Part 1: Restrictions on prosecution for certain offences Consent to prosecution Section 5: Requirement of consent to prosecute
This section sets out the requirement that if a prosecutor determines that, notwithstanding the presumption against prosecution (at section 2) and the requirement to give particular weight to specified matters (at section 3), it is appropriate to prosecute a current or former member of the Armed Forces in relation to an alleged offence committed on overseas operations more than five years ago, the consent of the Attorney General for England and Wales, or the Advocate General for Northern Ireland, must be obtained before a prosecution can proceed. The section does not extend to Scotland given that all criminal prosecution decisions in the public interest in Scotland are taken by, or on behalf of, the Lord Advocate. This is reflected in the Scotland Act 1998 which upholds the constitutional role of the Lord Advocate as the head of the systems of criminal prosecution and investigation of deaths in Scotland.