cp149 Consents to Prosecution consultation - Law Commission

PART III
THE AUTHORITIES WHOSE CONSENT IS
REQUIRED, AND OTHER PROCEDURAL
MATTERS
1.1 In this Part we consider which officers have authority to grant or refuse consent to
prosecution, and we set out the constitutional functions of the Law Officers and
the DPP. We describe the practical operation of consent provisions – the principles
applied in exercising the power of consent, the form consent should take and the
time when consent must be given. Finally, we examine whether the decision to
grant or refuse consent is amenable to judicial review.
WHOSE CONSENT?
1.2 A variety of offences require the consent of a designated officer or body 108
before
proceedings can be instituted. As we said in Part I, in many cases that officer is
either one of the Law Officers (the Attorney-General or the Solicitor-General) or
the DPP; in other cases, the officer may be the Secretary of State or, for example,
the Industrial Assurance Commissioner 109
or the Commissioners of Customs and
Excise. 110
In this paper we confine our examination to those consent provisions
requiring the consent of either one or other of the Law Officers or the DPP.
The Law Officers
1.3 The Law Officers consist of the Attorney-General and the Solicitor-General.
Unlike the office of the DPP, which was created by statute, 111
the offices held by
the Law Officers arose by royal decree. 112
Historical background
1.4 The origin of the office of Attorney-General can be traced back to the thirteenth
century when, as King’s Attorney or King’s Serjeant, the office holder was
responsible for maintaining the interests of the sovereign in the royal courts. 113
The
modern office of Solicitor-General originated in 1461. 114
Although since the early
part of the seventeenth century both the Attorney-General and the Solicitor-
General were entitled to sit in the House of Commons, “until well into the
nineteenth century the generally accepted interpretation of a Law Officer’s
108 Eg Housing Associations Act 1985, s 27(4) and s 30(6), which specifies the consent of the
Housing Corporation.
109 Insurance Companies Act 1982, ss 93(a) and 94(2).
110 Criminal Justice (International Co-operation) Act 1990, s 21(2)(a).
111 POA 1879.
112 J Ll J Edwards, The Law Officers of the Crown (1964) p 2.
113 Ibid, p 3.
114 Sir John Sainty, A List of English Law Officers, King’s Counsel and Holders of Patents of
Precedence (1987) p 59.
20