Guidance

Consent of the Attorney General to prosecute: how to apply

Published 30 November 2012

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

Applies to England, Northern Ireland and Wales

1. Introduction

Some offences cannot be prosecuted without the agreement of the Attorney General. These are called ‘Attorney General consent cases’ and consent can be given by either the Attorney General or the Solicitor General (known as the Law Officers).

The timing of when consent is required varies depending on the charge, but as a matter of good practice, Attorney General’s consent should be obtained at the earliest reasonable opportunity. You should always check the time by which consent needs to be in place.

The Crown Prosecution Service has more detailed guidance on consent to prosecute.

Public prosecuting authorities should refer to their own internal guidance on seeking Attorney General’s consent. In the guidance given here, ‘prosecutor’ means the person or organisation seeking the consent of the Attorney General to prosecute.

Consent is needed for the prosecution of an attempt or conspiracy to commit an offence which itself requires consent. Consent is also needed for offences of aiding, abetting, counselling or procuring a substantive offence which requires consent.

A conspiracy in England and Wales may involve the doing of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales which constitutes an offence in that other place. In these circumstances, the consent of the Attorney General is required to prosecute the conspiracy in England and Wales.

A list of offences which require Attorney General’s consent can be found on the Crown Prosecution Service web site under ‘Legal resources’.

However, you should always ensure that you satisfy yourself, by referring to current legislation or up-to-date practitioner textbooks, which offences require consent.

2. The prosecutor’s role in applying for Attorney General’s consent

The prosecutor is to:

• review the case and recommend suitable charges
• highlight public interest factors which may affect the decision to prosecute
• supply documents in accordance with the procedure set out below

3. How to apply for Law Officers’ consent

The following is a checklist of material that should be provided (where relevant) to the Attorney General’s Office. Original documents should not be sent to the Attorney General’s Office.

1. the draft charges or indictment
2. a typed submission from the prosecutor, which must: * contain an explanation of each charge in relation to each person it is proposed to prosecute, and the evidence that the prosecutor says makes it more likely than not that a magistrates’ court or jury will convict that person of the charge * list all the public interest factors which tend in favour of a prosecution and those which tend against - a list of some of the public interest factors which might be relevant can be found in the Code for Crown Prosecutors although there may be others than the ones on that list * contain a summary of the facts * identify all the issues in the case * cross-refer to statements, exhibits and other documents supplied - the relevant page numbers must be referred to in brackets - markings must be then made in the margins on the cross-referenced page, highlighting the exact passage referred to * highlight any issues as to timing * bring to the Attorney’s attention any other issues or sensitivities surrounding the matter * describe how the prosecution intends to put the case at court
3. copies of key documents, including statements, documents and exhibits which show the evidence against the person it is proposed to prosecute
4. the details of the prosecutor making the application

It is particularly important that the name and address of the person it is proposed to prosecute is stated accurately.

Applications for consent should be sent to:

Head of Criminal Casework
Attorney General's Office
5-8 The Sanctuary
London
SW1P 3JS

Where possible, documents should be submitted by email to the Attorney General’s Office.

If items are submitted by post only, if possible, an email should be sent to the Attorney General’s Office confirming that they have been sent.

A lawyer at the Attorney General’s Office will then review the papers before placing them before the Attorney General or Solicitor General. If there are any items missing from the papers, or more information is needed before the papers are looked at by a Law Officer, these will be requested.

4. Timing of application for Law Officers’ consent

It is essential that the Law Officers are allowed sufficient time to consider the case. The length of time required will depend on the nature and complexity of the case and the quality of the application. A minimum of 2 weeks will normally be required in a straightforward case.