Regina v Nicholas Azam Lalchan

A statutory requirement that criminal proceedings may be instituted only with the Attorney General’s consent takes effect according to Parliament’s intention, assessed from the statutory language, context, purpose and history. Where the requirement is expressly directed to the institution of proceedings and makes prior Law Officer consent a substantive safeguard, consent is a condition precedent to valid proceedings.

Consent obtained after conviction cannot cure the defect. Fairness and prejudice are relevant only if construction shows that Parliament did not intend non-compliance to invalidate the act done. A conviction obtained on proceedings instituted without the required prior consent is unsafe and must be set aside.

Regina v Nicholas Azam Lalchan concerned a conviction at the Central Criminal Court for stirring up racial hatred contrary to section 18(1) of the Public Order Act 1986. The count had been added to the indictment and the jury convicted the appellant, but the Attorney General’s consent required by section 27(1) had not been obtained before its institution.

The omission was discovered after conviction and before sentence. A purported consent was then given on the Attorney General’s behalf. The appellant appealed, contending that the conviction had to be quashed; the Crown contended that the omission was a curable procedural error. The central issue was Parliament’s intended consequence of instituting proceedings without the required prior consent.

1. The appeal was allowed. Section 27(1) of the Public Order Act 1986 is expressed in imperative terms and expressly prohibits the institution of proceedings without the Attorney General’s consent. Its natural meaning is that proceedings instituted without prior consent are invalid. The later purported consent could not validate the count or the resulting conviction.

2. The controlling inquiry in cases of non-compliance with a statutory procedural requirement is Parliament’s intention. The court applied the approach in Sekhon [2002] EWCA Crim 2954 and Soneji [2005] UKHL 49. Labels such as “procedural” and “jurisdictional” do not determine the consequence. Nor is there a general modern rule that fairness or prejudice alone governs validity. Those matters arise only where construction shows that Parliament did not intend invalidity.

3. Here, the language, legislative context and purpose all showed that prior Law Officer consent was a condition precedent. Section 25(2) of the Prosecution of Offences Act 1985 expressly preserves arrest and remand without consent. That limited validation reinforced the inference that other steps were not validated. The consent safeguard protects against an undesirable prosecution, not merely an undesirable conviction, in an area engaging important public-policy and freedom-of-expression considerations. The conviction on count 5 was therefore unsafe and was set aside.

4. The invalidity was confined to count 5 and did not invalidate all the Crown Court proceedings. Since valid consent had subsequently been obtained and was not challenged, the court directed the issue of a writ of venire de novo, enabling a fresh trial on that count.

• Court of Appeal (Criminal Division): Allowed the appeal in [2022] EWCA Crim 736, set aside the conviction for the section 18(1) offence under the Public Order Act 1986, and directed a writ of venire de novo.

• Central Criminal Court: On 22 September 2021, the jury convicted the appellant of stirring up racial hatred. The Attorney General’s consent required before institution of that count had not been obtained.