Lambert, R v

Where prosecution requires consent under Terrorism Act 2000, proceedings must not be instituted before the required consent and any necessary permission have been obtained. The limited exception in section 25(2) of the Prosecution of Offences Act 1985 permits arrest, charging and remand before consent. It does not permit a plea-before-venue hearing.

A plea-before-venue hearing is a substantive stage. The charge is put to the defendant and a guilty indication is treated as a guilty plea. Proceedings are in any event instituted no later than entry of the charge on the court record. The statutory consent requirement was therefore breached where that hearing occurred before the Attorney General's permission.

The appellant was charged under section 12 of the Terrorism Act 2000 with assisting or arranging a meeting to support the LTTE, a proscribed organisation. Before the Attorney General gave permission for the Director of Public Prosecutions to consent to the prosecution, he attended a plea-before-venue hearing for the either-way offence.

At Kingston Crown Court, Saunders J held that the hearing was a procedural step permissible before consent. The appellant appealed. The issue was whether the proceedings had been properly instituted, having regard to section 117 of the Terrorism Act 2000 and section 25 of the Prosecution of Offences Act 1985.

1. Appeal allowed. The Attorney General's permission, required before the Director of Public Prosecutions could consent, had not been obtained before the proceedings were instituted. Section 117 of the Terrorism Act 2000 therefore barred institution of the prosecution at that stage.

2. Proceedings were instituted no later than 28 June 2007, when the appellant, having been charged, was brought before the magistrates' court and the charge was entered on the court record. The ordinary meaning of instituting proceedings is commencing them. Context and statutory purpose did not justify treating institution as occurring only when a substantive event later took place.

3. A plea-before-venue hearing under section 17A of the Magistrates' Courts Act 1980 is not equivalent to a remand hearing. The accused is asked to indicate a plea. A guilty indication is deemed to be a guilty plea at a summary trial and may lead to sentence or committal for sentence. The procedure is therefore beyond the formalities of charging and ensuing remands.

4. Section 25(2) of the Prosecution of Offences Act 1985 is confined to arrest, warrants and remand in custody or on bail before the requisite consent. It permits no further step. The earlier authorities, properly read through the statutory language rather than their descriptive phrases, did not extend the exception to a plea-before-venue hearing.

5. The court did not decide the general consequences of commencing proceedings without consent. In this case the Crown Court could reconstitute itself as a magistrates' court and hold a fresh plea-before-venue hearing.

• Court of Appeal (Criminal Division): Allowed the appeal in [2009] EWCA Crim 700, holding that the plea-before-venue hearing occurred after proceedings had been instituted and before the required permission had been obtained.

• Kingston Crown Court (Saunders J): At a preparatory hearing, held that the plea-before-venue hearing was a procedural step permitted before the Attorney General's permission and the Director's consent.