cp149 Consents to Prosecution consultation - Law Commission

My only question on it is the considerable erosion that has taken place
in that fundamental principle. I have here the Prosecution of Offences
Regulations 1978, which give the various exceptions where the consent
of the Attorney-General, of the Law Officers or of the Director is
required. It is an absolute hotch-potch. When, very long ago, I was a
Home Office Minister I asked the officials to explain to me the
animating principle, and they were quite incapable of doing so. When I
joined the Law Officers’ Department, I again asked the same question
there, but with no more result. Since then, the only guide that I have
been able to get is that each curtailment of private right to
prosecution, or each attempt to do so, seems to have been based on a
desire to inhibit Mrs Whitehouse from taking action in relation to an
offence which might disturb her. But I would ask the noble Lord to tell
us, if he can, on what principle the right of private prosecution is now
eroded; and your Lordships will probably wish to be satisfied, before
passing from Clause 6, that the whole system is rationalised and not
left as it is as just a hotch-potch. 306
In his closing speech, the Minister of State for the Home Office, Lord Elton, was
unable to answer Lord Simon’s point. 307
1.33 A number of other commentators have also noted that, despite the theoretical
justification for the consents regime, in practice it is full of anomalies. For
example, the Philips Commission in 1981 said in its report:
The rationale for imposing such restrictions was given in the Home
Office Memorandum to the Departmental Committee on section 2 of
the Official Secrets Act 1911 but the reasons given there do not seem
to be the basis of any coherent policy and an examination of the Acts
concerned suggests that some of the restrictions have been arbitrarily
imposed. 308
1.34 In the Home Office memorandum to the Franks Committee, it was acknowledged
that “[s]urviving records … would not support any thesis that there was a firmly
established general policy which had been closely adhered to over the years.” 309
1.35 Speaking in favour of a legislative attempt to rationalise the consent regime in
1979, 310
the Attorney-General 311
explained:
The reasons for these [consent] provisions seem to have been many
and various. In some instances they seem to have been the result of
some parliamentary whim, the cause of which is lost in history. 312
306 Hansard (HL) 29 November 1984, vol 457, col 1050.
307 Ibid, col 1068.
308 Philips Report, para 7.56 (footnote omitted).
309 Franks Report, vol 2, p 125, para 6.
310 Consent to Prosecution Bill 1979. For further details, see paras 7.20 – 7.25 above.
311 Rt Hon Sam Silkin QC MP.
312 Hansard (HC) 14 March 1979, vol 964, col 657.
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