Prosecution time limits and abuse of process

Prior to his sacking, the former Defence Secretary Gavin Williamson suggested a 10-year time limit or 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 1980s.

So, what prosecution time limits currently apply in England and Wales?

Offences can be categorised into three groups:

Summary only offences – offences that can only be tried in the magistrates’ court.
Indictable offences (or either-way offences) – offences that may be tried either in the magistrates’ court or the crown court.
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 many exceptions to this rule. These exceptions in particular will apply to the following types of offence:

welfare benefits
regulatory crime
animal cruelty
immigration cases

They allow proceedings to be commenced much later, and in some cases as long as three years after the offence was committed, where 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 these breaches are identified this will bring the prosecution to a halt.

With the new Single Justice Procedure for road traffic, railway and other offences we can see an alarming number of cases being charged in breach of statutory time limits.

If you have any doubts then please check with us immediately.

All other cases

In relation to indictable and indictable only cases the starting point is that there is no time limit in bringing the prosecution.

It is very common to see offences, particularly sexual offences, prosecuted a great many years after the events complained of.

Alleged historical sexual and other offences can create significant difficulties for defendants so many years after the alleged events. It can, for example, make defences such as alibi all the more difficult to establish.

As time passes witness memory and recollection will fade. False accounts can seem true. Mistakes in memory will be made. Important evidence can disappear.

The response of the Court of Appeal to these defence complaints is that they are a ‘matter for the jury’. The trial judge can deal with them by directions to the jury as to the problems created. A jury should only convict if it is sure.

What can the defence do?

Wherever possible we will look to explore other appropriate avenues at trial to redress the balance.

This may take the form of an application to exclude evidence. Alternatively, in some cases, an application can be made to bring the case to a halt. This is called ‘staying proceedings’. To continue to allow the prosecution would amount to an ‘abuse of process’.

Is an abuse of process argument easy to win?

Unfortunately an abuse of process argument is notoriously difficult to win. This leads many to believe that they are therefore mostly pointless. As a result, many won’t bother to make them 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) [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] where a delay of 2 years due to the inactivity of the prosecution during enforcement proceedings was held to amount to an abuse of process.

Separately in Ali v CPS [2007] 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.

Instruct a specialist in criminal law

We can begin to advise you as to the potential effect of delay in your case as early as in your interview with the police. We cannot stress enough that our legal advice and representation is always free to you if you are interviewed. This remains true whether you are under arrest or being interviewed voluntarily.

You can read about a case stopped for an abuse of process for a different reason here.

Our specialist criminal lawyers can advise you on whether you have a defence, and help you put that defence forward, which may be particularly difficult where a number of years have passed. We will advise you on the prospects of success and instructing any experts that may help along the way.

As a result, if you are arrested or know that the police wish to speak to you about a criminal offence then make sure you insist on your right to free and independent legal advice.