Lambert, Regina v: CACD 3 Apr 2009

The court considered the test for whether the requirement for the Attorney General’s consent to a prosecution had been obtained, and said: ‘The analysis of the statutory language: . .
there are two questions.
i) When were the proceedings instituted?
ii) If the permission of the Attorney General was not given before the proceedings were instituted, was the plea before venue hearing within the scope of s.25(2)?
(i) When were proceedings instituted?
The appellant was charged by the police on 27 June 2007 and brought before the Court on 28 June 2007. The charge would have been entered onto the Court record on 28 June 2007.
S.25(2) of the Prosecution of Offences Act 1985 provides that
‘for the purposes of this Part, proceedings in relation to an offence are instituted . . (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of charge.’
The judge took the view that this provision was not directly relevant as the subsection was by its express terms relevant only to Part 1 of the Prosecution of Offences Act and s.25(2) is not in Part 1. It was also argued by the Crown that the phrase ‘the institution or carrying on of proceedings’ in s.25(1) must have a wider meaning than the ordinary meaning of the institution of proceedings and signify something of substance happening in respect of the charge. We can see no warrant in the language for so concluding.
The word ‘institute’ is commonly used to mean commence; that is its ordinary meaning and there is ample authority to support that view. However, as Saville LJ observed in DPP v Cottier [1996] 2 Cr App R 410 at 416, the answer to the question when proceedings are begun or instituted depends on the context in which the words are used and the purpose of the provision . . In the context of the Terrorism Act 2000 it could well be that in the light of s.15(1) (sic) of the Prosecution of Offences Act 1985 and the ordinary meaning of the term institute, that proceedings were instituted when the appellant was charged. However, there can be no reason for contending, as a matter of language and context, that the time at which proceedings were instituted in respect of the appellant for the offence under the Terrorism Act 2000 was any later than the time at which the appellant was brought to court following the charging and when the charge was entered onto the court register. In any sense of the word, the proceedings must have been instituted when the charge was entered into the court register . .
It follows, therefore, that the proceedings against the appellant were instituted before the Attorney General’s permission was given to enable the Director to consent.
Was the plea before venue hearing within the scope of s.25(2)?
We therefore turn to the second question. The language of s.25 is clear. The purpose is to enable the arrest, charging and remand in custody or bail of a person against whom proceedings may have been commenced without the consent of the Attorney General or Director; it covers action that needs to be taken to apprehend the offender and detain him if there is not time to obtain permission. It does not in our judgment permit anything more to be done. Applying the analysis from Bull, it is clear that the decisions in Elliott and Whale and Lockton would have been the same.
If by reason of a wider reading of s.25(1) as contended by the Crown, something of substance was required to happen in the proceedings, a plea before venue is for the reasons we have already set out a hearing of substance.
The appeal is allowed as the permission of the Attorney General was not obtained before proceedings were instituted. We do not need to decide what consequences our decision has on proceedings begun without consent. In the present case, the Crown Court can reconstitute itself as a Magistrates’ Court and hold a new plea before venue hearing. If the issue arises in other proceedings, it is desirable that the consequences be argued in a case where the decision on the issue will have practical significance.’


Thomas LJ, Penry-Davey J, Radford HHJ


[2009] EWCA Crim 700, [2009] 2 Cr App Rep 32, [2010] 1 WLR 898




England and Wales

Cited by:

CitedCW and MM, Regina v CACD 22-May-2015
Proceedings had commenced for conspiracy to supply class A Drugs to a person abroad. Prior consent was required of the Attorney-General, but was only obtained after the event. The prosecutor now appealed against a ruling that the proceedings were . .
CitedLalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.341835