6th March 2019
Last week the Defence Secretary Gavin Williamson suggested a 10-year time limit ( a Statute of Limitations) on the prosecution of soldiers accused of murder during military engagement. This proposal was in response to reports that British soldiers may face prosecution over deaths during the Northern Ireland troubles in the 1970s and 80s.
So, what time limits if any currently apply in England and Wales?
We categorise offences into three groups:
(1) Summary only offences – offences that can only be tried in the magistrates’ court.
(2) Indictable offences (or either-way offences) – offences that may be tried either in the magistrates’ court or the crown court.
(2) Indictable only offences – offences that may only be tried in the crown court.
Summary Only Offences
In general, proceedings must be commenced within six months of the criminal act that is being complained of.
There are however lots of exceptions to this, in particular, affecting welfare benefits, regulatory crime, animal cruelty and immigration cases. These exceptions allow proceedings to be commenced much later (sometimes as much as three years) if certain conditions are met.
There is a great deal of case law concerning the calculation of time limits, and it is common to see offences commenced in breach of the rules. When spotted, this will bring the prosecution to a halt.
With the new Single Justice Procedure for road traffic, railways and other offences, we are seeing an alarming number of cases being charged in breach of statutory time limits – if in doubt, please check with us.
In relation to indictable and indictable only cases, the starting point is that there is no time limit.
It is very common to see offences, particularly sexual offences, prosecuted a great many years after the events complained of.
Historical (alleged) sexual and other offences can create significant difficulties for defendants so many years after the alleged events as it can make defences such as alibi all the more difficult to establish.
As time passes so too does witness memory and recollection, false accounts can seem correct ones, and important evidence can disappear.
The response of the Court of Appeal to these defence complaints is that they are a ‘matter for the jury’ and can be dealt with by directions to the jury to make proper allowance, and of course, only convict if sure.
Wherever possible we look to explore other appropriate avenues to redress the balance.
This may take the form of an application to exclude evidence, or an application to bring the case to a halt (referred to as ‘staying proceedings’) as to continue would amount to an ‘abuse of process’.
Is an abuse of process argument easy to win?
No, an abuse of process argument is notoriously difficult to win. This leads many to believe that they are therefore mostly pointless and, in those circumstances, don’t bother at all.
This is not a strategy that we believe in, and we will always advance arguments where there is a prospect of success.
In Attorney-General’s Reference (No 1 of 1990)  QB 630 the court held:
“Firstly, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of the process of the Court and should, therefore, be stayed.
Secondly, stays of proceedings in such circumstances should be the exception rather than the rule, and where the application for a stay is based on delay a stay should be an exception rather than the rule even if the stay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. No stay should be imposed unless the defendant shows, on the balance of probabilities, that because of the delay he will suffer serious prejudice to the extent that no fair trial can be held.
The third proposition of law that seems to me to arise from the authorities is that the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about the delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence.
The fourth relevant proposition of law, as it seems to me, is that the judge may also take into account the extent to which a prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment will be stayed.
Fifthly, where delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints about sexual abuse.”
A seemingly more liberal approach was taken in R (Flaherty) v City of Westminster Magistrates’ Court  EWHC 2589 (Admin) where a delay of 2 years (inactivity of the prosecution) during enforcement proceedings was held to amount to an abuse of process, and in Ali v CPS  EWCA Crim 691 where a delay of 7 years was sufficient to support a stay for abuse where documentary evidence pertinent to the complainant’s credibility had been lost.
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