Lalchan, R. v

Factual and Procedural Background

The case concerns an appeal against a conviction under section 18(1) of the Public Order Act 1986 ("the 1986 Act") for stirring up racial hatred. The appellant was convicted at the Central Criminal Court on 22 September 2021. However, it was later discovered that the required consent of the Attorney General to institute proceedings had not been obtained prior to the trial. The consent was only given on 29 November 2021, after conviction but before sentencing. The appellant sought to quash the conviction on this basis, while the respondent disputed that the conviction should be set aside.

The appellant faced multiple charges arising from anti-Semitic and homophobic graffiti in 2019, with the indictment eventually including five counts, of which count 5 related to stirring up racial hatred under the 1986 Act. The appellant pleaded guilty to some counts but was tried on others, including count 5. The jury convicted the appellant on count 5 unanimously. After the oversight regarding consent was identified, the appellant applied to set aside the proceedings relating to count 5. The appeal was granted leave and an extension of time was allowed to consider the matter.

Legal Issues Presented

1. Whether a conviction for an offence requiring the Attorney General's consent before proceedings are instituted can stand if such consent was not obtained prior to the institution of proceedings.
2. The statutory effect and Parliamentary intention behind section 27(1) of the Public Order Act 1986 regarding the necessity of prior consent.
3. The consequences of failure to obtain prior consent on the validity of proceedings and the safety of the conviction.
4. Whether the failure to obtain consent constitutes a jurisdictional or procedural defect and the implications thereof.
5. Whether a writ of venire de novo should be issued to enable a fresh trial following quashing of the conviction.

Arguments of the Parties

Appellant's Arguments

• The statutory language of section 27(1) of the 1986 Act is clear, imperative, and requires prior consent before proceedings are instituted.
• Established case law (Angel and Pearce) supports the position that failure to obtain prior consent invalidates proceedings and requires quashing of any conviction.
• Parliament intended the prior consent requirement to have substantive effect, replicating the effect of earlier legislation.
• The requirement for prior consent is not a mere procedural technicality and must be treated as a condition precedent to valid proceedings.
• Allowing convictions to stand without prior consent would render the statutory requirement meaningless.

Respondent's Arguments

• The requirement to obtain the Attorney General's consent prior to instituting proceedings is not jurisdictional but procedural.
• The failure to obtain consent before count 5 was added was a procedural error that should not invalidate the proceedings or conviction.
• Modern authority favors focusing on the fairness of the trial and prejudice to the defendant rather than strict nullity doctrines.
• Consent given at any stage before the court becomes functus officio (including after conviction and sentencing) suffices to cure the defect.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the clear, imperative language of section 27(1) of the 1986 Act, which expressly prohibits instituting proceedings without the Attorney General's consent. The statutory language, statutory context, and legislative history collectively indicate that Parliament intended the consent requirement to be a condition precedent to valid proceedings. The court rejected the respondent's argument that the failure to obtain prior consent was a mere procedural defect that could be cured by subsequent consent or that the fairness of the trial alone should determine validity.

The court noted that section 25(2) of the Prosecution of Offences Act 1985 validates certain procedural steps (such as arrest) despite lack of consent, implying that other steps, including instituting proceedings, are not validated without consent. It found that the reasoning in earlier authorities (Angel, Pearce) supports the conclusion that failure to obtain prior consent invalidates proceedings and convictions.

The court also rejected the respondent's assertion that consent could be given after conviction and sentencing, observing that this interpretation undermines the statutory purpose and reduces the Attorney General's role to a nullity. The court highlighted the public interest rationale behind the consent requirement, which serves as a safeguard against undesirable prosecutions affecting public policy and minority protections.

In balancing the statutory language, precedent, and purposive considerations, the court concluded that the conviction on count 5 was unsafe and must be quashed due to the invalid institution of proceedings without prior consent.

Regarding the writ of venire de novo, the court held that the invalidity was limited to the count 5 proceedings and did not invalidate the entire Crown Court proceedings. It therefore found it appropriate to issue a writ allowing a fresh trial on that count.

Holding and Implications

The court ALLOWED THE APPEAL and quashed the conviction on count 5 for stirring up racial hatred under section 18(1) of the Public Order Act 1986, on the basis that the proceedings were instituted without the required prior consent of the Attorney General, rendering them invalid.

The court directed the issue of a writ of venire de novo to permit a fresh trial on count 5. The decision does not affect the other counts or the overall Crown Court proceedings. No new precedent was established beyond affirming the mandatory and jurisdictional nature of the Attorney General's consent requirement under section 27(1) of the 1986 Act.