"Consents to Prosecution" (Hansard, 22 November 1999)

The Solicitor-General

We are grateful to the Law Commission for a very careful and thorough report. The proposals contained in the report are accepted in principle, subject to the following points. There is a clear need for rationalisation of the consent provisions which attach to certain criminal offences. In particular, the separation of investigation and prosecution effected by the establishment in 1986 of the Crown Prosecution Service reduces the need for consent provisions. The careful analysis of the consent regime, the justification for its existence and the way in which it has been applied to a wide variety of offences provides a useful basis for further work, which the Law Commission identifies.

The Government recognise that the current consent requirements are in need of reform and agree with the Law Commission's view that a consent provision must attach to a particular offence not to a particular defendant or class of defendants.

The Government share the Law Commission's view that further consideration will need to be given to the categories of case in which consent should be required. The categories set out in the report create a useful guide for analysing the offences which require consent, and 24W these will need to be applied flexibly. In particular, the Government wish to leave open the possibility of requiring consent provisions where reasons of public policy make this appropriate. The Law commission recognises that the category which relates to controlling the prosecution of offences where the prosecution of offences Where the prosecution may violate convention right may not be confined to Article 6 cases, and that further consideration will be required. The report acknowledges that further work will need to be carried by the Legal Secretariat to the Law Officers aimed at identifying the scope of the necessary reform.

The Government welcome the Law Commission's view that some consent provisions should be retained. It may be appropriate at some future date to examine more widely the issues concerning the ability to bring private prosecutions.

The Government recognise the importance of the DPP's role in relation to taking over proceedings and discontinuance but, as the Law Commission acknowledges, there are a large number of designated authorities specified in consent provisions. Further consideration will need to be given to the position of the DPP in relation to those other prosecutors.

The Government welcome the proposal that, as regards existing legislation, provision should be made to enable, in appropriate cases, transfer of consent provisions by statutory instrument; and as regards future legislation, provision should be made to enable transfer of consent provisions by statutory instrument. Such statutory instruments will be made under the affirmative resolution procedure to facilitate scrutiny.

As acknowledged in the report, the report concentrates on guiding principles, and further work will need to be done before changes can be made to the existing consent provisions.

Work will begin on:

(a)identification of all the offences which require DPP or Law Officers' consent;
(b) further consideration of the scope of the first category, concerning possible violation of convention rights;
(c) further consideration of the position of the DPP in relation to other prosecutors including other Government Departments and agencies who are designated prosecutors;
(d) consideration of which consent provisions should be retained, applying in a flexible way the criteria set out in the Commission's report.

With regard to future proposals to create consent provisions, the Government's policy will be informed by the criteria set out in the report.

The Government accept this is an area in which change is needed and will bring forward legislation when parliamentary time allows.