Prosecution Time Limits; what are they?
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 prosecution 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. However, 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.
Other cases
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. For example, 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’. They can be dealt with by directions to the jury to make proper allowance, and to only convict if sure.
Wherever possible we look to explore other appropriate avenues to redress the balance.
This may be by an application to exclude evidence, or an application to bring the case to a halt. This is 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. We will always advance arguments where there is a prospect of success.
In Attorney-General’s Reference (No 1 of 1990) [1992] 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 [2008] 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 [2007] 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.
How we can assist
Prosecution time limits are just one aspect of criminal cases. We understand the complexities of criminal law and fight hard on your behalf. To discuss any criminal law matter, from an interview under caution to court proceedings, please contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk for immediate assistance.
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Abuse of process in Extradition cases
Criminal lawyers will be familiar with the term ‘Abuse of process’. To those unfamiliar with it, it is a situation where there is something so wrong and so unfair with a case that it should not be allowed to go ahead. It is not found in any legislation, and it doesn’t appear in the Extradition Act. However, the Courts in this country have decided that it is something that can be used in extradition proceedings, although it is not something that is used very often.
Acting ‘in good faith’
When considering whether or not something amounts to an abuse of process, the Judge hearing the case starts with an assumption that whichever country is asking for extradition is acting ‘in good faith’. It can be very difficult to prove otherwise, even where there is an obvious mistake or evidence is clearly missing from the warrant.
Zakrzewski sets out the circumstances in which an abuse argument will be permitted
We recently dealt with a case where extradition was asked for in a case where the sentence imposed was said to be one of over 5 years. The warrant had details of the offence and the sentence that was passed, and everything seemed to be in order. However, it became clear that there were other offences involved that were not listed in the warrant, as they should be. The reason the sentence was as long as it was, was because the client had been recalled on licence for other more serious offences. The sentence for the offence in the warrant was actually only 6 months. The authorities in the requesting country confirmed that this was correct, but the District Judge decided that even though the warrant was clearly missing information, she had to assume it was correct. We argued that this was an abuse of process. Although the District Judge decided it was not, we were given permission to appeal in the High Court. Before the appeal could be heard, the warrant was withdrawn and a new warrant issued containing all of the information needed.
By the time the new warrant came to court, our client’s position had changed somewhat and there were fresh arguments to put forward. The case is still going on, well over two years after he was first arrested.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor
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