Consent, authorisation & the limits of prosecution

The collapse of the prosecution in R v Óg Ó hAnnaidh is a moment of quiet but significant importance for criminal law practitioners.

At first glance, the outcome appears to stem from a procedural or administrative oversight. However, in reality, it is a potent demonstration of how Parliament frames the boundaries of state power in the criminal justice system.

Liam Óg Ó hAnnaidh, a member of the Irish rap group Kneecap (where he performs under the stage name Mo Chara), was charged with a single summary-only offence under Section 13 of the Terrorism Act 2000 (‘the Act’). It was alleged that, during a London concert on 21 November 2024, he displayed a flag in a manner likely to arouse reasonable suspicion of support for a proscribed organisation. A written charge and postal requisition were issued on 21 May 2025. However, as of that date no consent had been obtained from either the Director of Public Prosecutions (‘DPP’) or the Attorney General (‘AG’) as required by section 117(2A) of the Act. When the matter came before Westminster Magistrates’ Court in September 2025, the prosecution conceded that the requisite consent had not been secured prior to the institution of proceedings. The court accordingly held that the charge was a nullity and that it lacked jurisdiction to hear the case. The CPS has since indicated that it intends to appeal the decision.

Statutory framework

The outcome in R v Óg Ó hAnnaidh was the result of three distinct statutory mechanisms that collectively determine when, how, and by whom prosecutions can be instituted. Each mechanism represents a well-established feature of English criminal procedure, yet together they form a constitutional structure that defines the lawful boundaries of the state’s coercive power. Here, we explore these three statutory frameworks and the way in which they operate to structure prosecutorial authority.

The six-month rule

Section 127(1) of the Magistrates Courts Act 1980 establishes a strict six-month limit for bringing summary offences before the court providing that “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.”  Although proceedings are now instituted by issuing a written charge and requisition rather than by ‘laying an information’, the courts have consistently held that the six-month limit is not a matter of prosecutorial discretion but a strict jurisdictional limit. This means that if a charge is brought even a single day late, the magistrates’ court has no authority to hear the case and the prosecution must fail.

This six-month time bar reflects a deliberate legislative policy concerning the nature and purpose of summary offences. It recognises that less serious offences should be dealt with through a streamlined process designed to reach resolution within a defined period. This approach not only promotes procedural efficiency but also rests on a broader principle about the proper limits of state power and the duty to act without undue delay. By compelling the state to act promptly, the rule mitigates the risks that delay poses to the integrity of criminal proceedings. It also reinforces the principle that criminal prosecutions must be conducted in a manner that minimises uncertainty, preserves fairness, and sustains public confidence in the administration of justice. In this way, the six-month rule functions as a substantive safeguard that reflects a broader constitutional commitment to legality, timeliness, and the fair exercise of state power.

Consent and authorisation

Similarly, Section 117 of the Terrorism Act 2000 establishes a strict requirement for consent before proceedings may be brought under the Act, providing that “proceedings for an offence… shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions.” In certain cases, an additional layer of authorisation applies. Section 117(2A) states that where an alleged offence has been committed outside the United Kingdom or is connected, wholly or partly, with the affairs of another country, the DPP may grant consent only with the permission of the AG. This two-tier process ensures that prosecutions with potential foreign political or diplomatic implications are subject to both prosecutorial and executive oversight. The provision is expressed in absolute terms, meaning that proceedings cannot lawfully be instituted without the requisite consent. If proceedings are brought without it, they are void from the outset and cannot be retrospectively validated.

The requirement for consent and authorisation performs two distinct constitutional functions. At its core, the requirement of prosecutorial consent and authorisation functions as a mechanism of accountability within the criminal justice system. By making certain offences subject to the prior authorisation of the DPP, or where appropriate, the AG, Parliament ensures that decisions to prosecute such offences are not made in isolation but, rather, are subject to oversight by senior legal officers who are accountable to Parliament and open to public scrutiny. At the same time, this safeguard must operate in a way that preserves prosecutorial independence, ensuring that decisions are guided by legal and evidential considerations rather than political influence.

The consent requirement also safeguards proportionality by regulating how the state exercises its coercive powers in exceptionally sensitive areas. This function is most evidenced in prosecutions under the Terrorism Act 2000, where decisions engage issues of national security, diplomacy and fundamental individual rights. The involvement of the DPP and the AG introduces an additional level of scrutiny that ensures prosecutions are not only legally viable but also necessary and balanced within the wider public interest. Through this process, decisions to prosecute are made with full awareness of constitutional implications and potential impact beyond the immediate case. In doing so, it prevents criminal law from being used disproportionately or without adequate justification. It also reinforces public confidence that the criminal law is being exercised responsibly, proportionately, and in accordance with constitutional principles.

Institution 

The third statutory mechanism engaged in R v Óg Ó hAnnaidh concerns the point at which criminal proceedings are deemed to be instituted. Section 29 of the Criminal Justice Act 2003 and section 15(2)(ba) of the Prosecution of Offences Act 1985 provide that summary proceedings are instituted when a written charge and requisition are issued. The courts have confirmed this interpretation in DPP v McFarlane [2019] EWHC 1895 (Admin). This rule establishes that the six-month time limit and the statutory consent requirement must be satisfied at the exact moment the charge is issued. Importantly, this means that consent cannot be granted retrospectively, and issuing a new charge after the expiry of the time limit does not remedy the defect.

The role of defence lawyers  

R v Óg Ó hAnnaidh was widely portrayed in the media as a prosecution that collapsed because of an administrative error or procedural technicality. For defence practitioners, this judgment serves not only as a reminder of the constitutional safeguards that operate through procedural law but also as a practical roadmap, highlighting the importance of careful procedural analysis.

Before any summary prosecution, it is crucial for practitioners to calculate the precise statutory time limits by identifying the date of the alleged offence and the point at which the written charge and requisition should have been issued. This establishes whether proceedings were brought within the timeframe prescribed by Parliament. The next step is to examine whether the necessary prosecutorial consent was validly obtained and whether it existed at the moment proceedings were instituted. This confirms that the decision to prosecute was made lawfully and with the proper authorisation required under statute. Finally, it is essential to determine the precise point at which the prosecution considers proceedings to have begun, since this dictates whether both the time limit and consent requirements were satisfied at the critical moment of institution. As R v Óg Ó hAnnaidh shows, for summary offences proceedings commence when a written charge and requisition are issued, not when a plea is entered or the defendant first appears before the court. Defence practitioners should therefore remain alert to the gap that can arise between statutory requirements and prosecutorial practice.

These strategies should not be misconstrued as attempts to circumvent the substantive merits of a case. Instead, they are means by which criminal practitioners ensure that prosecutions adhere to the constitutional boundaries established by Parliament. Importantly, they remind us that the state’s power to prosecute is not inherent, only arises within the statutory framework, and may not be exercised until the preconditions fixed by that framework are satisfied. Where those preconditions are missing, the state acts without lawful authority. Therefore, challenging proceedings on that basis should not be seen as undermining justice or evading accountability but as a necessary act to uphold the rule of law and maintain the integrity of the criminal process.

Private prosecutions and consent

The constitutional principles underpinning R v Óg Ó hAnnaidh are not confined to prosecutions brought by the state, but they also inform the law governing private prosecutions. The right of an individual or organisation to initiate criminal proceedings remains part of the common law, preserved by statute and recognised by the courts as an important constitutional safeguard. Yet because private prosecutions engage the same coercive powers as those exercised by the state, Parliament has placed them under public supervision to ensure that they operate in the public interest and remain subject to oversight.

Section 6(1) of the Prosecution of Offences Act 1985 preserves the right to bring a private prosecution, while section 6(2) of the 1985 Act empowers the DPP to take over and continue or discontinue such proceedings. Where legislation requires the consent of the DPP or the AG, that requirement applies equally to state and private prosecutions, reflecting the principle that prosecution, even when privately initiated, is ultimately a public function. This safeguard is particularly important in offences involving terrorism, official secrets, corruption, and elections, where the implications of prosecution extend beyond the interests of the parties and may affect national security, foreign relations, or the democratic process. This supervisory power acts as a constitutional safeguard against the misuse of criminal proceedings for purposes such as harassment, political retaliation, or commercial advantage.

As above, it is essential for criminal practitioners to determine at the outset whether the offence in question is subject to a consent requirement and whether that consent was obtained before the proceedings were instituted. If it was not, the prosecution is void and cannot be retrospectively validated. Following section 6(2) of the 1985 Act, if the evidential or public interest thresholds are not met, the proceedings are likely to be discontinued. Even where they are met, DPP scrutiny can change the course of a case by introducing considerations of proportionality and public policy that may not have been considered by the private prosecutor. At a constitutional level, these mechanisms confirm that all criminal prosecutions, whether public or private, represent an exercise of state power that must operate within clearly defined legal boundaries. They preserve the balance between individual rights and collective security by ensuring that prosecutions are authorised, justified and publicly accountable.

Conclusion

R v Óg Ó hAnnaidh illustrates that procedural rules are not peripheral technicalities but fundamental safeguards that define the lawful limits of state power. It demonstrates how procedural law translates principles of legality, accountability, and proportionality into practical controls on the exercise of prosecutorial authority. These frameworks extend equally to private prosecutions, ensuring that they operate subject to scrutiny and are exercised with restraint. Irrespective of the outcome of any appeal, the case is a reminder that the integrity of the criminal justice system depends not only on substantive law but on the procedural boundaries that give effect to the rule of law.

This article by Associate, Manvir Kaur Grewal was first published in the New Law Journal on 28th November 2025.