cp149 Consents to Prosecution consultation - Law Commission

application for his consent, is whether the particular case falls within
the ambit of the mischief at which the Act is directed. 169
1.26 Edwards also suggests, however, that even if it were decided that there was a prima
facie case against the accused and the case fell within the mischief of the Act, the
Law Officer’s consent should not be given automatically; rather, expediency, by
which is meant “the public interest at large”, should also be put in the balance. 170
This accords with the evidence of the Attorney-General to the Select Committee
on the Official Secrets Acts:
[W]here Parliament provides that the fiat of the Attorney-General or
the Lord Advocate is a condition precedent to a prosecution taking
place, it is not their business to get a prosecution. It is their business to
exercise their discretion to the best of their ability, it being clear from
the fact of their consent being necessary that this is a case where
Parliament thinks it particularly important that a discretion should be
exercised and that prosecutions should not automatically go forward
merely because the evidence appears to afford technical proof of an
offence. 171
And it also accords with comments by Lord Frazer of Tullybelton in Gouriet v
Union of Post Office Workers: 172
It is well-established that [the Attorney-General] is not bound to
prosecute in every case where there is sufficient evidence, but that
when a question of public policy may be involved the Attorney-
General has the duty of deciding whether prosecution would be in the
public interest.
1.27 In a memorandum submitted by the Attorney-General to the Franks Committee,
dated September 1971, it was suggested that, in deciding whether to grant or
refuse consent to a prosecution under the Official Secrets Acts, an Attorney-
General would consider the following factors: 173
(1) the strength of the evidence; 174
(2) the degree of culpability of the potential defendant;
169 Ibid, p 245.
170 Ibid, p 246.
171 Report of the Select Committee on the Official Secrets Act, 1939, HC Paper 101, Minutes
of Evidence, p 15, Q 69.
172 [1978] AC 435, 523G.
173 Memorandum submitted by the Attorney-General (September 1971) to the Franks
Commitee, para 15.
174 Evidential sufficiency, as a precondition of consent, is illustrated by the case of R v Solicitor-
General, ex p Taylor, The Times 14 August 1995 (see para 3.31) in which the Solicitor-General
decided against instituting proceedings under the Contempt of Court Act 1981 on the
ground that “proceedings for contempt against the newspapers would be unlikely to
succeed. He therefore decided that it was not an appropriate case for such proceedings”: per
Stuart-Smith LJ at p 12 of the transcript (case no: CO 2117-94).
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