Consenting to Prosecutions: The Legal Consequences of Non-compliance With the Requirement
| Author | Neil Parpworth |
| DOI | http://doi.org/10.1177/00220183221123417 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Case Notes |
Consenting to Prosecutions:
The Legal Consequences of
Non-compliance With
the Requirement
R v Lalchan [2022] EWCA Crim 736
Keywords
Institution of proceedings, requisite consent to prosecute, Attorney-General, legislative
intention, venire de novo
The appellant had been identified as the alleged perpetrator of anti-Semitic and homophobic graffiti
written in permanent marker pen at various bus stops in the London Borough of Barnet. Following his
arrest, he was found to be in possession of leaflets containing similar writing to the graffiti, as well as
several black marker pens. A USB stick which he had was also found to contain further such writings.
In its final form, the indictment against him contained five counts: two counts of religiously and racially
aggravated damage to or destruction of property, contrary to s.30(1) of the Crime and Disorder Act 1998
(counts 1 and 2); counts of destroying property, contrary to s.1(1)of the Criminal Damage Act 1971, and
of having articles with intent to destroy or damage property, contrary to s.3 of the1971 Act (counts 3 and
4); and a count of stirring up racial hatred, contrary to s.18(1)of the Public Order Act 1986 (count 5).
Whilst the appellant had pleaded guilty to counts 3 and 4, there was a trial on counts 1, 2 and 5.
At his trial, the appellant did not dispute that he wrote the graffiti. He claimed that he was seeking to
make others aware of the ‘new world order’and he expressed various conspiracy theories relating to, for
example, unidentified flying objects, the Pope, vaccines and the Queen. On 22 September 2021, a jury
convicted him on count 2 (by a majority) and on count 5 (unanimously). Since they were unable to
reach a verdict on count 1, the trial judge discharged them from doing so. The present appeal was con-
fined to count 5. By a letter dated 29 November 2021, the CPS notified the appellant’s lawyers that the
consent of the Attorney-General to count 5 had not previously been obtained. This was in direct conflict
with s.27(1) of the1986 Act which states: ‘No proceedings for an offence under this Part may be insti-
tuted in England and Wales except by or with the consent of the Attorney General’. The letter also
included a written notice with the same date, signed by the Solicitor-General, in which consent to the
prosecution under the1986 Act was given. The issue in the present appeal was, therefore, whether a con-
viction for an offence which requires the consent of the Attorney-General before the proceedings are
instituted could stand when no such consent was obtained.
Held, allowing the appeal, that the notion of consent being required to be given by the Attorney-
General, or another person, prior to the institution of criminal proceedings was neither unique to the
told strongly against dismissing the requirement of consent as a mere technicality. Rather, the imperative
language used led to the natural implication that proceedings were to be regarded as invalidated if consent
had not been obtained before they were instituted. Moreover, the weight of previous legal authorities also
pointed to the same conclusion. Interpreting s.27(1) thus achieved a desirable certainty and uniformity of
outcome. Accordingly, since the consent of the Attorney-General had not been obtained before the count
Case Note
The Journal of Criminal Law
2022, Vol. 86(5) 368–371
© The Author(s) 2022
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DOI: 10.1177/00220183221123417
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