Walker, R v

A charging decision made by a Crown prosecutor under the statutory charging procedure, after determining that the evidence justifies a charge and notifying the police of the selected offence, amounts to the Director of Public Prosecutions’ consent for the purposes of section 4(4) of the Criminal Law Act 1967. A later written consent is surplusage.

An asserted nullity in proceedings against a co-accused does not itself invalidate other counts. A substantially late application to appeal against conviction requires a substantial injustice. No extension should be granted where the alleged procedural defect caused no material prejudice and the conviction remains safe.

The applicant had been convicted of murder at the Central Criminal Court and sentenced to life imprisonment with a minimum term of 27 years. More than six years later, he applied for an extension of time and leave to appeal against conviction.

His principal ground alleged that proceedings against a co-accused for assisting an offender were a nullity because the Director of Public Prosecutions’ consent was supposedly obtained after that co-accused had been sent for trial. He contended that the co-accused’s presence on the indictment prejudiced his defence. A second ground challenged evidence of the applicant’s previous conviction and cautions.

The central issue was whether the earlier charging decision by a Crown prosecutor supplied the necessary consent and, if not, whether any defect rendered the applicant’s conviction unsafe.

1. The court refused an extension of time and dismissed the application for leave to appeal against conviction.

2. Section 4(4) of the Criminal Law Act 1967 is satisfied where proceedings are instituted by the Director of Public Prosecutions, or by another person with the Director’s consent. A separate consent is therefore unnecessary if the Director institutes the proceedings. Under section 37B of the Police and Criminal Evidence Act 1984, a Crown prosecutor’s decision that there is sufficient evidence, selection of the charge, and notification to the police either institutes proceedings or necessarily constitutes consent to their institution.

3. On 4 August 2007 a Crown prosecutor reviewed the evidence, identified assisting an offender as the proper charge, and instructed the police accordingly. That was valid consent before the later sending to the Crown Court. The written consent of 10 October was surplusage. The court therefore did not need to decide precisely when proceedings were instituted under the modern procedural scheme considered in R v Welsh & ors [2016] 1 Cr App R 9.

4. In any event, a want of consent would invalidate only the affected count, not the whole indictment: see R v McGrath [2013] EWCA Crim 1261. The evidence against the applicant was robust. The co-accused’s evidence was broadly supportive of the applicant’s accidental-discharge account, and the limited discrepancy did not make the verdict unsafe. No substantial injustice justified extending time.

5. The bad-character ground had no merit. The applicant had introduced the material himself, and the judge directed the jury to disregard it. It could not have rendered the conviction unsafe.

• Court of Appeal (Criminal Division): Refused an extension of time and dismissed the application for leave to appeal against conviction: [2016] EWCA Crim 751.
• Central Criminal Court: The applicant was convicted of murder on 15 January 2009 and sentenced to life imprisonment with a minimum term of 27 years, less time spent on remand.