cp149 Consents to Prosecution consultation - Law Commission

The Attorney-General concluded that offences relating to obscene publications fell
within none of the specified categories and their prosecution should not, therefore,
be constrained by any consent requirement, whether that of the Attorney-General
or the DPP. 216
1.5 In a speech made at the Report stage of the Obscene Publications Bill in 1959, 217
the Attorney-General 218
argued against an amendment requiring the consent of the
DPP to the institution of criminal proceedings under the provisions of that Bill. In
the course of his speech, relying on his memorandum to the Select Committee, he
set out three grounds in favour of departing from the “fundamental principle of
English law that proceedings may be instituted by private individuals”. 219
These
grounds for an Attorney-General’s consent provision, which in his speech he
described as “bad grounds”, 220
were
(1) “to secure uniformity in the administration of the law”; 221
(2) to prevent vexatious proceedings; 222
and
(3) to restrict prosecutions in circumstances where a law has, necessarily, been
drafted in broad terms, thereby creating the risk that it would catch those
who had not offended against the spirit of the legislation. 223
The Home Office memorandum to the Franks Committee in 1972
1.6 Based on the Attorney-General’s submission to the Select Committee on Obscene
Publications, guidance as to the reasons for including a consent provision can also
be found in a Home Office memorandum to the Departmental Committee on
section 2 of the Official Secrets Act 1911 224
(“the Home Office memorandum to
the Franks Committee”). According to that memorandum, “the basic reason for
including in a statute a restriction on the bringing of prosecutions is that otherwise
there would be a risk of prosecutions being brought in inappropriate
circumstances”. 225
Five overlapping reasons were given for considering the
inclusion of a consent requirement:
216 Report of the Select Committee on Obscene Publications, 1958, HC 123-1, App 1, p 24,
paras 9 and 10.
217 Hansard (HC) 24 April 1959, vol 504, cols 839-846.
218 Sir Reginald Manningham-Buller.
219 Hansard (HC) 24 April 1959, vol 504, col 840.
220 Ibid, col 841.
221 Ibid.
222 Ibid, col 843.
223 Ibid, cols 843-4.
224 Report of the Departmental Committee on Section 2 of the Official Secrets Act 1911
(1972) Cmnd 5104 (“the Franks Report”). A prosecution under s 2 of the 1911 Act also
requires the consent of the Law Officers.
225 Home Office memorandum to the Franks Committee, Franks Report, vol 2, p 125, para 7.
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