Welsh (Snr) and 17 others

For indictable-only offences of a cross-border nature (including Scotland), the Attorney-General’s consent must be obtained prior to sending the case to the Crown Court.

This case involved 18 applications for extension of time to seek leave to appeal against conviction. The potential appeals arose from convictions in the Crown Court at Liverpool for the supply of class A drugs. The applicants were convicted on various dates between March 2012 and April 2013. They were seeking leave to appeal on the basis that the Crown had not obtained the necessary consents to prosecute at the relevant time or, in one case, at all, and that the proceedings were therefore a nullity.

Part of the offending for which the applicants where charged involved criminal activity in Scotland. Ss1A and 4 of the Criminal Law Act 1977 require those prosecuting cross-border offences to obtain consent from the Attorney General ("A-G") prior to the ‘institution of proceedings'. This is usually only a concern for offences committed outside the United Kingdom. However, when read together with the Coroners and Justice Act 2009, ‘cross-border' includes cases where an element of the alleged offence has been committed in Scotland.

In all but one of the cases it was agreed that consent had been obtained after sending to the Crown Court under s51 Crime and Disorder Act 1998. In the remaining case, consent was never sought.

The court considered the decision in R v CW & MM [2015] EWCA Crim 906 concerning the effect of s25(2) Prosecution of Offences Act 1985. S25(2) states that the need to obtain consent to prosecute shall not prevent the arrest, issuing of a warrant, remanding in custody or releasing on bail of a suspect.

The court also considered the decision in R v Lambert [2010] 1 WLR 898 which states that, in the case of either way offences, proceedings must have been ‘instituted' before the charge is entered onto the court register, and certainly before the plea before venue hearing in the Magistrates' Court.

Held:

For indictable-only offences, entry of a charge on a court register is purely part of the administrative process and proceedings have not been ‘instituted' at this stage.
For indictable-only offences, consent is required prior to sending under s51 Crime and Disorder Act 1998; sending under s51 is not protected by s25(2) of the 1985 Act and proceedings must have been ‘instituted' by this stage.

In the 17 cases in which consent was obtained (albeit late), the court concluded that no substantial injustice had occurred and refused to exercise its discretion to extend time. However, the appeal in the remaining case (in which consent was never sought) was adjourned for further submissions.