Welsh (Snr) & 17 Ors, R v (Rev 1)

For an indictable-only offence requiring the Attorney General’s consent, proceedings are instituted when the accused is sent to the Crown Court under section 51. Consent must therefore precede sending. Entry of the charge in the magistrates’ court register is an administrative step protected by section 25(2) and does not itself institute proceedings.

An out-of-time challenge to convictions affected by late consent requires substantial injustice. A later judicial clarification of unchanged statutory law is not a change of law. Where consent was obtained before arraignment, the convictions followed fair proceedings, and a timely objection would merely have led to properly instituted proceedings, an extension of time will ordinarily be refused.

Seventeen applicants sought very late extensions of time to appeal convictions arising from two Liverpool investigations into large-scale conspiracies to supply class A drugs. A further applicant, Gordon S, had previously pursued an appeal but renewed his application after it emerged that the Attorney General’s consent had never been sought in his case.

In the other cases, consent required because the conspiracies had a Scottish cross-border element was obtained only after the cases had been sent to the Crown Court and preliminary hearings had occurred, but before indictment and arraignment. The applicants contended that the proceedings were nullities. The central issues were when proceedings are instituted for an indictable-only offence, and whether the resulting defect justified exceptionally long extensions of time.

1. The court refused the 17 applications for extensions of time. It adjourned Gordon S’s renewed appeal for further submissions because the Attorney General’s consent had never been obtained in his case.
2. Under Criminal Law Act 1977 section 4, where consent is required, it must be obtained before an indictable-only case is sent to the Crown Court under section 51 of the Crime and Disorder Act 1998. The entry of a charge on the magistrates’ court register is merely an administrative consequence of charge and remand. It falls within the limited protection in section 25(2) of the Prosecution of Offences Act 1985 and does not institute proceedings.
3. A section 51 sending is not merely administrative. It gives the accused a formal opportunity to indicate an intended guilty plea, affects case-management directions, and is expressly described as “proceedings” by section 52(5). The magistrates’ court may adjourn under that provision while consent is obtained. The court therefore rejected the practice of treating consent obtained only before a preliminary hearing or plea and case management hearing as timely.
4. The proceedings before consent should, if challenged before conviction, have been treated as nullities. However, consent was obtained before arraignment in every case except S’s. The subsequent pleas, trials, convictions and sentences were fair and unimpeachable. A timely challenge would have resulted in properly instituted proceedings and substantially the same convictions.
5. Section 18 of the Criminal Appeal Act 1968 gives a broad discretion to extend time, exercised according to the interests of justice. The court must consider finality, efficient administration, the merits of the proposed appeal, and any injustice to the applicant. The decisions in R v Lambert [2010] 1 WLR 898 and R v CW & MM [2015] EWCA Crim 906 clarified the unchanged law; they did not change it. No applicant established substantial injustice. The long extensions were therefore refused.

• Court of Appeal (Criminal Division): Refused 17 applications for extensions of time to seek leave to appeal against conviction. Gordon S’s renewed application was adjourned because consent had never been sought in his case.
• Liverpool Crown Court: The applicants were convicted of, or pleaded guilty to, conspiracies to supply class A drugs. In the cases other than S’s, Attorney General consent was obtained after sending to the Crown Court but before arraignment.