Failing to seek permission – a salutary tale
Before applying for a summons, every private prosecutor needs a checklist to ensure compliance with the required formalities. Chief amongst these considerations will be the securing of any necessary consent to the prosecution, for example from the Attorney General or the Director of Public Prosecutions. It might be thought that this was an unmissable step but history suggests otherwise. Moreover, the consequences of failing to take it are grave, as the Court of Appeal recently spelled out in R v Lalchan  EWCA Crim 736.
The defendant in that case was convicted of using threatening, abusive or insulting words or behaviour, or displaying written material which was threatening, with intention to stir up racial hatred, contrary to s.18(1)(a) of the Public Order Act 1986. The prosecution of that offence requires the consent of the Attorney General, as set out in s.27 of the Act:
27.— Procedure and punishment.
(1) No proceedings for an offence under this Part may be instituted in England and Wales except by or with the consent of the Attorney General.
Between the date of conviction and the date set for sentence, it came to the attention of the CPS (which had brought the case) that the AG’s consent had not been sought before the defendant had been charged. The CPS therefore sought consent at that point, which the AG purported to give.
On appeal, the defendant argued that, in order to be valid, consent had to be granted prior to the institution of proceedings. For its part, the Crown submitted that the breach was merely procedural in nature rather than jurisdictional, in that it cannot have been Parliament’s intention for the whole proceedings to be nullified in the event that prior consent was not obtained. The Crown further submitted that the focus these days should be on the fairness of the trial rather than on technicalities and that the public interest in proceedings is satisfied where consent is given by the AG at any stage of the process.
A heavyweight five member Court of Appeal (headed by the Lord Chief Justice) heard the appeal. In preferring the defence submissions, the Court gave particular weight to the mandatory nature of the language in s.27 and the purpose of prior consent being obtained in the context of the 1986 Act (namely that the offence in s.18 concerned public policy considerations, balancing the right of minority groups against the right to freedom of expression). The conviction was therefore quashed.
This is the outcome which a private prosecutor can therefore also expect if any necessary consent is not obtained prior to the defendant being summonsed. In that light, two further points arise for consideration. The first is that the prosecutor may well be liable for the wasted costs of the first trial. In his judgment, Burnett CJ referred to the failure to obtain consent as ‘a very serious and regrettable failing’ and it seems likely that the test in s.19 of the Prosecution of Offences Act 1985 would be met on any defence application for costs.
Secondly, in the Lachlan case, the court was willing to issue a writ of venire de novo, such that the defendant could be re-tried on the count where consent had been required. This is a discretionary remedy however and there is no guarantee that the court will indulge a prosecutor in this way, particularly perhaps a private prosecutor in relation to whom the prior need for consent is all the more acute and whose case is more likely to engage personal interests than proceedings brought by the CPS. The upshot therefore of failing to obtain consent could be no conviction, no opportunity to try the defendant again and a large bill for costs. Time to re-visit that checklist!