PART I INTRODUCTION 1.1 In this consultation paper we examine one of the procedural mechanisms used to control the prosecution process, namely the requirement in respect of certain offences of the consent of the Law Officers (the Attorney-General or the Solicitor- General) or the Director of Public Prosecutions (“the DPP”)1 as a condition precedent to the institution of criminal proceedings. In preparing this paper, we have borne in mind the constitutional gravity of consent provisions – not only do they fetter the right of private prosecution, but also, by their nature, they impose an administrative burden on senior officials and cause an additional administrative delay within the criminal justice system. THE NEED FOR REVIEW 1.2 Although the use of consent provisions is not a recent development, their proliferation is. As we shall see in Part IV,2 although the first example is thought to date back to the early nineteenth century, it was not until the Second World War that consent provisions became widely used. We believe that the consents regime is a pressing and important subject for review. We hold this belief for a number of reasons. 1.3 First, the Royal Commission on Criminal Procedure (“the Philips Commission”), under the chairmanship of Sir Cyril Philips, noted that the wide-ranging list of Acts which included a consent provision suggested that “some of the restrictions ha[d] been arbitrarily imposed”;3 and in formulating proposals which eventually led to the Prosecution of Offences Act 1985, the Commission took the view that the creation of the Crown Prosecution Service (“the CPS”) provided the apposite moment for reviewing the consents regime and, noting that the DPP had said in evidence to the Commission that “the time was ripe for some rationalisation of the restrictions”,4 recommended that rationalisation should not be delayed.5 1.4 Second, notable former Law Officers have criticised the consents system. The former Attorney-General, Sir Reginald Manningham-Buller, later Viscount Dilhorne LC, whose formulation in 1958 of the underlying principles of the consent regime6 is regarded as “the classic exposition”,7 conceded that the regime 1 A number of officers or bodies have been given consent functions under a variety of different statutes. We are concerned only with those of the Law Officers and the DPP: see para 1.14 below. 2 See para 4.2 below. 3 Philips Report, para 7.56. 4 Ibid. 5 Ibid, para 7.57. 6 In a memorandum to the Select Committee on Obscene Publications, 1958, HC 123-1, App I, pp 23-4. 7 J Ll J Edwards, The Attorney General, Politics and the Public Interest (1984) p 26. 1 was “full of anomalies and even absurdities”.8 And Lord Simon of Glaisdale, a former Solicitor-General and a Law Lord, in his speech during the Second Reading of the Prosecution of Offences Bill in 1984, criticised the use of consent provisions as an erosion of the fundamental right to bring a private prosecution and referred to the list of offences requiring prior consent as “an absolute hotch- potch”.9 There has also been criticism by academic commentators such as J Ll J Edwards, author of The Law Officers of the Crown10 and The Attorney General, Politics and the Public Interest,11 who commented in 1964 that the proliferation of consents had made “substantial inroads into the much-acclaimed principle of the ordinary individual’s right to set the criminal law in motion. … It is difficult to escape the unpalatable conclusion that the fundamental principle as to private prosecutions has become so eroded by legislation that the vaunted image of this right as one of the corner stones of our constitution is no longer justified”.12 1.5 Third, not only can the consents system be criticised on grounds of constitutional principle but also on the more practical ground that it may cause delay in criminal proceedings and imposes an administrative burden, both of which features are unacceptable if the consent requirement, in a particular case, is unjustified. 1.6 Finally, previous efforts to effect rationalisation – albeit partial – have failed. Following a report of a working party set up under the auspices of the Law Officers’ Department and the DPP, in 1979 a Consents to Prosecution Bill was introduced into Parliament with the purpose of transferring functions from the Attorney-General to the DPP. The Bill failed to reach the statute book because a general election was called, and Parliament dissolved, before it had completed its passage through Parliament. THE OBJECTIVE OF THIS PROJECT 1.7 Having examined the consents regime and, not surprisingly, concluded that the criticisms made of it were substantial, we undertook to consider how it should be reformed. In pursuing this undertaking, we are grateful for the encouragement we have received from the Law Officers and the Legal Secretariat to the Law Officers. 1.8 Our initial task when we began this project was to attempt to identify all those Acts containing a provision which requires either a Law Officer’s or the DPP’s consent to the institution of criminal proceedings. We set these out in Appendix A.13 It became clear to us that those who regarded the consents regime as “an absolute hotch-potch”14 were quite right. 8 Select Committee on Obscene Publications, 1958, HC 123-1, App I, p 23, para 2. 9 Hansard (HC) 29 November 1984, vol 457, col 1050. 10 Published in 1964. 11 Published in 1984. 12 The Law Officers of the Crown (1964) p 397. 13 We have tried to ensure that the list is complete but we acknowledge that there may be omissions. 14 See n 9 above. 2 1.9 We took the view, however, that, although the long-term aim of a project such as this should be the effective reform of the consents regime, our immediate task should be to identify, first, whether or not a requirement of the consent of the Law Officers or the DPP was ever justified, and second, if it was, the principles determining whether or not a consent provision should be included or retained in any particular legislation. For this reason, the objective of this project is to identify guiding principles rather than to offer schedules of offences in regard to which, for example, a consent provision should be dispensed with or the consent function should be transferred. 1.10 Once we have considered the responses of consultees, we shall publish a report in the usual way. Unusually, however, given the nature of our objective, it is not our present intention to publish a draft Bill to accompany the report. Whereas we regard the formulation of guiding principles as a proper task for this Commission, putting those principles into effect is, we believe, in this particular case, a matter for the relevant Government department. 1.11 We at the Commission are frequently required to consider whether a proposed new offence should include a consent provision,15 and, like Parliament, we have hitherto considered the matter as and when it has arisen, without recourse to an established set of guidelines. In achieving our objective, therefore, we hope that both Parliament and the Commission will be assisted in taking a principled approach to the issue of consents, thereby bringing to an end the ad hoc and chaotic way in which consents tend to be dealt with at present. OUR APPROACH TO ACHIEVING THIS OBJECTIVE Setting the context 1.12 We begin our examination of the consents regime by setting it in context. In Part II, we briefly describe the prosecution process. We note that prosecutions are usually brought by the police and continued by the CPS but that they can, in some circumstances, be instituted by private individuals. We note also that, if the CPS is prosecuting, then the institution or continuation of proceedings is governed by the Code for Crown Prosecutors,16 which requires the prosecutor to apply what are called the “evidential test” and the “public interest test”.17 Should a Crown Prosecutor make a decision on whether or not to prosecute which departs from the Code, judicial review provides a remedy.18 1.13 We go on to consider the range of mechanisms, in addition to consent provisions, by which the institution or continuation of prosecutions can be controlled. These mechanisms include the prerogative power of the Attorney-General to terminate proceedings by entering a nolle prosequi and the statutory power of the DPP to 15 See, eg, Legislating the Criminal Code: Corruption (1997) Consultation Paper No 145, paras 10.2 – 10.15; Legislating the Criminal Code: Involuntary Manslaughter (1996) Law Com No 237, paras 8.63 – 8.66; and Legislating the Criminal Code: The Year and a Day Rule in Homicide (1995) Law Com No 230, paras 5.22 – 5.39. 16 Set out in Appendix C. 17 Described in greater detail at paras 2.16 – 2.17 below. 18 See para 2.24 below. 3 intervene in a private prosecution and terminate it by formal discontinuance, offering no evidence or withdrawing the proceedings. Later, in Part V, we also refer to the informal controls on private prosecutions provided by the deterrent effect of the cost of bringing the prosecution, the private prosecutor’s lack of investigative resources, and the risk of being found liable in the civil courts for malicious prosecution or false imprisonment. Scope of the project 1.14 As we shall see in Part III, the range of designated authorities specified in consent provisions runs far and wide: although in many cases that officer is either one of the Law Officers or the DPP, in other cases the officer may be the Secretary of State or, for example, the Industrial Assurance Commissioner.19 As we mentioned at the beginning of this Part, in this paper we are concerned only with those consent provisions requiring the consent of either one or other of the Law Officers or the DPP and no other authority.