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Anna Wright considers the recent decision of Westminster Magistrates’ Court in R v Liam Ó g Ó hAnnaidh [2025] and the requirement for the consent of the Attorney General or Director of Public Prosecutions in certain criminal cases.
When matters of political sensitivity intersect with the criminal justice system, the requirement for the Attorney General (“AG”) or Director for Public Prosecutions (“DPP”) to provide consent to prosecute operates as a crucial procedural safeguard.
The recent decision in the case of R v Liam Ó g Ó hAnnaidh [2025], at Westminster Magistrates’ Court, has brought this frequently overlooked requirement into sharp focus. It serves as a pointed reminder to practitioners of the consequences (and advantages to the defence practitioner) if consent is not obtained within the statutory timeframe. In such cases, quite simply, no consent means no case.
There are several offences where statute expressly requires the consent of the AG or DPP for proceedings to be instituted. Such requires that consent is obtained before the proceedings are instituted as opposed to retrospectively.
The offences to which require consent of the AG or the DPP are usually those concerning national security or public policy. This includes, for example, offences such as trespass onto a designated site (section 128 Serious Organised Crime and Policing Act 2005), certain terrorism offences (such as section 13 Terrorism Act 2000), some public order offences, and war crimes. The consent required in these cases is said to act as a constitutional gatekeeping function to safeguard against unnecessary prosecutions.
The AG and DPP have the power to delegate the authorisation of charging decisions. Where the consent of the DPP is required, such can be given by a Crown Prosecutor (section 1(7) Prosecution of Offences Act 1985). However, certain statutes override the general delegation rules such as instituting proceedings under the Bribery Act 2010 or applications for re-trials for offences under Part 10 Criminal Justice Act 2003. Where the consent of the AG is required, the Solicitor General can exercise any functions of the AG (section 1 of the Law Officer Act 1997).
The requirement for consent to be obtained in certain cases does 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” (section 25(2)(a) of the Prosecution of Offences Act 1985). Subsequently, such procedures can be undertaken before the AG or DPP have provided their consent.
Where consent has not been obtained, the CPS Guidance on Consents to Prosecute (“the CPS Guidance”) states that an adjournment should be sought to allow consent to be obtained. A defendant may be remanded into custody or on bail where such an adjournment is granted (section 25(2)(a) Prosecution of Offences Act 1985). If the matter is indictable only, the CPS Guidance states that the court can exercise its powers under section 52(5) of the Crime and Disorder Act 1998 to adjourn proceedings prior to sending for such consent to be obtained (R v Welsh and Others [2015] EWCA Crim 1516). However, the recent case of Liam Ó g Ó hAnnaidh has illustrated that the CPS Guidance is not strictly in line with that as set out within the legislation and lines of authority.
There is a six-month statutory time limit for the institution of proceedings in relation to summary only offences, governed primarily by section 127(1) of the Magistrates’ Courts Act 1980 (“MCA 1980”). A magistrates’ court cannot proceed to try a matter unless the information was laid within six months from the time the offence was committed or the matter of complaint arose, unless another enactment expressly states otherwise.
There are, however, several offences which provide for an extended time limit to bring proceedings. This is triggered by the date that “evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings”. For example, such is provided for in some communications offences (e.g. section 127(5) Communications Act 2003). Where a certificate is provided, it is ordinarily to be taken at face value and the authority of DPP v Cook and Snowden [2022] EWHC 2963 (Admin) has provided it may only be impugned on three grounds, namely:
Where an offence requires the consent of the AG or DPP, the six-month time limit remains unless another time period is specified in the statute for the particular offence. On that basis, the presence of the AG’s consent does not extend or modify the time limit that ordinarily applies. Such consent is a separate and mandatory pre-condition for proceedings to be instituted.
The defendant, Liam Ó g Ó hAnnaiadh (hereafter “Liam O’Hanna”), was accused of holding up a Hezbollah flag whilst performing at a concert as part of the “Kneecap” group at the O2 Forum in Kentish Town on 21 November 2024. He was charged under section 13(1)(b) and (3) of the Terrorism Act 2000 (“TA 2000”) which requires the necessary consent from the DPP (with the AG’s permission to do so).
The chronology in respect of the proceedings against the defendant were as follows:
The matter was listed for legal argument at Westminster Magistrates’ Court before Senior District Judge Goldspring on 26 September 2025. The key issue was whether the proceedings were instituted lawfully within the six-month statutory time limit (s127 MCA 1980) and with the necessary consent as required by the statute (s117 TA 2000). The defence also argued that the charging decision had been made by the Metropolitan Police rather than the CPS. This final proposition was not accepted by the judge.
The defence argued that consent could not be obtained after the written charge was issued but before the first court appearance, on the basis that proceedings had already been instituted at that point.
The position of the Crown was that the proceedings were instituted at the time in which the defendant appeared before the court to answer the charge. This approach was in line with the current CPS Guidance which states that, for summary only offences, proceedings are instituted when a plea is taken. If such was correct, the proceedings in Liam O’Hanna would not have been invalid.
A leading authority in relation to the point at which proceedings are instituted is Price v Humphries [1958] 2 QB 353 which held that such proceedings are instituted at the point of the laying of the information and the issue of a summons.
The Senior District Judge in the Liam O’Hanna case stated that section 29(1) of the Criminal Justice Act 2003 is a modern-day statutory equivalent of the approach set down in Price v Humphries. Section 29(1) states that criminal proceedings are instituted when a written charge is issued (an approach confirmed in DPP v McFarlane [2019] EWHC 1895 (Admin)). He further stated that the word “information” is to be read as including a reference to the issue of a written charge pursuant to s29(1) CJA 2003, as set out within s30(5) of that Act (as per DPP v McFarlane [2019] EWHC 1895 (Admin) and Price v Humphries [1958] 2 QB 353).
The defence had argued that the burden lies with the prosecution to prove to the criminal standard that the case was brought within the necessary time period (Atkinson v DPP [2005] 1 WLR 96) and thus requires that a complete charge containing all the “relevant details” – arguably the AG’s consent in this scenario – is issued (per Brown v DPP [2019] 1 WLR 4194).
The Senior District Judge in Liam O’Hanna concluded that the authorities “reinforce the central proposition that proceedings are instituted at the moment a written charge and requisition is issued, not when a defendant first appears before a court or enters a plea”. Therefore, the approach as set out within the CPS Guidance does not reflect that specified by s29(1) CJA 2003.
The approach of the court in Liam O’Hanna is very much in line with the leading authority of R v Lalchan [2022] EWCA 736. In that case, the defendant was convicted of an offence contrary to section 18(1)(a) of the Public Order Act 1986, an offence requiring the consent of the Attorney General which was given after he was convicted. The prosecution had sought to argue that the failure was a mere procedural omission and technicality. The defence argued that the proceedings were invalid as it had not been obtained prior to the institution of proceedings. The Court of Appeal agreed that such rendered the conviction invalid. The lack of consent was not a “technicality” but a protective measure from an undesirable or inappropriate prosecution as justified in the 1988 Report of the Law Commission on Consents to Prosecution (Law Com No 255).
The Liam O’Hanna case highlights the approach of the lower courts to matters of this sort – namely, that the published CPS Guidance is incorrect: the authorities are clear that the proceedings are instituted well before a plea is entered.
However, whilst this offers protection to the defendant where consent has not been obtained, there are circumstances which could result in a prosecution for the offence in any event. In R v Lalchan the court issued a writ of venire de novo allowing the defendant to be re-tried as consent had now been obtained (as adopted previously in R v Gowans [2015] EWCA Crim 952). This built on the decision in Stromberg [2018] EWCA Crim 561 which addressed the correct procedure for seeking a writ of venire de novo in cases where prosecutorial consent had not been properly obtained. The issue of a writ of venire de novo is a remedy available to the Court of Appeal upon an application for leave to appeal conviction and no free-standing application for such a writ can be made. Of note, such power is not available to the court in relation to a summary trial as per Bahbahani [2018] EWCA Crim 95.
Therefore, whilst the consent provisions offer protection to defendants there are avenues that the prosecutor can pursue to secure the eventual prosecution of the defendant in any event.
Whether or not AG or DPP’s consent has been obtained can be relevant in private prosecutions. An individual’s right to bring a private prosecution is preserved by section 6(1) of the Prosecution of Offences Act 1985 (“POA 1985”). The 1988 Report of the Law Commission on Consents to Prosecution (Law Com No 255) had identified the “harm that can be caused by an unfettered right of private prosecution”.
Offences which require the consent of the AG or DPP are an exception to the general rule that there is no obligation to notify the CPS, DPP or any state agency that it is contemplating or commenced a private prosecution. However, such right is limited, as section 6(2) POA 1985 enables the DPP to take over a private prosecution where consent is required. Further, there is now limitation on the ability to apply for a warrant in respect of war crimes and similar other offences (section 153 Police Reform and Social Responsibility Act 2011).
Whilst the decision or omission to institute proceedings in public prosecutions without the AG or DPP’s consent can render the proceedings invalid, the impact could be more significant where such fault is made during a private prosecution. Failing to seek the relevant consent may result in the prosecuting party being made subject to a wasted costs order under section 19A POA 1985. It is therefore important that the private prosecutor fully understands the limitations and ensures compliance with the requisite formalities.
The recent decision in Liam O’Hanna underscores the paramount importance of adhering to statutory consent requirements in criminal prosecutions. The procedural requirement for consent is not to be an afterthought but a prerequisite obligation that must be satisfied before the proceedings are issued. Whilst it is rumoured that Liam O’Hanna’s case is likely to be appealed, the authorities remain clear that proceedings are instituted prior to reaching the plea stage thus any appeal is unlikely to succeed.
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