cp149 Consents to Prosecution consultation - Law Commission

1.9 As we shall see when we consider the criticisms of the present regime below, 231
the
Franks Committee, having regard to the Attorney-General’s particular
constitutional position, identified this as the source of the Attorney-General’s
particular contribution to the proper prosecution of offences under the consents
regime.
Specific examples of consent provisions
1.10 We now consider some specific examples of consent provisions and the reasons
why they were thought necessary.
War Crimes Act 1991
1.11 Following the report of the War Crimes Inquiry, 232
the War Crimes Act 1991 was
passed. It provides that proceedings for murder, manslaughter and culpable
homicide may be brought against a person in the United Kingdom, irrespective of
that person’s nationality at the time of the alleged offence, if the offence (a) was
committed during the Second World War in either Germany or territory under
German occupation, and (b) constituted a violation of the laws and customs of
war. 233
1.12 In recognition of the particular sensitivity of the subject matter of the offences and
the particular difficulty of ensuring fairness, the 1991 Act makes provision for
various safeguards, including the requirement that any proceedings brought by
virtue of the Act should be by or with the consent of the Attorney-General. 234
Law Reform (Year and a Day Rule) Act 1996 235
1.13 On the recommendation of the Law Commission 236
and the House of Commons
Home Affairs Select Committee, the year and a day rule in homicide was
abolished without replacement by the Law Reform (Year and a Day Rule) Act
1996. In our report, Law Com No 230, we acknowledged that repeal of the rule
would give rise to two particular difficulties: 237
(1) an increase in the number of cases in which a considerable period of time
had lapsed between the incident which had caused the death of the victim
and the institution of criminal proceedings in relation to that incident, and
(2) an increase in the number of cases in which a defendant would be exposed
to the risk of prosecution for a homicide offence despite having already
231 In Part V.
232 Report of the War Crimes Inquiry (Members: Sir Thomas Hetherington KCB CBE TD QC
and William Chalmers Esq CB MC) Cm 744, published in July 1989.
233 War Crimes Act 1991, s 1(1).
234 War Crimes Act 1991, s 1(3).
235 At para 7.12 below, we set out the reasons why we no longer consider it necessary for the
Law Reform (Year and a Day) Act 1996 to include a consent provision.
236 Legislating the Criminal Code: The Year and a Day Rule in Homicide (1995) Law Com No
230.
237 See Law Com No 230, paras 5.1 – 5.2.
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