Court of Appeal quashes immediate custodial sentence after sentencing judge had suggested it might be suspended if defendant pleaded guilty
August 25, 2026
The Administrative Court’s judgment in DPP v Ó hAnnaidh [2026] EWHC 540 (Admin) offers a striking illustration of how procedural safeguards can determine the fate of a case before any evidence is examined. Although the allegation itself attracted public attention, the court emphasised that its decision turned entirely on a narrow point of law, not on the defendant’s conduct.
At issue was an allegation that, on 21 November 2024, Liam Ó hAnnaidh (aka Mo Chara), a well-known Irish rapper and member of the group Kneecap, displayed a flag at the O2 Forum in Kentish Town “in such a way or in such circumstances as to arouse reasonable suspicion that he is a supporter of a proscribed organisation, namely Hizballah”. This conduct, if proved, would fall within section of 13 Terrorism Act 2000.
In the event, the court never considered the alleged criminality. Instead, the prosecution faltered due to a procedural mistake.
The law
Section 13 makes it a criminal offence for someone to either wear an item of clothing or wear, carry or display 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. Someone guilty of this offence can be imprisoned for up to six months and/or receive an unlimited fine.
Under section 117 of the Act, certain terrorism offences (including section 13) may not be instituted without the consent of the Director of Public Prosecutions (DPP). Where the alleged conduct is “connected to the affairs of another country”, the DPP may only give that consent with the permission of the Attorney General. In this case therefore, the DPP’s consent was required to prosecute Liam Ó hAnnaidh, but only after the Attorney General had given permission.
The purpose of this safeguard is clear: to ensure that prosecutions with an international dimension receive appropriate constitutional oversight. As the court observed, the requirement 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”.
There are also other criminal offences that can only be prosecuted with the consent of the DPP, such as offences relating to jury conduct.
At the same time, summary-only offences (i.e. offences that can only be tried in the magistrates’ court), such as the one charged here, are subject to a strict six‑month limitation period from the date of the alleged offence under section of the 127 Magistrates’ Court Act 1980. Section 127(1) specifically says:
“…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.”
Proceedings must be instituted within that period, or the court lacks jurisdiction and the case cannot be tried.
Section 30(5)(a) of the Criminal Justice Act 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, a Magistrates’ Court may not try proceedings initiated by written charge unless the written charge was issued within six months from when the offence was alleged to have been committed.
Section 15(2)(ba) of the Prosecution of Offences Act 1985 says that proceedings are instituted when the written charge and requisition are issued.
The chronology
The procedural chronology was not in dispute:
- 21 November 2024: alleged offence took place.
- 20 May 2025: The Crown Prosecution Service authorised a charge with the DPP’s consent, but without the Attorney General’s permission.
- 21 May 2025: The police issued a written charge and requisition.
- 22 May 2025: The Attorney General granted the required permission, and the DPP gave valid consent. A second written charge was then issued that day.
The difficulty was that 21 May 2025 was the final day of the six‑month limitation period. The Attorney General’s permission arrived one day too late.
The prosecution argued that as the written charge was issued on 21 May, proceedings had been “instituted” for the purposes of the six-month time limit, but had not been “instituted” for the purposes of the charge until after the Attorney General granted permission, i.e. on 22 May. As such, they argued that the proceedings had been properly instituted and could proceed.
The Magistrates’ Court held that proceedings are instituted when the written charge is issued. Accordingly, the first written charge was a nullity because proceedings were instituted before the necessary Attorney General permission had been obtained. The Attorney General’s permission was only given authorising a charge on 22 May, after the six-month time limit. As such, it ruled that the Court had no jurisdiction to try the charge.
The prosecution appealed the Magistrates’ Court decision to the Administrative Court (a specialist court within the High Court) by way of “case stated”, claiming that the decision was wrong in law or exceeded the court’s jurisdiction.
The Administrative Court’s decision
The Administrative Court held that the statutory scheme leaves no room for ambiguity. Under section 29(1) of the Criminal Justice Act 2003, a prosecutor “may institute criminal proceedings against a person by issuing a document (a ‘written charge’)”. The act of issuing the written charge is therefore the moment of institution. Further, the Terrorism Act 2000 does not contain any other definition of what the “institution” of proceedings under it may involve.
As such, the Court concluded that the proceedings were instituted when the first written charge was issued on 21 May 2025. Because the DPP did not yet have the Attorney General’s permission at that moment, the proceedings were therefore a nullity. As the Court put it:
“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.”
Once the six‑month period expired, no valid proceedings could be instituted and the prosecution could not be revived.
The Court acknowledged the gravity of the allegation and the public interest in prosecuting terrorism offences. Nevertheless, it stressed that the statutory safeguards are integral to the rule of law. The failure to obtain the Attorney General’s permission before issuing the written charge was not a mere technicality; it went to the heart of the statutory scheme.
As a result, the case simply could not proceed and the appeal was dismissed.
Conclusion
This decision has broader implications for the administration of criminal justice:
- Written charges take effect immediately: proceedings are instituted the moment the charge is issued, not when it is served or when the defendant appears in court.
- Consent requirements must be satisfied in advance: where Attorney General permission is required, it must be obtained before proceedings are instituted.
- Time limits for charging summary-only offences are strict and unforgiving: even a one‑day delay can extinguish the possibility of prosecution.
- Procedural safeguards are a requirement, not optional: the court reaffirmed that statutory protections, particularly in terrorism cases, must be applied rigorously, even if that ultimately meant the defendant could not be tried for the offences for which he was charged.
It is therefore always worth checking whether any consent was required if facing criminal charge(s). If so, that consent must have been provided prior to proceedings being instituted, so prior to being charged. Failure to have obtained the valid consent prior to charge could result in the proceedings being void. However, in respect of more serious cases (i.e. those that can be tried in the Crown Court), there is no time limit within which someone has to be charged and so theoretically, the mistake is capable of being rectified for those such offences.
Vicky Lankester
Associate (solicitor)Legal Disclaimer
Articles are intended as an introduction to the topic and do not constitute legal advice
