cp149 Consents to Prosecution consultation - Law Commission

delegation brought about by the 1985 Act. Explaining the structure of the (then)
recently created CPS, he said of Crown Prosecutors: “despite being the lowest
grade of legally qualified staff [they] have all the powers which until 1986 could
only be exercised by the Director of Public Prosecutions and his Assistant
Directors”. 155
The relationship between the DPP and the Law Officers
1.21 Since the DPP acts “under the superintendence” of the Attorney-General, the
Attorney-General is answerable to Parliament for the actions of the DPP. In a
Home Office memorandum written in 1972 156
it was suggested that there was
substantial consultation between the Attorney-General and the DPP when either is
required to consider whether to consent to criminal proceedings:
It is the Director’s practice to consult the Attorney-General on cases of
special importance or difficulty even where there is no legal
requirement for the Attorney to be involved. Cases in which the
Attorney-General’s fiat for a prosecution is required are considered by
the Director of Public Prosecutions, and the Attorney-General takes
his decision only after he has received the Director’s advice. In a
proportion of cases where the Director’s consent to prosecution is
required he consults the Attorney-General before taking his decision.
The practical difference between a control over prosecutions exercised
by the Attorney-General and one exercised by the Director of Public
Prosecutions is that, in the latter case, the Director decides
straightforward cases himself without reference to the Attorney-
General. 157
1.22 Since the inception of the CPS and the consequent delegation of the DPP’s power
of consent to Crown Prosecutors, the practice has, we understand, 158
changed to a
degree. Most applications for the Attorney-General’s consent to prosecution are
sent directly from CPS central casework to the Attorney-General without the
intervention of the DPP. This shift away from the centre is likely to continue in
that the recently proposed devolution of the CPS 159
may well see the lines of
communication developing between the Law Officers and the CPS areas (rather
than the central administration).
Examples of provisions requiring the consent of the DPP
1.23 Blackstone suggests that the principle underlying the various offences the
prosecution of which requires the consent of the DPP “may be that, in each
instance, although sometimes for different reasons, the weighing of the
155 The Case for the Crown (1987) p 98. The author is the BBC’s Legal Correspondent for News
and Current Affairs.
156 Further memorandum by the Home Office on the control of prosecutions by the Attorney-
General and the Director of Public Prosecutions (April 1972) submitted to the
Departmental Committee on s 2 of the Official Secrets Act 1911 (“the Home Office
Memorandum to the Franks Commitee”).
157 Ibid, para 5.
158 From correspondence with the Legal Secretariat to the Law Officers.
159 See para 2.13 above.
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