R v Cain ; R v Schollick
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 08 May 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J0508-4 |
| Docket Number | No. 4659/A/74 |
| Date | 08 May 1975 |
| Court | Court of Appeal (Criminal Division) |
[1975] EWCA Crim J0508-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Widgery)
Lord Justice James
and
Mr. Justice May
No. 4659/A/74
No. 4660/A/74
MR. G. CARMAN, Q.C. and MR. GOZEM appeared on behalf of the Appellants.
MR. B.A. HYTNER, Q.C. and MR. J. HUGILL appeared on behalf of the Crown.
At the Manchester Crown Court on the 31st October, 1974 these two Appellants were each convicted of one offence of possessing explosives under suspicious circumstances, contrary to section 4 of the Explosive Substances Act, 1883. They appeal against conviction on a short ground, namely, that the Court had no jurisdiction to hear their case because the sufficient consent of the Attorney General to their prosecution had not been obtained.
That such consent is necessary appears from section 7 of the 1883 Act which provides in subsection (1): "If any person is charged before a justice with any crime under this Act, no further proceeding shall be taken against such person without the consent of the Attorney-General, except such as the justice may think necessary by remand or otherwise, to secure the safe custody of such a person."
At the start of their trial the two Appellants moved to quash the counts against them alleging possession of explosives on the footing that the Attorney General's consent had not been obtained. On this motion the actual document said to comprise the consent was produced to the Court and it read as follows:
" THE EXPLOSIVE SUBSTANCES ACT, 1883.
re: ROBERT DAVID CAIN
IN PURSUANCE of my powers under the above-named Act, I HEREBY CONSENT to the prosecution of ROBERT DAVID CAIN of 103 York Street, Heywood, Lancashire, for an offence or offences contrary to the provisions of the said Act.
DATED this nineteenth day of July 1974. (signed) Sam Silkin
Her Majesty's Attorney-General."
A similar consent was signed for Schollick.
Three main points were taken in argument on behalf of the Appellants to support their contention that these forms of consent were insufficient. The first argument was that on a true construction of the section the consent must unambiguously relate to the proceedings already begun and to which the section refers.
The second ground was that there is strong persuasive judicial authority from Northern Ireland and Canada to support the argument that the consent furnished by the Attorney General must be sufficiently detailed, and, in particular, must identify the consent with the particular charge or offence before the Magistrates. We have been told, however, as was the Court below, that there is no authority directly binding on this Court deciding the material issue, namely, whether the form of consent is adequate or not.
Finally, it was contended that a consent in such wide and general terms as the present meant in effect that the Attorney General was delegating his duty to another and that such delegation was not permissible under the Act.
There are a number of other Acts of Parliament which require the consent of the Attorney General or the Director of Public Prosecutions before particular forms of action are taken, and these Acts vary slightly in their language. In some of them the relevant consent must be given before proceedings can be begun, whereas in the present case it seems clear to us that no question of the consent of the Attorney General arises until after a defendant has been charged before a magistrate. The real issue in the present case, however, is whether a consent in such general terms is adequate, and we do not think that this issue would be significantly different if we took the view that section 7 contemplated as a possibility that the Attorney might give his consent before proceedings had been begun. We have been told, however, that this is a matter upon which the Attorney General and his staff would welcome guidance from the Court, and we think it appropriate, therefore, to say that in our opinion section 7 contemplates the giving of consent by the Attorney after proceedings have begun and not prior to the institution of proceedings before the Magistrates.
It appears that the form of consent issued by the Attorney General in this case has been in regular use in England and Wales for over 100 years. The position in Northern Ireland is, however, different. In R. v. Downey (1971) Northern Ireland Reports 224 an Appellant was convicted under the same section as in the present case, namely, section 4 of the 1883 Act, of being knowingly in possession of a shotgun in such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession or under his control for a lawful object.
There was produced to the Court the consent filed by the Attorney General. This set out the names and addresses of both the accused in a manner which identified them sufficiently, and then went on to describe the offence to the prosecution of which the Attorney General was consenting in terms which began as follows: "That they and each of them on the 4th day of July, 1970, at 37 Peel Street, Belfast, had in their possession or under their control certain explosives." It seems that the address given in the Attorney General's consent, namely, 37 Peel Street, Belfast, proved to be wrong, and in the course of the proceedings the Indictment was amended to substitute 2 Varna Street for 37 Peel Street. It was...
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