cp149 Consents to Prosecution consultation - Law Commission

Criminal proceedings
1.8 In addition to the power to grant or refuse consent to certain prosecutions, the
main functions of the Attorney-General, in regard to criminal proceedings, include
instituting and conducting prosecutions of exceptional gravity or complexity (and
occasionally appearing in court for the prosecution in such cases), terminating a
prosecution by entering a nolle prosequi, issuing guidelines on prosecution practice,
and appointing 122
and acting as superintendent 123
of the DPP. 124
Civil relator actions
1.9 It is in the interest of the Crown, as parens patriae, to uphold the law for the
general public benefit, and the relator action is a device by which the Crown’s
procedural privileges have been made available to private plaintiffs. A relator action
may be brought against a public authority that is acting, or threatening to act, ultra
vires; and equally it may be brought against any private individual or body
committing a public nuisance or otherwise violating public law.
1.10 Although a private individual will have standing to restrain a breach of public law
where the interference with the public right involves some interference with private
rights (or, perhaps, where that individual is threatened with special damage over
and above that which the wrong inflicts on the rest of the public), 125
in all other
cases only the Attorney-General can institute proceedings to vindicate public
rights. The Attorney-General can act independently, but in practice he usually acts
at the relation (that is, at the instance) of a private individual. A court can always
hear cases brought at the instance of the Attorney-General, because the Crown
will always have standing for this purpose, whereas a private plaintiff might be
refused relief on the ground that he or she had no more interest in the matter than
any other member of the public. 126
1.11 Before the Attorney-General will accept the relator action, the relator must certify
that the statement of claim is proper for the Attorney-General’s acceptance and
that the relator will be responsible for costs. Once the Attorney-General has
accepted, the actual conduct of the proceedings is then in the hands of the
relator. 127
The decision as to whether or not to lend his name to an action is
entirely within the discretion of the Attorney-General. 128
122 POA 1985, s 2.
123 POA 1985, s 3(1).
124 Blackstone, para D2.36.
125 S de Smith and R Brazier, Constitutional and Administrative Law (6th ed 1989) p 595, citing
Boyce v Paddington Corporation [1903] 1 Ch 109 as authority.
126 “By lending his name for this purpose the Attorney-General enabled the injunction and
declaration, which were basically remedies for the protection of private rights, to be
converted into remedies of public law for the protection of the public interest. They thus
acquired a hybrid character even before the reforms of 1977”: Wade and Forsyth,
Administrative Law (7th ed 1994) p 601.
127 Eg, it is up to the relator to instruct solicitor and counsel.
128 London County Council v A-G [1902] AC 165, 169.
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