 1 - carrying on a pool betting business without a permit

  1. 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

  1. 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

  1. 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

  1. Offences under Drug Trafficking Act 1994:

s. 60 - 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")].

  1. Offences under Finance Act 1996, Landfill Tax:

s. 15 - knowingly concerned in or taking steps with a view to the fraudulent evasion of tax

  1. Offences under the Chemical Weapons Act 1996:

s. 30A - 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.

  1. Offences under Landmines Act 1998:

s. 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.

  1. 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

  1. 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

  1. Offences under Anti Terrorism, Crime Security Act 2001

s. 53 - Customs prosecution for nuclear weapons offence

  1. Offences under Proceeds of Crime Act 2002

s. 451 - proceedings for specified offences [Revenue and Customs Prosecutions]

  1. Offences under Dealing in Cultural Objects (Offences) Act 2003:

s. 4 - 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.

  1. Criminal offences created under the CRCA 2005:

s. 19 - wrongful disclosure of HMRC information relating to a person's identity
s. 21 - further wrongful disclosure beyond that to a prosecuting authority
s. 29 - offences relating to breaches of confidentiality arising out of the supply of information to Inspectors of Constabulary and the Independent Police Complaints Commission
s. 30 - pretending to be an officer or commissioner of HMRC
s. 31 - obstructing an officer of HMRC
s. 32 - assaulting an officer of HMRC
s. 40 - disclosure by RCPO of confidential information

  1. 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

  1. Offences under the Tobacco Products Duty Act 1979:

s. 8G - possession and sale of unmarked tobacco
s. 8H - use of premises for sale

  1. 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 the DPP's Personal Consent

Link to table

Annex 2 - Consents to Prosecute

Example of Consent Notices

  1. PERSONAL CONSENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Section 10 Bribery Act 2010

I consent to the prosecution of <Defendant's Name>

of <Defendant's Home Address>

for an offence or offences contrary to section(s) [XX] of the Bribery Act 2010.

Dated the [date] day of [month] [year]

THE DIRECTOR OF PUBLIC PROSECUTIONS

Annex 3 – Application for AG Consents

All applications for AG consents must be submitted on the following template:

Case name;

CPS Area/Prosecuting authority

Security Marking

[You may attach documents separately for any of the sections below but please ensure they are clearly identified with the section title and number]

1. Defendant(s) name(s), DOB(s) and current (or last known) address(es) (details will be reproduced in fiat) 

2.Draft charge(s) or indictment

3. Timing (what stage have proceedings reached; if after charge why was consent not sought earlier; what is the latest date by which a consent decision is required; what, if any, statutory or custody time limits apply)

4. Summary of the prosecution case (this may be a police case summary as long as it accurately reflects the evidence and is clear and succinct: it must be suitable for briefing the Attorney General)

5. Please attach key statements and/or exhibits and list below (please do NOT send the entire bundle of evidence: the Attorney General only requires a core bundle of key evidence to enable him to fully understand the case and the prosecution’s analysis of the central issues. Alternatively, if key evidence is technical or voluminous it can be summarised at stage 4 above.) 

6. Evidential stage review (this must identify the elements for each offence which requires consent and how they will be proved ) or 

Threshold test review (which similarly covers why it is likely that each of the key elements will be provable)

7. Public interest stage review (please list all the public interest factors in favour of a prosecution and those which tend against; why is the public interest in favour of a prosecution?; is there a victim? If so what, if any, views have they expressed as to the prosecution?)

8. Legal basis upon which consent is required (for offences where consent is always required please identity the relevant provision, where consent is required subject to certain conditions being met[1] please explain how those conditions are met)

9. Other issues or sensitivities (e.g. please explain any delays; are any significant disclosure issues anticipated; is there a high level of media interest; are there linked cases/defendants being dealt with separately) 

10. Complete tick boxes below and attach additional documentation as required

 

Suspect(s) antecedents (if box not ticked it will be assumed that he/she has none) 

 

Counsel’s advice 

 

Chronology (if there are any issues re delay) 

11. Authorisation from DCCP, CCP or head of Division (certifying his/her view that the relevant Code test is met and the application is sufficient to be considered by the Attorney General) 

12. Reviewing lawyer’s contact details