CW and MM, R. v

Where proceedings for an offence require the Attorney General’s consent under Criminal Law Act 1977, consent must be obtained before the proceedings are instituted. Section 25 of the Prosecution of Offences Act 1985 does not cure a failure to comply with that requirement. It only permits the necessary steps of arrest, charging and remand before consent is obtained.

A Crown Court preliminary hearing directed to identifying plea intentions is not protected by that limited saving. By that stage, at the latest, proceedings have been instituted. Proceedings commenced without the required consent are null and void.

The Crown brought an interlocutory appeal against a ruling of the judge at Liverpool Crown Court that the indictment and proceedings were null and void. CW and MM had been charged with conspiracies to supply diamorphine and cocaine outside England and Wales. The relevant conspiracy charge required the Attorney General’s consent under the Criminal Law Act 1977.

The defendants had been sent to the Crown Court and preliminary hearings had occurred before consent was granted. Consent was then granted, and an indictment was served. The issue remaining on the appeal concerned CW and count 2: whether consent had been obtained too late, or whether the earlier hearings were protected by section 25 of the Prosecution of Offences Act 1985.

1. Appeal dismissed. The Crown’s application was rejected. The judge was right to hold that the required Attorney General’s consent had been obtained too late and that the proceedings were null and void.
2. Criminal Law Act 1977, section 4 is the primary and mandatory provision. It requires consent before proceedings are instituted. Section 25 of the Prosecution of Offences Act 1985 cannot override that requirement or save proceedings commenced without consent. Its confined function is to permit lawful arrest, charging and remand in custody or on bail where consent has not yet been obtained.
3. The court applied R v Lambert [2009] EWCA Crim 700. The statutory saving does not extend to substantive steps in the prosecution. It is directed to necessary custodial and charging measures, rather than curing a failure to obtain consent before the prosecution proceeds.
4. Proceedings had been instituted no later than the preliminary hearing. They might already have been instituted when the charge was entered on the court register or when CW was sent for trial. In any event, a preliminary or early guilty plea hearing has plea clarification as an essential purpose. It is not a protected administrative formality merely because no formal plea can yet be entered.
5. The court observed that modern criminal procedure allows little time between arrest, sending and an early guilty plea hearing. Any difficulty this creates in securing consent cannot justify enlarging section 25. The court suggested that the statutory scheme might merit legislative attention, but its duty was to apply the law as it stood.

• Court of Appeal (Criminal Division): The Crown’s interlocutory appeal was dismissed. The court upheld the conclusion that consent under the Criminal Law Act 1977 had been obtained too late.
• Liverpool Crown Court: At a preparatory hearing on 13 April 2015, His Honour Judge Watson QC ruled that the indictment and proceedings were null and void because Attorney General’s consent had not been obtained in time. On 15 April 2015, he refused the Crown leave to appeal.