Consents to Prosecute

• Introduction
• Timing of consent
• Cases requiring the consent of the DPP
• Cases requiring the personal consent of the DPP
• Cases requiring the consent of the Attorney General
• Offences committed in particular ways
• Annex 1 - Offences Requiring the Attorney General's consent (or other consent besides that of the DPP)
• Annex 2 – Matters requiring the DPP's personal consent
• Annex 3 – Civil recovery
• Annex 4 – Application for AG Consents
• Annex 5 - Example template for grant of DPP’s personal consent

Introduction

Some prosecutions cannot be instituted without the prior consent of the Attorney General (AG) or the Director of Public Prosecutions (DPP). 

In respect of prosecutions requiring DPP’s consent, in many cases that consent can be given by any Crown Prosecutor by virtue of section 1(7) of the Prosecution of Offences Act 1985. However, there are some cases where statute disapplies section 1(7); these are sometimes referred to as requiring the DPP’s personal consent, although the granting of such consent can often be delegated to specified prosecutors. There are also some actions other than instituting proceedings which require the DPP’s personal consent.

Note that in some cases CPS policy may require a higher level of authorisation than Crown Prosecutor to institute proceedings or take some other step notwithstanding the fact that section 1(7) does apply; those matters are covered in the ‘Referral of cases’ legal guidance. Cases where there is such a requirement for authorisation differ from those where there is a statutory requirement for consent, and the requirement for authorisation does not have an impact on the legal status of the proceedings.

Annex 1 contains examples of offences requiring the AG’s consent and Annex 2 contains a schedule of matters requiring the DPP’s personal consent.

Timing of consent

Before proceedings are instituted

Where an enactment prohibits the institution of proceedings without consent, consent must be obtained before those proceedings are instituted, rather than retrospectively. The precise point at which proceedings are said to be instituted is discussed below, but prosecutors should always apply for an adjournment at the first appearance to obtain consent if it is required and has not been obtained; this need not prevent dates being set for future hearings.

Statutory requirements for consent to institute proceedings are subject to section 25(2)(a) of the Prosecution of Offences Act 1985, which provides that any such requirement "shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence". Accordingly, these steps may lawfully be taken prior to consent being obtained.

The point at which proceedings are said to be instituted, and therefore the point before which consent must be obtained if required by statute, depends on the nature of the offence:

• Indictable only offences: when the case is sent to the Crown Court (R v Welsh and Others [2015] EWCA Crim 1516, para 54).
• Either way offences: when the plea before venue procedure is conducted (R v Lambert [2009] EWCA Crim 700 and R v Welsh and Others [2015] EWCA Crim 1516).
• Summary only offences: when a plea is taken.

These points are collectively referred to below as the ‘relevant step’. Note that in most cases the relevant step will be taken at the first appearance in the magistrates’ court.

Although the relevant step takes place after charge, prosecutors should always make best endeavours to obtain consent before charge. The only exception should be where, despite those best endeavours, this has not been possible. This is likely to be mainly applicable where an immediate charging decision is required and it is proposed to remand the defendant into custody before their first appearance. Where it has not been possible to obtain consent before charge, it is the responsibility of the charging lawyer to ensure that the charging decision records the need to obtain consent and the stage by which this needs to be obtained (such as the plea before venue procedure for an either way offence). The charging decision should also contain instructions for the prosecutor at court to apply for an adjournment at the first appearance in order for consent to be sought.

If consent has not been obtained by the time the relevant step is reached, an application for an adjournment should be made to allow consent to be obtained. By virtue of section 25(2)(a) of the Prosecution of Offences Act 1985, the defendant may be remanded into custody or on bail where such an application is granted. In respect of indictable only offences which the magistrates’ court is obliged to send to the Crown Court under section 51 of the Crime and Disorder Act 1998, prosecutors should ask the court to exercise its the power under section 52(5) of the Crime and Disorder Act 1998 to adjourn proceedings under section 51 prior to sending, which may be used to allow consent to be obtained (R v Welsh and Others [2015] EWCA Crim 1516, para 56).

The following may be relied on in support of such an application to adjourn:

• Where applicable, the fact that there is a statutory requirement for consent and that the consent must be obtained before the relevant step is taken.
• The reasons why it has not been possible to obtain consent prior to charge. This will often be because the charging decision was made on the Threshold Test, in which case prosecutors should explain the reasons why the Threshold Test was used, which will include that the seriousness or circumstances of the case justified an immediate charging decision and that there were substantial grounds to object to bail.
• The fact that consent can only be given by the certain people. Where the AG’s consent is required, such consent must be given personally by either the AG or the Solicitor General and cannot be delegated to anyone else. Where the DPP’s personal consent is required, such consent must be given by the DPP or by a limited number of other senior prosecutors (see Annex 2).

Before applying for an adjournment, prosecutors should endeavour to establish the shortest period within which the relevant consent can be obtained. The court should then be informed of this period and the reasons why this length of time is necessary. The court may also be informed that it would be acceptable to the CPS for the time between sending and the first appearance in the Crown Court to be abridged. If the prosecutor has been unable to establish the time required to obtain consent (for example, because the first hearing is on a Saturday or the requirement for consent has been identified late), an adjournment should be requested as follows:

• If there are no objections to bail, 28 days should be requested. In respect of AG’s consent, the comments of the Court of Appeal at paragraph 56 of R v Welsh and Others [2015] EWCA Crim 1516 are relevant: "If the Attorney has not had a reasonable time in which to make an informed consent, the court is likely to grant an adjournment for the minimum time necessary. That does not mean that other appropriate preparations will have to be put on hold. The submission that this will introduce delay is of limited force. [...] We have referred already to the indication [...] that 28 days should suffice.”
• If there are objections to bail, the prosecutor should indicate that an adjournment is sought for 14 days if the defendant is remanded into custody or 28 days if they are bailed.
• The prosecutor should explain to the court that they have been unable to establish whether this will be sufficient time and may need to seek a further adjournment if a consent decision cannot be obtained within the adjournment period.

If the court indicates that it is minded to refuse an application to adjourn for a longer period, prosecutors should endeavour to obtain an adjournment for one week.

If an adjournment is granted, the relevant CPS Area should submit an application for consent as soon as practicable and potentially give advance notification of the application. This advance notice will be to: the Attorney General’s Office for AG’s consent; the DLS Team and Private Office where the DPP is personally required to give consent; or, the prosecutor with delegated authority to give the DPP’s consent (see Annex 2).

If an adjournment is refused, prosecutors should proceed as set out below under ‘Late consent and absence of consent’.

Offences added to the Indictment and voluntary bills of indictment

If an offence requiring consent is charged for the first time as a count on an indictment which has not yet been preferred, consent should be obtained before the indictment is preferred. If it is proposed to add a count requiring consent to an indictment which has already been preferred, consent should be obtained before leave is sought to add the count to the indictment.

Where it is proposed to proceed by way of a voluntary bill, any necessary consent must be obtained or given before the application for the bill is made.

Late consent and absence of consent

Where consent is not obtained before proceedings are instituted, those proceedings are invalid in so far as they relate to the offence for which consent was not obtained, and any conviction for that offence will therefore be unsafe: Lalchan [2022] EWCA Crim 736. However, any conviction and sentence stand unless and until they are quashed on appeal (see paragraph 25 of Lalchan). Also note the effect of section 25(2)(a) of the Prosecution of Offences Act 1985, discussed above.

Where it is noticed after proceedings have been instituted that consent has not been obtained, prosecutors should use following procedure:

• Where the case is still in the magistrates’ court, prosecutors should lay an identical charge (consent having been obtained), discontinue the original proceedings, and revert to the hearing by which consent should have been obtained.
• Where the case has reached the Crown Court, the court should be invited to use the procedure under section 66 of the Courts Act 2003, which allows a Crown Court judge to exercise the powers of a magistrates’ courts district judge (see the section on section 66 in the Allocation of Cases and Sending to the Crown Court legal guidance). Prosecutors may then lay an identical charge (consent having been obtained) and the Crown Court judge should be invited to conduct a new plea before venue hearing and/or re-send the case to the Crown Court. The original charge may be discontinued if the indictment has not been preferred. If the indictment has been preferred, prosecutors should ask for the original charge to lie on the file.

When using this procedure, prosecutors should:

• give prior notice to all other parties of the intention to proceed in this way
• avoid offering no evidence
• consider whether directions given previously should be given again in respect of the newly laid charge

Cases requiring the consent of the DPP

Where the consent of the DPP to institute proceedings is required, this can generally be given by a Crown Prosecutor by virtue of section 1(7) Prosecution of Offences Act 1985. The decision to grant consent should be taken by applying the principles in the Code for Crown Prosecutors and any relevant CPS guidance.

In Walker [2016] EWCA Crim 751 it was held that when a Crown Prosecutor decides that there is sufficient evidence to charge, and then identifies the relevant offence and notifies the police of that decision, then if the prosecutor instituted proceedings personally no separate consent is necessary, and if the prosecutor requires the police to charge then notification of the decision constituted the giving of consent. Accordingly, there is no need to complete a separate record of the consent.

As a result of section 1(7), the circumstances in which the requirement for DPP’s consent is likely to be pertinent to a prosecutor are:

• Requests for the DPP's consent from another prosecuting agency: see the legal guidance Relations with other prosecuting agencies. If consent is given, it should be accompanied by a request for the other agency to provide updates in accordance with the guidance under ‘Involvement of the DPP as the case progresses’ (below). Requests relating to an offence contrary to the Customs and Excise Acts should be referred to the Serious Economic and Organised Crime and International Division for advice.
• Requests for the DPP's consent in private prosecutions: see the legal guidance Private Prosecutions, which states that if the proposed prosecution passes the Full Code Test, the CPS will take over the prosecution, but if it does not then consent to prosecute will not be given. Again, requests relating to an offence contrary to the Customs and Excise Acts should be referred to the Serious Economic and Organised Crime and International Division for advice.
• Certain instances where section 1(7) does not apply, as discussed in the following section.

Cases requiring the personal consent of the DPP

In some cases, the consent of the DPP rather than that of any Crown Prosecutor is required by statute notwithstanding the general provision in section 1(7) of the Prosecution of Offences Act 1985. This is sometimes referred to as a requirement for the personal consent of the DPP, although such consent can sometimes be given by another senior prosecutor. The DPP’s personal consent may be required before instituting certain proceedings or taking certain other actions. Examples include instituting proceedings under the Bribery Act 2010 or making applications for the retrial for serious offences under Part 10 of the Criminal Justice Act 2003. See Annex 2 for the full list of such offences and actions, and for a list of the individuals other than the DPP who may grant consent in each instance.

Rarely, a case may present a potential conflict of interests for the DPP (for example, as a result of their involvement in the case prior to taking up the post of DPP). In such cases, the issue of consent should be dealt with by one of the other individuals able to grant consent.

Where personal consent is required to institute proceedings, the section in the charging decision entitled 'DPP Consent' must be completed to acknowledge that this has been obtained or is to be obtained.

There is no statutory requirement for consent to be in writing, but prosecutors should obtain written confirmation of the grant of consent (suggested text for the form can be found at Annex 5).

Note that in some cases where section 1(7) does apply, CPS policy may still require a higher level of authorisation than Crown Prosecutor to institute proceedings or take some other step; those matters are covered in the ‘Referral of cases’ legal guidance.

Procedure for obtaining personal consent of the DPP

A prosecutor seeking the DPP’s personal consent should follow the procedure below. The same procedure should be used where such consent is sought from a Director of Legal Services who has delegated authority to grant such consent. In other cases, where a senior prosecutor within an Area or Division has delegated authority to grant such consent, the prosecutor seeking consent should consult with them as to what information and material they require.

1. The prosecutor should prepare a submission for the DPP using Private Office’s submission template. In addition to the requirements set out in that template, the submission should include:

• A case summary which allows the reader, coming to the case for the first time, to understand the implications of the issues raised throughout the briefing document; and
• The reason the DPP’s personal consent is required (i.e., the statutory provision requiring personal consent; see Annex 2 for details of these).

Where the request is for consent to institute proceedings, the submission should additionally include: 

• Details of the charges being considered for each proposed defendant;
• An explanation of the charging decision in respect of each charge, including:
• why it is said that the evidential test is met in respect of each proposed defendant, including how the case against them is put, details of the evidence relied upon, any potential admissibility or other legal issues, and any potential defences and how these will be dealt with; and
• why it is said that there is a public interest in prosecuting, including the public interest factors for and against a prosecution and details of any representations from the defence or interested parties and views in respect of these;
• Any issues around timing; if there has been a significant delay this should be explained and, if appropriate, a chronology supplied as an annex;
• A summary of the disclosure position, including what stage the review of material has reached and details of any significant undermining or assisting material that falls to be disclosed;
• An assessment of acceptable pleas; and,
• Any other key issues in the case.

2. Alongside the submission, prosecutors should supply the following as annexes (where available):

• A case summary or opening note;
• Counsel’s advice (where it is felt that this would assist the person from whom consent is sought; for example, it may not assist to provide advice which significantly pre-dates the application for consent or which covers matters not relevant to the decision as to whether consent should be granted);
• A draft indictment;
• Antecedents for each proposed defendant; and,
• Any other documents considered necessary to understand the case.

3. Prosecutors should also provide a consent to prosecute form for each proposed defendant (suggested text for the form can be found at Annex 5). It is important that the name and address of each proposed defendant is stated accurately.
4. The submission should be checked by a Deputy Chief Crown Prosecutor or Deputy Head of Casework Division, or above, to ensure that the case has been reviewed correctly in accordance with the Code for Crown Prosecutors and relevant legal guidance and that the papers have been prepared to a sufficiently high standard, with any deficiencies being referred back to the prosecutor.
5. The submission and supporting documents should be sent to the DLS team for onward submission to the DPP.

Involvement of the DPP as the case progresses

When the DPP or another senior prosecutor has given consent under the procedure set out above, they will retain an interest in the matter. Where the personal consent was for the institution of proceedings, the prosecutor should provide a briefing note to the DPP or other senior prosecutor in the following situations (unless exceptional circumstances, such as the need for an immediate decision, prevent this):

• It is proposed to no longer pursue a charge for which consent has been granted, or to accept pleas to a lesser offence;
• There are changes to the charges or to how the case is put which represent a fundamental change to the basis on which consent was granted; or
• Any other circumstances of which the prosecutor thinks the DPP or other senior prosecutor should be informed.

The briefing note should annex any relevant documents. For example, for changes to charges this could include the current and proposed new indictment and any relevant advice from counsel.

Where personal consent has been obtained and it is proposed to amend the particulars on the indictment, it is not necessary to obtain further personal consent as long as:

• The operative sections under which the defendant is being prosecuted remain the same; and
• the changes do not amount to a fundamental change to the basis on which consent was granted.

However, it is good practice to notify the DPP or other senior prosecutor of the changes via an updated briefing.

When the case is completed the prosecutor should notify the DPP of the result and any sentence imposed.

Cases requiring the consent of the Attorney General

By virtue of section 1 of the Law Officers Act 1997, the Solicitor General (SG) can exercise any of the functions of the Attorney General (AG), including giving consent to a prosecution. Accordingly, in this guidance any reference to the AG can be taken to include the SG.

Prosecutors should ensure that they have read and understood the Framework Agreement between the Law Officers and the DPP​​, particularly paragraphs 50-52 on the AG's consent to prosecute. As stated at paragraph 51, when considering an application for consent the AG “acts quasi-judicially and independently of government, applying well established prosecution principles of evidential sufficiency and public interest”.

Any case that requires the consent of the AG must first be reviewed in the usual way in accordance with the Code for Crown Prosecutors and any relevant CPS guidance. As usual, prosecutors should check if the case is of a type that must be referred to a particular part of the CPS, such as a Central Casework Division, under the Referral of Cases legal guidance. Where a case requires both the consent of the AG and the personal consent of the DPP, discussed above, the DPP’s personal consent should be obtained first.

Prosecutors only need to refer cases to the AG where it is considered that there is sufficient evidence to prosecute and that a prosecution would be in the public interest. There is no need to refer cases where a decision is taken not to prosecute, whether on evidential or public interest grounds. Equally, before submitting a case to the AG the prosecutor must have come to the view that there is sufficient evidence to prosecute and that a prosecution is in the public interest.

Procedure for obtaining the Attorney General’s consent

Applications for the AG’s consent should be submitted to the Attorney General’s Office (AGO). If a prosecutor has a question on the procedure for submissions, they should contact the AGO. The AGO encourages early contact with them in all cases where the consent of the AG may be required. Advice can be provided regarding procedure but not on whether consent is required. If there is genuine ambiguity as to whether consent is required, the safest course is likely to be to seek consent and acknowledge that ambiguity in the application.

All applications for AG's consent should be made on the template at Annex 4, which contains guidance on what is required. In accordance with the template, the whole case file should not be sent as a matter of course. Rather, prosecutors should endeavour to summarise the case clearly in section 4 of the template, and should only provide evidential documents where they are necessary to enable the AG to understand the case and the prosecutor’s analysis of it and they cannot be effectively summarised. Original documents should not be sent to the AGO.

It is important that the name, address and date of birth of the proposed defendant(s) are stated accurately in section 1 of the template.

Before a case is submitted to the AGO, a Deputy Chief Crown Prosecutor or Deputy Head of a Central Casework Division, or above, should check that it has been prepared to an appropriate standard.

A lawyer at the AGO will then review the application before placing it before the AG. If the AGO lawyer wants further information or clarification or believes there are additional matters that need to be addressed in the application, they will speak to the relevant prosecutor and their line manager to explain the issue and discuss how it can be rectified.

It is essential that the AG is allowed sufficient time to consider the case. In this regard it should be borne in mind that the AG and SG have commitments as government ministers and will have had no prior involvement in the case. The length of time required will depend on the nature and complexity of the case and the quality of the application. Where the suspect is on bail, a minimum of four weeks will generally be required. For more complex matters, a longer period is likely to be required and prosecutors should liaise with the AGO in advance of submission of the consent application to establish the time required. Where an urgent decision may be required, prosecutors should notify the AGO that an application may be forthcoming as early as possible.

Involvement of the Attorney General as the case progresses

When the AG gives consent for a prosecution to take place, they will maintain an interest in the progress of the case.  Paragraph 52 of the Framework Agreement between the Law Officers and the DPP states that:

“Where consent has been given and a prosecution is commenced, the prosecutor keeps the AGO informed of its progress. Where practicable, the prosecutor consults the Attorney General if the prosecutor is contemplating either dropping the case on public interest grounds, or accepting pleas. If the case can no longer proceed for evidential reasons which emerge after a prosecution is started, the prosecutor informs the Attorney General of the decision as soon as it is taken.”

Prosecutors should also notify the AGO of any changes to the charges or to how they are put which represent a fundamental change to the basis on which consent was granted.

When the case is completed, the CPS should notify the AGO of the outcome.

Where, after a further review of the evidence, it is proposed to accept guilty pleas to all the offences for which consent has been given but on a factual basis different to that put forward in the application for consent, there is no need to contact the AGO before accepting those pleas provided that the basis of plea complies with part 9 of the Code for Crown Prosecutors and Part C of the Attorney General's Guidelines on the Acceptance of Pleas (unless it represents a fundamental change to the basis on which consent was granted).

Offences committed in particular ways

Inchoate offences

Consent is needed for the prosecution of an attempt to commit an offence which itself requires consent; this will be the consent of the DPP or AG as appropriate for the substantive offence: Criminal Attempts Act 1981, section 2. The same applies to conspiracy: Criminal Law Act 1977, section 4(3). Consent must be separately obtained for substantive offences and inchoate versions of those offences (see, for example, R v Pearce (1981) 72 Cr App R 295).

Proceedings for conspiracy to commit a summary only offence may only be instituted with the consent of the DPP: Criminal Law Act 1977, section 4(1). If the summary only offence requires the consent of the AG, then proceedings for conspiracy to commit that offence may only be instituted with the consent of the AG, rather than the DPP: Criminal Law Act 1977, section 4(2).

In addition, the AG’s consent is required in the following circumstances:

• For offences of encouraging or assisting crime under sections 44, 45 and 46 of the Serious Crime Act 2007 where the defendant is triable by reason of Schedule 4 of that Act (which may apply where it cannot be proved that the defendant knew or believed that the offence(s) they encouraged or assisted would be committed wholly or partly within the UK): Serious Crime Act 2007, section 53(1); and
• For offences contrary to section 1A of the Criminal Law Act 1977, which relates to conspiracy to commit an offence outside of England and Wales: Criminal Law Act 1977, section 4(5). If there is doubt as to whether the substantive offence contemplated by the conspiracy would be committed within England and Wales, then prosecutors should seek the AG's consent.

Accessories

Where a person is an accessory (i.e., they aid, abet, counsel or procure the commission of the offence by a principal), the Accessories and Abettors Act 1861, section 8, provides that they “shall be liable to be tried, indicted, and punished as a principal offender”, and the Magistrates’ Courts Act 1980, section 44(1) is of similar effect for summary offences. Accordingly, there is no distinction in the requirements for consent between an accessory and a principal.

Offences committed within the jurisdiction of the Admiralty

Where an indictable offence is committed in UK territorial waters by a person who is not a UK citizen, the consent of a Secretary of State is required before proceedings can be commenced: Territorial Waters Act 1878, section 3. For the procedure regarding this, and for details of an exception for certain immigration offences, see the ‘Consent to prosecution for Admiralty offences’ section in the ‘Immigration’ legal guidance. The AGO may be able to provide assistance as to the correct point of contact.

Annex 1 - Offences Requiring the Attorney General's consent (or other consent besides that of the DPP)

The following is a list of offences requiring the Attorney General’s consent, or the consent of some other authority besides the DPP. If the requirement for consent is contained in a separate provision from that creating the offence(s) then this section is also listed.

The following points should be noted:

• In some cases, consent may be provided by a number of different authorities including the DPP (eg. either the AG or the DPP). These offences are not listed below, as prosecutors will not need to separately obtain consent from the other authorities; the consent of the DPP alone is sufficient, and this can be provided by any Crown Prosecutor unless the offence appears in Annex 2.
• In some cases, consent may be provided by a number of different authorities not including the DPP (eg. either the AG or a Secretary of State). These offences are listed below. Where those authorities include the AG, then prosecutors should seek the consent of the AG. In some instances the consent of a specific authority other than the DPP or AG is required, in which case this authority is stated next to the relevant offence in the list below.
• The list below is not necessarily comprehensive and prosecutors dealing with unfamiliar offences should check the relevant statute for any consent requirements.

Agricultural Credits Act 1928, section 10.

Agriculture & Horticulture Act 1964, offences in Part III; consent is required by section 20.

Anti-Terrorism, Crime and Security Act 2001, sections 47 and 50; consent is required by section 55.

Anti-Terrorism, Crime and Security Act 2001, sections 79 and 80; consent is required by section 81.

Anti-Terrorism, Crime and Security Act 2001, s113, where that offence is committed outside the UK; consent is required by section 113B.

Armed Forces Act 2006: where sections 55 to 58 would otherwise prohibit the charging of a person with an offence, section 61 provides that the person may be charged with the AG’s consent

Auctions (Bidding Agreement) Act 1927, section 1.

Aviation and Maritime Security Act 1990, section 1 and offences under Part II; consent is required by sections 1 and 16.

Aviation Security Act 1982, sections 1, 2, 3, 5 and 6; consent is required by section 8.

Biological Weapons Act 1974, section 1; consent is required by section 2(1)(a).

Building Act 1984, all offences; consent is required by section 113.

Care Standards Act 2000, offences under Part II or under regulations made under Part II; consent is required by section 29.

Chemical Weapons Act 1996, all offences; under section 31 consent is required from the AG for offences under section 2 and 11, and consent is required from the Secretary of State for other offences.

Children & Young Persons (Harmful Publications) Act 1955, section 2.

Contempt of Court Act 1981, section 7 (may also be instituted on the motion of a court having jurisdiction to deal with the contempt).

Criminal Justice Act 1987, section 11A.

Criminal Justice Act 1987, section 134; consent is required by section 135.

Criminal Law Act 1977, section 9.

Explosive Substances Act 1883, all offences; consent is required by section 7(1).

Highways Act 1980, sections 167 and 177 and the provisions of the Act specified in Schedule 22, and offences created by bylaws made under any of these; consent is required under section 312, although proceedings may be brought by a constable for certain offences without such consent.

Horticultural Produce Act 1986, section 4; consent is required by section 5.

Housing Act 1985, offences under Part X; consent is required by section 339 if the prosecution is against a local housing authority.

International Criminal Court Act 2001, section 53.

Internationally Protected Persons Act 1978, section 1; consent is required by section 2.

Judicial Proceedings (Regulation of Reports) Act 1926, section 1.

Juries Act 1974, sections 20A, 20B, 20C and 20D.

Landmines Act 1998, section 2; consent is required by section 20.

Law of Property Act 1925, section 183.

Law Reform (Year and a Day Rule) Act 1996, section 2: the consent of the AG is required for proceedings for a fatal offence if the injury alleged to have caused the death was sustained more than three years before the death occurred, or if the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death. A ‘fatal offence’ means murder, manslaughter, infanticide, any other offence of which one of the elements is causing a person's death, an offence under section 2(1) of the Suicide Act 1961 (encouraging or assisting suicide) in connection with the death of a person, or an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 of causing or allowing the death of a child or vulnerable adult.

Marine Insurance (Gambling Policies) Act 1909, section 1.

Mines & Quarries Act 1954, all offences committed by a person listed in section 155(1)(a); consent is required by section 164.

Nuclear Material (Offences) Act 1983, all offences; consent is required by section 3.

Official Secrets Act 1911, all offences; consent is required by section 8.

Official Secrets Act 1920, all offences; consent is required by section 8 (strictly, consent is only required where an offence is to be tried summarily).

Official Secrets Act 1989, all offences except offences under section 4(2); consent required by section 9.

Prevention of Oil Pollution Act 1971, all offences; consent is required by section 19.

Protection of Trading Interests Act 1980, section 3.

Public Health Act 1936, all offences; consent is required by section 298.

Public Health (Control of Diseases) Act 1984, all offences; consent is required by section 64.

Public Order Act 1936, section 2.

Public Order Act 1986, offences under Parts 3 and 3A; consent is required by sections 27 and 29L respectively.

Serious Crime Act 2007, sections 44, 45 and 46; consent is required under section 53 but only where an offence is triable by virtue of the provisions in Schedule 4.

Serious Organised Crime and Police Act 2005, section 128.

Sexual Offences (Amendment) Act 1992, section 5.

Suppression of Terrorism Act 1978, section 4.

Taking of Hostages Act 1982, all offences; consent is required by section 2.

Terrorism Act 2000, all offences other than those under section 36, section 51, paragraph 18 of Schedule 7, paragraph 12 of Schedule 12, or Schedule 13; consent is required by section 117, which provides that consent may generally be given by the DPP but that if it appears to the DPP that the relevant offence has been committed outside the United Kingdom or for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom, the DPP’s consent may be given only with the permission of the AG.

Terrorism Act 2006, offences under Part I; consent is required by section 19, which is in similar terms to section 117 of the Terrorism Act 2000, above.

Theatres Act 1968, sections 2 and 6; consent is required by section 8.

War Crimes Act 1991, section 1.

Water Industry Act 1991, “an offence created by or under any of the relevant sewerage provisions”; consent is required by section 211.

Annex 2 – Matters requiring the DPP's personal consent

Charging offences contrary to the Bribery Act 2010

• Provision requiring personal consent:
  No proceedings for an offence under this Act may be instituted in England and Wales except by or with the consent of […] the Director of Public Prosecutions [who] must exercise personally any function […] of giving consent.
  (Section 10(1) and (4))
   
• Authority to delegate:
  The only exception is if—
  1. the Director concerned is unavailable, and
  2. there is another person who is designated in writing by the Director acting personally as the person who is authorised to exercise any such function when the Director is unavailable.
  (Section 10(5))
   
• Persons delegated to: the Director of Legal Services.

Charging offences of failure to prevent facilitation of foreign tax evasion, contrary to section 46 of the Criminal Finances Act 2017

• Provision requiring personal consent:
  No proceedings may be instituted in England and Wales except by or with the consent of the Director of Public Prosecutions […]. The Director of Public Prosecutions […] must […] exercise any function of giving consent under subsection (2) or (3) personally […].
  (Section 49(2) and (4))
   
• Authority to delegate:
  unless—
  1. the Director concerned is unavailable, and
  2. there is another person designated in writing by the Director concerned acting personally as the person who is authorised to exercise the function when the Director is unavailable.
  (Section 49(4))
   
• Persons delegated to: the Director of Legal Services.

Entering into Deferred Prosecution Agreements under Schedule 17 to the Crime and Courts Act 2013

• Provision requiring personal consent:
  1. The following are designated prosecutors—
     1. the Director of Public Prosecutions;
     […]
  2. A designated prosecutor must exercise personally the power to enter into a DPA and, accordingly, any enactment that enables a function of a designated prosecutor to be exercised by a person other than the prosecutor concerned does not apply.
  (Paragraph 3 of Schedule 17)
   
• Authority to delegate:
  3. But if the designated prosecutor is unavailable, the power to enter into a DPA may be exercised personally by a person authorised in writing by the designated prosecutor.
  (Paragraph 3 of Schedule 17)
   
• Persons delegated to: None (so consent may only be given by the DPP).

Applications for the retrial for serious offences under Part 10 of the Criminal Justice Act 2003

• Provision requiring personal consent:
  A prosecutor may make an application […] only with the written consent of the Director of Public Prosecutions.
  (Section 76(3))
  Section 1(7) of the Prosecution of Offences Act 1985 (c. 23) (DPP's functions exercisable by Crown Prosecutor) does not apply to the provisions of this Part […].
  (Section 92(1))
   
• Authority to delegate:
  2. In the absence of the Director of Public Prosecutions, his functions under those provisions may be exercised by a person authorised by him.
  3. An authorisation under subsection (2)—
     1. may relate to a specified person or to persons of a specified description, and
     2. may be general or relate to a specified function or specified circumstances.
  (Section 92)
   
• Persons delegated to: the Director of Legal Services.

Immunity from prosecution under section 71 of the Serious Organised Crime and Police Act 2005

• Provision requiring personal consent:
  Section 71(1) provides that immunity may be offered by a "specified prosecutor" and section 71(4)(a) lists the DPP as a specified prosecutor.
   
• Authority to delegate:
  Section 71(4)(e) provides that "specified prosecutor" includes a prosecutor designated for this purpose by the DPP.
   
• Persons delegated to: the Director of Legal Services (the AG must also be consulted before an offer of immunity is made).

Undertakings as to the use of evidence under section 72 of the Serious Organised Crime and Police Act 2005

• Provision requiring personal consent:
  Section 72(1) provides that an undertaking as to the use of evidence may be offered by a "specified prosecutor" and section 72(7) provides that "specified prosecutor" must be construed in accordance with section 71(4), which lists the DPP as a specified prosecutor in paragraph (a).
   
• Authority to delegate:
  Section 71(4)(e) provides that "specified prosecutor" includes a prosecutor designated for this purpose by the DPP.
   
• Persons delegated to: the Directors of Legal Services.

Discount in sentence for assistance under section 74 or 388 of the Sentencing Act 2020 and referral under section 387 of the Sentencing Act 2020 for failing to assist

• Provision requiring personal consent:
  Section 74 provides that a Crown Court when sentencing may take into account any assistance or offer of assistance provided by the offender under a written agreement with a "specified prosecutor".
  Section 388 provides that a "specified prosecutor" may refer a case back to the Crown Court for a sentence to be reconsidered where the Crown Court passed a sentence which is still being served and the offender has assisted or offered to assist pursuant to a written agreement subsequently made with a specified prosecutor.
  Section 387 provides that a "specified prosecutor" may refer a case back to the Crown Court for a sentence to be reconsidered where the Crown Court passed a sentence which is still being served and which was discounted by reason of the offender having offered to assist pursuant to a written agreement and the offender has knowingly failed to give assistance.
  Sections 75(1) and 392(3) provide that in each case "specified prosecutor" must be construed in accordance with section 71 of the Serious Organised Crime and Police Act 2005, which lists the DPP as a specified prosecutor in subsection (4)(a).
   
• Authority to delegate:
  Section 71(4)(e) of the Serious Organised Crime and Police Act 2005 provides that "specified prosecutor" includes a prosecutor designated for this purpose by the DPP.
   
• Persons delegated to: the Director of Legal Services, Chief Crown Prosecutors, Deputy Chief Crown Prosecutors, Heads of Central Casework Divisions, and Deputy Heads of Central Casework Divisions.

Use of investigatory powers under the Serious Organised Crime and Police Act 2005

• Provision requiring personal consent:
  This Chapter confers powers on […] the Director of Public Prosecutions […] in relation to the giving of disclosure notices in connection with the investigation of offences to which this Chapter applies or in connection with a terrorist investigation.
  (Section 60(1))
   
• Authority to delegate:
  The Director of Public Prosecutions may, to such extent as he may determine, delegate the exercise of his powers under this Chapter to a Crown prosecutor."
  Section 60(2))
   
• Persons delegated to: prosecutors of Level E or above.
   
• The DPP and any person to whom the power is delegated under section 60(2) (collectively referred to in the 2005 Act as 'the Investigating Authority' – section 60(5)) may give a disclosure notice or authorise an appropriate person listed in section 62 to give a disclosure notice. A warrant to enter and seize documents may be sought under section 66, in which case there is a requirement for "an information on oath laid by the Investigating Authority" meaning laid by the DPP or person to whom the power is delegated under section 60(2). For further guidance on the exercise of these powers, see the legal guidance DPP's Investigatory Powers (Ss 60-70 SOCPA, 2005).

Applications for Serious Crime Prevention Orders under the Serious Crime Act 2007

• Provision requiring personal consent:
  A serious crime prevention order may be made only on an application by […] the Director of Public Prosecutions.
  (Section 8(1)(a))
   
• Authority to delegate:
  The Director may, to such extent as he may decide, delegate the exercise of his functions under this Part to a Crown Prosecutor.
  (Schedule 2, paragraph 2)
   
• Persons delegated to:
  Applications in the High Court: the Directors of Legal Services and Heads of Central Casework Divisions.
  Applications in the Crown Court: the Directors of Legal Services, Chief Crown Prosecutors, Deputy Chief Crown Prosecutors, Heads of Central Casework Divisions and Deputy Heads of Central Casework Divisions.
   
• Note that the actual application should be signed by the person with the authority to give consent, and the application should specify that the person making the application has such authority: R v Shirley & Shirley [2022] EWCA Crim 475.

Applications under rule 140 of the Land Registration Rules 2003

• Provision requiring personal consent and authority to delegate:
  Rule 140(1) and Schedule 5 provide that those who may apply under rule 140 include "The Director of Public Prosecutions or a member of the Crown Prosecution Service authorised to apply on behalf of the Director.
   
• Persons delegated to:
  Prosecutors in the Proceeds of Crime Division Civil Recovery Unit who have undergone Land Registry training.

Annex 3 – Civil recovery

The DPP has various civil recovery powers under Parts 5 and 8 of the Proceeds of Crime Act 2002. Prosecutors in the Proceeds of Crime Division are generally authorised to exercise those powers. However, approval should be sought at the following levels (or above) before the following applications are made:

• Civil recovery orders (Section 243): the Directors of Legal Services.
• Property freezing orders and associated orders for the appointment of a receiver, and interim receiving orders (sections 245A, 245E and 246): the Directors of Legal Services.
• Production orders and associated orders to grant entry (sections 345 and 347): the Head of the Proceeds of Crime Division.
• Search and seizure warrants (section 352): the Directors of Legal Services.
• Customer information orders (Section 363): the Head of the Proceeds of Crime Division.
• Account monitoring orders (section 370): the Head of the Proceeds of Crime Division.
• Disclosure orders (section 357): the Directors of Legal Services.
• Unexplained wealth orders, and any associated interim freezing order and appointment of a receiver (sections 362A, 362J and 362N): the Directors of Legal Services.
• Requests for assistance in obtaining relevant evidence outside the UK or applications to a judge to request such assistance (sections 375A(2) and (3), 352(5A) and 378(3):the Head of the Proceeds of Crime Division.

The same requirements apply in respect of the equivalent applications under the Proceeds of Crime Act 2002 (External Investigations) Order 2013 and the Proceeds of Crime Act 2002 (External Investigations) Order 2014. The same requirements also apply in respect of the equivalent applications under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, with the following addition: prohibition orders (article 141D) and associated orders for the appointment of a receiver (article 141I): the Directors of Legal Services.

Approval should also be sought before agreeing to act on behalf of the police in summary civil recovery proceedings. This approval may be given by the Directors of Legal Services.

In any of the above cases in which the Head of the Proceeds of Crime Division may give approval, they may refer the matter to a Director of Legal Services. Similarly, in any of the above cases in which a Director of Legal Services may give approval, they may refer the matter to the DPP. This should be done in any case where the person able to give approval considers that, by reason of the novelty, complexity or risk involved in the relevant application, the issue of whether to grant approval should be decided by a Director of Legal Services or the DPP.

Annex 4 – Application for AG Consents

All applications for AG consents must be submitted on the following template:  

Case name 

CPS area/ Prosecuting authority 

Security Marking 

[You may attach documents separately for any of the sections below but please ensure they are clearly identified with the section title and number] 

Annex 5 - Example template for grant of DPP’s personal consent

The following is an example of the template that should be provided where the DPP’s personal consent is sought. Appropriate changes should be made depending on the purpose for which consent is sought and the person giving consent.

I consent to the prosecution of [defendant's name] of [defendant's home address] for [an offence / offences] contrary to section(s) [XX] of the Bribery Act 2010.

Dated the [date] day of [month] [year]

THE DIRECTOR OF PUBLIC PROSECUTIONS