Should there be a 'Statute of Limitations' for criminal offences?

Recent headlines accusing former politicians of historical sex abuse has once again reignited the long-running debate on whether the UK should have a 'Statute of Limitations' for certain criminal offences.

With the exception of summary offences, there are no statutory limits on the prosecution of crimes in the UK. Instead, the legal maxim, 'nullum tempus occurrit regi' (time does not run against the Crown) applies and charges can be brought after any period. Other jurisdictions have varying rules on criminal limitation periods.

In Europe, under the civil law system, almost all prosecutions must be commenced within a certain period, known as 'prescription'.

It is a paradox that article 6 of the European Convention on Human Rights (ECHR) states that a trial takes place within a reasonable time 'rendering justice without delays which might jeopardise its effectiveness and credibility', but has not determined any limitation for prosecution. There is no uniformity across signatory countries.

In the United States, limitation periods apply on a state by state basis but, typically they are up to five years of committing the offence for less serious crimes and extended for more significant crimes and no limitation for the most serious of offences.

Meanwhile, Australia, like the UK, has no statutory limitations. New Zealand, however, has opted to impose ten year restrictions for offences which would attract a fine of less than $2,000 or a prison sentence of less than three years.

Competing interests

Actions in the civil courts are subject to limitation periods and this was reaffirmed again when in the House of Lords in 2006, Lord Nicholls of Birkenhead stated: 'Statutes of Limitations seek to hold a balance between two competing interests: the interests of claimants in having maximum opportunity to pursue their legal claims, and the interests of defendants in not having to defend stale proceedings.'

This principle goes back to 1623, yet no such balance exists in criminal matters. Why is it that in the civil courts limitations are set when the standard of proof is a mere 'balance of probabilities' when to prove a matter in the criminal courts 'beyond reasonable doubt', it is not? It is difficult to reconcile that if the law recognises that evidence can become 'stale' over a period of time with a lower standard of proof then, it is a compelling argument that the same principles are equally, if not more, applicable when the burden of proof is set far higher?

Reconstructive memory

Accurate witness recall is essential when determining evidence where DNA samples are absent. Does the passage of time render this almost impossible? If the answer to this question is 'yes', then that introduces reasonable doubt, and surely a jury must acquit? But should it have been allowed to get to trial in the first place?

There are a number of studies that demonstrate witness recall and reliability deteriorates with time. Reconstructive memory is one, which is the theory that memories can be distorted by the prior knowledge or expectations of the individual surrounding an event.

Instead of merely recalling actual facts, memory draws upon knowledge and understanding that we already have in our minds of previous similar events. These are known as 'schemas'. The influence of a schema in eyewitness testimony may appear as the witness creates a 'memory' of what happened and not what actually did.

Other studies have shown that third parties can introduce false facts into their memories. This influence increases with time. If there is robust research showing that testimony degrades over time then that must create reasonable doubt?

Interests of justice

There lies the quandary. On the one hand you may have victims who have kept quiet over the years for fear of coming forward and, on the other, you have the likelihood that the ensuing witness statements on both sides, are tainted by time. Remember, 'beyond all reasonable doubt' means just that.

There is a compelling argument, therefore, that the UK should set time limits for prosecuting criminal acts where evidence is based purely on victim or witness recall. This would also apply for all sex offences where DNA evidence is not available.

Nobody wants to see the guilty walk free and no government wants to be seen to be 'soft' on crime. However, the balance that has historically existed between claimant and defendant in the civil courts has served the interests of justice well. If evidence becomes stale after three years in a personal injury claim, and six years in contractual disputes, why do similar limits not apply in criminal cases where the standard of proof is far higher?

While some may find this conclusion unpalatable, lest we forget that justice is all about fairness and objectivity for all parties. It is difficult to apply this to a situation where a defendant may be asked to defend their liberty 50 years after an event based purely on witness accounts. SJ

Adrian Mason has spent 15 years in legal education specialising in civil litigation