The Director of Public Prosecutions v Liam Óg Ó Hannaidh

This is an appeal by case stated against a decision of the Chief Magistrate for England and Wales, Senior District Judge Paul Goldspring (“the judge”). By a written ruling dated 26 September 2025 the judge held that the court had no jurisdiction to try a charge (“the written charge”) which had been preferred against the respondent in circumstances we will set out below. The written charge was in these terms:-

“On 21 November 2024, in a public place, namely the O2 Forum, Kentish Town, London, displayed an article, namely a flag, in such a way or in such circumstances as to arouse reasonable suspicion that he is a supporter of a proscribed organisation, namely Hizballah, contrary to section 13(1)(b) and (3) of the Terrorism Act 2000.”

The Terrorism Act 2000 (“TACT”) establishes a scheme whereby organisations may be proscribed and sets out the consequences of such proscription. A number of criminal offences were created in TACT in support of this scheme, including that charged in this case. Section 13 of TACT provides, so far as material:-

13.

— Uniform and publication of images.

(1)

A person in a public place commits an offence if he–

(a)

wears an item of clothing, or

(b)

wears, carries or displays an article,

in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.

……..

(3)

A person guilty of an offence under this section shall be liable on summary conviction to–

(a)

imprisonment for a term not exceeding six months,

(b)

a fine not exceeding level 5 on the standard scale, or

(c)

both.

The judge ruled that the proceedings for the offence had been instituted without the permission of the Attorney General, as required by section 117(2A) of TACT.

The judge then ruled that the 6 month time limit for summary only offences established by section 127 of the Magistrates’ Court Act 1980 (“MCA 1980”) had expired before the Attorney General’s permission had been given, and therefore that the court had no jurisdiction to try the charge.

This case has attracted a degree of public attention. It is important therefore to begin by saying that the judge’s decision, and ours on this appeal, turned on a very narrow and technical legal issue and has nothing to do with whether the respondent committed the offence set out in the charge. It is not necessary for us to set out the alleged facts giving rise to the charge, which are quite irrelevant to what we have to decide.

Section 117 of TACT is, so far as material, in these terms:-

117.

— Consent to prosecution.

(1)

This section applies to an offence under any provision of this Act other than an offence under–

(a)

section 36,

(b)

section 51,

(c)

paragraph 18 of Schedule 7,

(d)

paragraph 12 of Schedule 12, or

(e)

Schedule 13.

(2)

Proceedings for an offence to which this section applies–

(a)

shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions, and

(b)

shall not be instituted in Northern Ireland without the consent of the Director of Public Prosecutions for Northern Ireland.

(2A)

But if it appears to the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland that an offence to which this section applies 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, his consent for the purposes of this section may be given only with the permission–

(a)

in the case of the Director of Public Prosecutions, of the Attorney General;

It is common ground that there came a time when it did appear to the Director of Public Prosecutions (“DPP”) that the offence he wished to prosecute had been committed “for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom”, and accordingly he required the permission of the Attorney General to give his consent to the institution of proceedings.

Section 127(1) of the MCA 1980 provides, so far as is relevant to this case, as follows:

“…a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”

Section 30(5)(a) of the Criminal Justice Act 2003 (“CJA 2003”) provides that any reference to an information or to the laying of an information should be read as including a reference to a written charge or to the issue of a written charge.

Therefore, for the purposes of section 127(1) of the MCA 1980, a magistrates’ court shall not try proceedings initiated by written charge unless the written charge was issued within 6 months from the time when the offence was committed.

The procedure for issuing a written charge is available in any case regardless of the offence the particular defendant is accused of having committed. Section 29 of the CJA 2003 provides:-

(1)

A relevant prosecutor may institute criminal proceedings against a person by issuing a document (a “written charge”) which charges the person with an offence.

(2)

Where a relevant prosecutor issues a written charge, it must at the same time issue –

(a)

A requisition or

(b)

a single justice procedure notice.

(2AA)

A single justice procedure notice may be issued only if—

(a)

the offence is a summary offence not punishable with imprisonment, and

(b)

the person being charged has attained the age of 18, or is not an individual.

(2A)

A requisition is a document which requires the person on whom it is served to appear before a magistrates' court to answer the written charge.

(2B)

A single justice procedure notice is a document which requires the person on whom it is served to serve on the designated officer for a magistrates' court specified in the notice a written notification stating—

(a)

whether the person desires to plead guilty or not guilty, and

(b)

if the person desires to plead guilty, whether or not the person desires to be tried in accordance with section 16A of the Magistrates' Courts Act 1980 [trial by single justice on the papers].

A relevant prosecutor can include a police officer.

It will be noted that 29(1) applies both to written charges accompanied by a requisition and written charges accompanied by a single justice procedure notice. The latter procedure does not involve any obligation on the defendant to come to court to answer the charge.

The offence in the written charge was allegedly committed on 21 November 2024.

In May 2025 the police sought and received some advice from the Crown Prosecution Service (“CPS”) and arranged to interview the respondent through his solicitors.

Following that process, on 19 May 2025, the police requested a charging decision from the CPS. On 20 May 2025, the CPS made a charging decision and provided it to the police. This authorised the prosecution of the respondent for the offence stated in the written charge. It did constitute the consent of the DPP, not personally but by delegation which is accepted to be lawful, but lacked the permission of the Attorney General to give it.

On 21 May 2025, the police issued a written charge and requisition pursuant to the procedure in section 29 of the CJA 2003, and sent it by first-class post to the respondent.

The requisition required the respondent to attend the Westminster Magistrates’ Court on 18 June 2025 to answer the charge.

On 22 May 2025, pursuant to section 117(2A)(a) the Attorney General gave the DPP permission to consent to the respondent’s prosecution for the section 13(1)(b) offence, following which the DPP gave his consent to that prosecution pursuant to section 117(2)(a). This was the second time the DPP had consented to it. 22 May 2025 was more than 6 months from the time when the offence was allegedly committed.

On the same day, the police issued a second written charge and requisition in the same terms as the first written charge and requisition that had been issued on 21 May 2025. That second written charge and requisition was also posted to the respondent.

On 18 June 2025, the respondent appeared at the Westminster Magistrates’ Court to answer the written charge. On that occasion the defence indicated that it would be seeking to argue that the proceedings against the respondent had been improperly instituted and that they were null and void.

In response to that challenge, the DPP accepted before the judge that the second written charge had been issued out of time and could not proceed. He submitted that the proceedings initiated by the first written charge had been issued in time, i.e. that they had been “instituted” for the purposes of section 29(1) of the 2003 Act. On the other hand, he submitted that they had not been and were not void for lack of the permission of the Attorney General because they had not been “instituted” for the purposes of section 117(2)(a) of TACT before that permission was given. Alternatively, they were in any event saved by section 25(2) of the Prosecution of Offences Act 1985 (“POA 1985”).

The judge rejected those submissions. They have been amplified and repeated before us by Mr. Paul Jarvis KC and Mr Michael Bisgrove in reply on behalf of the DPP. The Attorney General made submissions at the invitation of the court by Ms Jocelyn Ledward KC. The purpose of those submissions was to assist the court as to the relevant principles raised, in the exercise of the Law Officers’ wider functions in the public interest, not to make any representations as to the determination of the appeal in this particular case. Mr Jude Bunting KC on behalf of the respondent has supported the decision of the judge on all points.

We have set out the relevant parts of TACT, the CJA 2003 and the MCA 1980 above, in order to explain in the chronology the procedural steps which were taken. We should add now sections 15(2) and 25 of the POA 1985.

Section 15(2) of the POA 1985 is a definition section, defining expressions for the purposes Part 1 of that Act. Part 1 establishes and regulates the Crown Prosecution Service. It includes this:-

(2)

For the purposes of this Part, proceedings in relation to an offence are instituted—

…..

(ba)

where a relevant prosecutor issues a written charge and requisition for the offence, when the written charge and requisition are issued;

….

Section 29(1) of the CJA 2003 and section 117 of TACT are not in Part 1 of the POA which does not therefore formally define terms where they appear in those sections. However, Part 1 of the POA 1985 uses the word “instituted” frequently and deals, among other things, with proceedings which the DPP may institute himself, or which he may take over if they have been instituted by someone else. These are powers of very wide application and apply to the overwhelming majority of criminal cases. It would make very little sense if this statutory definition in the POA 1985 was divergent from other definitions elsewhere. See below for discussion of the approach to statutes in pari materia.

Section 25 of the POA 1985 is in these terms:-

25.

— Consents to prosecutions etc.

(1)

This section applies to any enactment which prohibits the institution or carrying on of proceedings for any offence except—

(a)

with the consent (however expressed) of a Law Officer of the Crown or the Director; or

(b)

where the proceedings are instituted or carried on by or on behalf of a Law Officer of the Crown or the Director;

and so applies whether or not there are other exceptions to the prohibition (and in particular whether or not the consent is an alternative to the consent of any other authority or person).

(2)

An enactment to which this section applies—

(a)

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; and

(b)

shall be subject to any enactment concerning the apprehension or detention of children or young persons.

The issues thrown up by these provisions have been considered by the courts in a number of decisions which were cited by the judge.

It is convenient to start with R v Lambert [2009] EWCA Crim 700; [2010] 1 WLR 898 because it contains a treatment of relevant earlier decisions, at [5]-[8]. It concerns an either way offence contrary to TACT to which the same consent and permission requirements were applied by section 117(2) and (2A) as apply in the present case. No valid consent with permission was in place until after the plea before venue hearing under section 17A of the MCA 1980 had been held. The judge had found that section 25(2) of the POA 1985 meant that the plea before venue hearing was a procedural step which could be taken before consent with law officer permission was obtained. The Court of Appeal disagreed and held that the time at which proceedings were “instituted” for the purposes of section 117(2) of TACT was no later than the time at which the defendant was brought to court following charging, and when the charge was entered on the court register. Section 25(2) of the POA permitted only those actions which were necessary to apprehend, charge and remand an alleged offender in custody or on bail to be carried out in the absence of consent with law officer permission. Its purpose is to enable a suspect to be apprehended and detained “if there is not time to obtain permission”, see [21]. This did not include the plea before venue hearing.

The court said this about when the proceedings were instituted:-

“19 The word “institute” is commonly used to mean commence; that is its ordinary meaning and there is ample authority to support that view. However, as Saville LJ observed in Director of Public Prosecutions v Cottier [1996] 1 WLR 826, 832, the answer to the question when proceedings arebegun or instituted depends on the context in which the words are used andthe purpose of the provision. There are many authorities including Price v Humphries [1958] 2 QB 353; R v Brentwood Justices, Ex p Jones [1979]RTR 155 and Rockall v Department for Environment, Food and Rural Affairs [2007] 1 WLR 2666 but counsel could find none that was directly inpoint. In the context of the Terrorism Act 2000 it could well be that in thelight of section 15(2) of the Prosecution of Offences Act 1985 and theordinary meaning of the term institute, that proceedings were institutedwhen the defendant was charged. However, there can be no reason forcontending, as a matter of language and context, that the time at whichproceedings were instituted in respect of the defendant for the offence underthe Terrorism Act 2000 was any later than the time at which the defendantwas brought to court following the charging and when the charge wasentered onto the court register. In any sense of the word, the proceedingsmust have been instituted when the charge was entered into the court register. Even if that were not correct, it would be impossible to contend that the statutory provisions in section 17A of the 1980 Act which set out detailed steps the court was to take during the course of a plea before venue hearing were not steps taken after proceedings had been instituted; the terms and effect of section 17A(6) are, as we have set out, clear. Section 17C also underlines the conclusion that proceedings have been instituted by the time of a plea before venue hearing, as the section refers to the adjourning and resumption of proceedings.

20 It follows, therefore, that the proceedings against the defendant were instituted before the Attorney General’s permission was given to enable the Director to consent.”

This case therefore decides that the plea before venue hearing in either way cases either is or takes place after the institution of proceedings. It leaves open the possibility that proceedings may have actually been instituted before that, at the time of charge. This does not decide the point in the present case, but illustrates the proper approach. It is conclusive and binding on the relevance, or rather the lack of it, of the section 25(2) saving provision. It seems unlikely (although it may perhaps be possible) that the written charge and requisition procedure will ever involve the kind of emergency acts which fall within the protection of that provision as there interpreted. We cite R v Lalchan [2022] EWCA Crim 736; [2022] QB 680 below in support of that conclusion.

This reading of section 25(2) of the POA 1985 was confirmed in R v Welsh (Christopher)(Junior) [2015] EWCA Crim 906; [2016] 1 Cr App R 8.

In R v Welsh (Senior) [2015] EWCA Crim 1516; [2016] 4 WLR 13 the court decided that proceedings were “instituted” for the purposes of section 4 of the Criminal Law Act 1977 at the point when an indictable only case was sent for trial under section 51 of the Crime and Disorder Act 1998.

Lambert and Welsh (Senior) are decisions about either way and indictable only offences and they address the old decisions in R v Elliott 81 Cr App R 115, R v Whale [1991] Crim LR 692 and R v Bull (1994) 99 Cr App R 193. These are all attempts, under different statutory and procedural regimes, to apply the test for the institution of proceedings - “the time when a person comes to court to answer the charge”- enunciated by Stephen Brown LJ in Elliott at p121. Lambert is not an endorsement of that test, because it allows the possibility that proceedings for an either way offence may actually be instituted when the defendant is charged. Welsh identified the section 51 sending hearing as the point of institution for indictable only cases which is very frequently an administrative hearing where nothing of substance occurs. Taken together, they represent a substantial inroad into the procedural flexibility which Elliott might permit.

This reservation about the Elliott test is expressed in Lambert at [16]:-

“The analysis of the statutory language: the approach in R v Bull

16 However, we do not consider it correct to apply the literal phraseology used in the judgments in R v Elliott 81 Cr App R 115 and R v Whale [1991] Crim LR 692, as if the phraseology were a statutory provision. There is in R v Bull 99 Cr App R 193 a clear analysis of the proper approach which seeks to apply the statutory language. Applying that analysis to the issue before us, there are two questions. (i) When were the proceedings instituted? (ii) If the permission of the Attorney General was not given before the proceedings were instituted, was the plea before venue hearing within the scope of section 25(2) of the 1985 Act?”

This is expressly approves of the approach in R vBull (1994) 99 Cr App R 193, 207where the court said:-

“When considering the question whether proceedings have been instituted by a specified person or by or with the consent of a specified person, it is essential to have regard to the particular procedure adopted in the given case.”

The question is therefore when, under the particular procedure which is under consideration, the proceedings are to be regarded as having been “instituted” or commenced. The present case concerns an entirely new way of initiating criminal proceedings created by section 29 of the Criminal Justice Act 2003. It is a creation of statute, and if the statutory provisions which create it also define what constitutes the “institution” of criminal proceedings by this method then that removes the need, and facility, to read in other rules from other procedural schemes. Section 29(1) does say that proceedings are instituted by the issue of a written charge.

It is true, as the prosecution submit, that if the “institution” of proceedings occurs when the written charge and requisition are issued then that will not only affect summary offences but may include much more serious crimes. Where the offence is either way or on indictment, it will be possible to continue to prosecute the case because there is probably no impediment, save perhaps if an abuse of process is involved, in starting again from the point where the proceedings were a nullity because of the lack of consent with law officer permission. This issue was left open in Lambert at [23] but the court said that the Crown Court in that case could reconstitute itself as a magistrates’ court and hold a new plea before venue hearing.

It is only in respect of summary offences that the issue becomes critical because of the section 127 MCA 1980 time limit. There is a significant policy objective in that provision. Summary offences are supposed to be dealt with summarily because they are less serious than other classes of case. The time limit is in place to promote that objective. It would be quite wrong to adopt strained and unnatural constructions of plain words in primary legislation in order to save one summary only case from the application of that important time limit.

We therefore consider that the issue to be resolved on this appeal is the meaning of section 29(1) of the Criminal Justice Act 2003. This says: “A relevant prosecutor may institute criminal proceedings against a person by issuing a document (a “written charge”) which charges the person with an offence”.

That seems plain enough. TACT does not contain any definition of what the “institution” of proceedings under it may involve. It simply prohibits institution without consent with the Attorney General’s permission. This is designed to ensure supervision by the Attorney General of the use of criminal prosecution in many terrorism cases where there is a foreign context. Administrative convenience may favour an approach which allows this consent and permission to be given at any stage in the proceedings, but the apparent statutory purpose is not served by it. If supervision is required, as Parliament has decided it is, what purpose is served by allowing cases to be undertaken without it, save in the emergency setting contemplated by section 25(2) of the POA as explained above?

We accept the principle explained by the editors of Bennion Bailey and Norbury Statutory Interpretation (7^th ed) at page 391:-

“The first point is that the application of a guide in relation to one Act will not generally be binding in relation to a different Act. As Cross said, ‘A decision on the interpretation of one statute generally cannot constitute a binding precedent with regard to the interpretation of another statute.” This is because the weight to be given to a particular interpretative factor is not capable of precise assessment, and varies from Act to Act. It follows that an expression may have different legal meanings in different Acts (and even within the same Act, though this is less likely). As Sir Brian Leveson P said in R (on the application of Privacy International) v Investigatory Powers Tribunal:

‘. . the proper approach to interpretation of this (or any) statutory provision is not simply a matter of looking at the words and comparing them with other words used in another statute where the context might be entirely different.’”

However, the statutes presently under consideration do not exist in entirely different contexts. They all concern the way in which criminal proceedings are instituted and, in some of them, the requirement for consent or permission from a law officer prior to institution. Whether or not Lord Mansfield’s dictum in R v Loxdale (1758) 1 Burr 445 at 447 strictly applies, in my judgment some clear basis would have to exist to justify construing the same word as having different meanings in different closely related contexts. “Instituted” or “institute” are defined for the purposes of section 29 of the CJA 2003, section 15 of the POA 1985, and section 127 of the MCA 1980 as explained by section 30 of the CJA 2003. The issue is whether that meaning should be applied where the same word is used in the same context in section 117 of TACT. Lord Mansfield said:-

“Where there are different statutes in pari materia, though made at different times. Or even expired and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other”.

Attempts hitherto to produce a consistent approach across different procedures and offence types have not been entirely successful. The present decision concerns only the interface between the written charge procedure established by section 29 of the CJA 2003 and section 117 of TACT. It may be thought to be a recipe for confusion to have a different rule on what can validly be done before consent with law officer permission is given depending on whether the proceedings are begun by written charge, summons or a charge in the police station, and on whether the offence charged is triable only on indictment, either way, or summary only. In mitigation of that confusion, it is worth pointing out that the only persons who must comply with these requirements are the DPP and the Attorney General, who are sophisticated users of the justice system, supported by expert staff.

The written charge procedure has been considered in two decisions of the Divisional Court which involved different issues from those in this case. These were Brown v DPP [2019] EWHC 798 (Admin) and DPP v Macfarlane [2019] EWHC 1895 (Admin); [2020] 1 Cr App R 4. Brown decided that the written charge was “issued” when it was completed with all relevant details and in the form needed for service. “Issue” therefore happens in the office by the mere creation of a document even though nothing at all has been done with it. Macfarlane did not find it necessary to address that issue, see [23]. It decided that an email which was not in the correct form used for issuing written charges, and which was not accompanied by either a requisition or a single justice procedure notice was, nevertheless, a “written charge” for the purposes of section 29 of the CJA 2003. The court in Macfarlane does not appear to have been referred to the definition contained in section 15(2)(ba) of the POA 1985, see [25] and [26] above. Both decisions accept that the proceedings were instituted by the issue of a written charge before the written charge was served on the proposed defendant, which is, after all, what the relevant statute says. This meant, in each case, that the written charge had been issued in time for the purposes of section 127(1) of the MCA 1980 and section 30(5)(a) of the CJA 2003. We adopt that part of the reasoning of these cases without expressing any view about the correctness of the decisions as they concern different questions from the present case.

The Court of Appeal in Lalchan considered similar issues in the context of section 27 of the Public Order Act 1986 which provides that “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”. No consent was given before Lalchan was convicted of an offence. The court quashed his conviction. At [34] and [35] Lord Burnett LCJ giving the judgment of the court said:-

“[34]…..It is true that the subsection does not explicitly spell out the consequences of failure to obtain consent before proceedings are instituted. But the natural implication, from the language used, is that the proceedings are to be regarded as invalidated if consent is not obtained before the proceedings are instituted. Moreover, such an interpretation achieves a desirable certainty and uniformity of outcome.

[35] This interpretation, in our judgment, is strongly supported by the wording of section 25 of the Prosecution of Offences Act 1985. For that section, by subsection (2), explicitly validates the arrest or remand of a person for any offence even where consent to the institution of proceedings has not been obtained. It is an obvious corollary that all other steps were not intended to be validated.”

At [40] the court explained the purpose of consent provisions. In our judgment the slightly different form of the consent provisions in TACT and in section 27 of the Public Order Act 1986 is immaterial to this explanation which is equally true of both:-

“Here the requirement is for the consent of the Attorney General, who is to be taken to be the guardian of the public interest. There are cogent reasons why the prior consent of a Law Officer was intended to be a condition precedent (the language used by Sir Donald Somervell: see para 31 above) for proceedings to be valid. Those reasons, as a justification for the need for prior consent, were conveniently summarised in the 1998 Report of the Law Commission. Indeed, it can properly be inferred from the language of section 27(1) of the 1986 Act that one part of the Parliamentary intention was not simply to protect a putative defendant from undesirable conviction, it was to protect a putative defendant from undesirable prosecution. Accordingly, the ordinary meaning and implication of the provisions of section 27(1) of the 1986 Act are supported by purposive considerations.”

There is no reason why TACT should be construed any more generously than section 27 of the 1986 Act. There is no reason why the word “instituted” in section 117(2)(a) of TACT should be construed so that it has any different meaning from the word “institute” in section 29(1) of the CJA 2003. If proceedings have been instituted for the purposes of section 29(1), they have also been instituted for the purposes of section 117(2)(a).

For these reasons we consider that the first written charge was issued on 21 May 2025 and this was when the proceedings were instituted for the purposes of section 117(2)(a) of TACT. That was a nullity because of the terms of section 117(2) and (2A) of TACT. It follows that no written charge was issued within 6 months of 21 November 2024 and the judge was right to hold that he had no jurisdiction to try any summary only offence alleged to have been committed on that date.

It is a matter of concern that a charge which both the DPP and the Attorney General considered met both parts of the Full Code Test for Crown Prosecutors will never now be determined. There was, they decided, a realistic prospect of conviction and the prosecution was in the public interest. We have not investigated the reasons for this failure and nor do we seek to attribute blame. That is not because these circumstances are not worthy of consideration but because they are irrelevant to our decision.

I would therefore dismiss this appeal.

For the purposes of public understanding we should spell out what this means. The respondent has not been tried for his alleged conduct on 21 November 2024 and will not be tried. He has not been convicted, and he has not been acquitted. This decision will be of no benefit to anyone else who finds themselves subject to a written charge alleging an offence contrary to section 13 of TACT, provided that the DPP gives consent to the proceedings against them, where applicable with the permission of the Attorney General, before the written charge is issued, and provided that all that happens within 6 months of the date of the alleged offence.

I respectfully agree and note that our decision is consistent with the decision of the Divisional Court in Price v Humphries [1958] 2 QB 353, the correctness of which has never been doubted in any of the subsequent authorities to which we were referred.