R v Lalchan
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWCA Crim 736 |
| Year | 2022 |
| Court | Court of Appeal (Criminal Division) |
2022 April 6; May 27
Crime - Public order - Institution of proceedings - Defendant charged with acts intended or likely to stir up racial hatred - Statutory prohibition on instituting prosecution without consent of Attorney General - Attorney General’s consent obtained only after conviction - Whether failure to obtain Attorney General’s consent before initiating proceedings rendering proceedings invalid -
The defendant was convicted of using threatening, abusive or insulting words or behaviour, or displaying written material which was threatening, with intention to stir up racial hatred, contrary to section 18(1)(a) of the Public Order Act 1986F1, an offence within Part III of the 1986 Act. Following the defendant’s conviction, but before sentence, the prosecution realised that the consent of the Attorney General had not been obtained prior to the institution of the proceedings as had been required by section 27 of the 1986 Act. The Attorney General subsequently purported to give consent for the proceedings. The defendant applied for leave to appeal against conviction on the ground that in the absence of the Attorney General’s consent prior to the institution of the proceedings in accordance with section 27(1) of the 1986 Act the proceedings were invalid so that the conviction fell to be quashed.
On the application—
Held, granting leave and allowing the appeal, that the assessment of the underlying Parliamentary intention in the event of non-compliance with what might be called a procedural requirement would depend on the statutory provisions and the particular statutory context involved; that, on a true construction of section 27 of the Public Order Act 1986, a failure to comply with the requirement that the consent of the Attorney General be obtained before instituting proceedings for an offence under Part III of the Act was not merely a technical procedural default, but rather rendered such proceedings invalid; that that construction was strongly supported by the natural and ordinary meaning of the statutory language set in context, purposive considerations (including consideration of what Parliament would have intended the consequences of non-compliance to be and the reasoning behind requiring the prior consent of a Law Officer before instituting proceedings, which included protecting a putative defendant from undesirable prosecution) and the weight of authority; that, therefore, since in the present case the Attorney General had not given the requisite consent in advance of the institution of the proceedings against the defendant in respect of the offence contrary to section 18 of the 1986 Act, those proceedings were invalid and his conviction was unsafe and fell to be quashed; but that, in the circumstances, a writ of venire de novo for a fresh trial would be issued (post, paras 27, 33–44).
The following cases are referred to in the judgment of the court:
Bank of Ireland (Governor and Company of) v Colliers International UK plc
Barras v Aberdeen Steam Trawling and Fishing Co Ltd [
Farrell v Alexander [
R v Angel [
R v Ashton
R v Clarke
R v Lambert
R v Pearce (
R v Sekhon
R v Smith (Gordon)
R v Soneji
R v Stromberg
R v Welsh
R v Williams (Malachi)
Seal v Chief Constable of South Wales Police
The following additional cases were cited in argument:
Pepper v Hart [
R v Gowans
R v Johnson (Matthew)
R v Llewellyn (Andrew)
The following additional cases, although not cited, were referred to in the skeleton arguments:
R v Bull (
R v Cain [
R v Chard [
R v Welsh (Christopher) [
R v Umerji (Adam)
R (Majera) v Secretary of State for the Home Department
R (N) v Lewisham Borough Council [
Royal Crown Derby Porcelain Co Ltd v Russell [
APPLICATION for leave to appeal against conviction
On 22 September 2021 in the Central Criminal Court before Judge Pounder and a jury the defendant, Nicholas Azam Lalchan, was convicted of using threatening, abusive or insulting words or behaviour, or displaying written material which was threatening, with intention to stir up racial hatred, contrary to section 18(1)(a) of the Public Order Act 1986. It was subsequently realised that the Attorney General had not given consent to the proceedings in accordance with section 27(1) of the 1986 Act. On 29 November 2021 the Attorney General issued a letter of consent. The defendant applied for leave to appeal against conviction on the ground that the requirement under section 27(1) was for consent to be given by the Attorney General prior to the institution of proceedings, so that the proceedings against him were invalid and should be set aside.
The facts are stated in the judgment of the court, post, para 5.
Peter Wilcock QC and Kerry Moore (assigned by the Registrar of Criminal Appeals) for the defendant.
Tom Little QC (instructed by
The court took time for consideration.
27 May 2022. LORD BURNETT OF MALDON CJ handed down the following judgment of the court.
Introduction1 The issue in this appeal is 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.
2 Section 27(1) of the Public Order Act 1986 (“the 1986 Act”) provides: “No proceedings for an offence under this Part may be instituted in England and Wales except by or with the consent of the Attorney General.” On 22 September 2021, following a trial at the Central Criminal Court, the defendant was convicted of an offence contrary to section 18(1) of the 1986 Act which is in that Part of the 1986 Act. The consent of the Attorney General to the institution of proceedings for that offence had not been obtained. The error was only first noted after conviction but before the defendant was due to be sentenced in January 2022. Consent (or purported consent) on behalf of the Attorney General was given on 29 November 2021. The defendant’s case is that his conviction must be quashed. The Crown, on the other hand, disputes that that is the proper outcome.
3 The application for leave to appeal against conviction has been referred to this court by the registrar. There is also an application for an extension of time. There is a proper explanation for the delay in lodging the application for leave to appeal. We grant the extension of time sought and we grant leave to appeal.
4 Before this court, the defendant was represented by Mr Peter Wilcock QC, who had not appeared below, and Mr Kerry Moore. The Crown was represented by Mr Tom Little QC, who had not appeared below. We are grateful to counsel for their excellent arguments, both written and oral.
Background5 The defendant is a man now aged 49. In the first part of 2019 several antisemitic and homophobic graffiti were written in permanent marker pen at various bus stops in the London Borough of Barnet. In due course the defendant was identified as the alleged perpetrator. When arrested, he was found to be in possession of leaflets containing writings similar to the graffiti and also of several black marker pens. His USB stick, when examined, contained further such writings. He made no comment in interview.
6 The case was sent to the Crown Court on 21 July 2020. At that stage, the defendant was facing 18 charges of religiously aggravated criminal damage and one charge of having articles with intent to commit criminal damage. On 18 May 2021, an amended indictment, containing five counts, was uploaded to the Digital Case System; and, without objection, on 23 July 2021 the indictment was formally amended by permission of the court. In its final form, the indictment contained two counts of religiously and racially aggravated damage to or destruction of property, contrary to section 30(1) of the Crime and Disorder Act 1998 (counts 1 and 2); counts of destroying property, contrary to section 1(1) of the Criminal Damage Act 1971 and of having articles with intent to destroy or damage property, contrary to section 3 of the Criminal Damage Act 1971 (counts 3 and 4); and a count of stirring up racial hatred, contrary to section...
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