R v CM, R v MM

Failure to obtain the Attorney General’s consent

CW and MM were charged, with other individuals, on counts 1 and 2 of an indictment containing 8 counts. Counts 1 and 2 were conspiracies to supply diamorphine and cocaine to persons unknown outside of England and Wales, contrary to s.1, 1A and 3 of the Criminal Law Act 1977. The consent of the Attorney General was needed in order to initiate a prosecution, in accordance with section 4 of the Criminal Law Act 1977. However, proceedings were initiated before the Attorney General gave his consent and two preliminary hearings took place; for MM on the 31st October 2014 and for CW on the 13th November 2014. All parties were aware consent had not been obtained and no indictment was preferred at the hearings.

An application for consent was received by the Attorney General on the 6th November 2014 and consent was granted on the 1st December 2014.

The plea and case management hearing was on the 23rd January 2015, and MM pleaded guilty to both counts. CW plead guilty to count 1 and not guilty to count 2. On the 13th April 2015, the judge ruled that the indictment and proceedings were null and void because consent had not been obtained in time. The Crown applied for permission to appeal against the judge's ruling.
The issue was whether the Crown was able to rely on section 25 of the Prosecution of Offence Act 1985. This provides that a failure to obtain consent would not prevent the defendant's remand in custody or on bail. On the 15th April 2015 leave to appeal was refused.
The Crown's application for leave to appeal the judge's ruling as to CW and Count 2 was referred by the Registrar.

Held: The application was refused. Section 4 of the 1977 Act explicitly stated that consent had to be obtained before proceedings were commenced and if that did not take place the proceedings were null and void. It was not possible for section 25 to take precedence and effectively override section 4. Section 25 allowed for the lawful arrest, charging and remand in custody or on bail of a person even though consent had not been obtained. Section 25 did not address the problems that were created by a failure to comply with section 4. There were three occasions on which the proceedings could have been, or were, instituted. It was difficult to determine the reason for the Crown's delay in seeking consent.

A nationwide early guilty plea scheme (or EGP) was going to be introduced where, in every case, an early guilty plea hearing would take place within 28 days of the defendant being sent for trial. An indictment would have to be served by the time of the early guilty plea hearing or the aims of the scheme would be significantly undermined. They would also be undermined if a preliminary hearing could be held before consent was obtained.