Like, I suspect, a number of my professional colleagues, I have grave concerns about the sudden emergence of historical sex crimes following the well-publicised Operation Yewtree, set up in the wake of the Jimmy Savile scandal.
Perhaps colleagues who practise in the area of criminal law will forgive these musings from a civil lawyer, but why should there be a difference between civil and criminal law when it comes to limitation? In the area I practise, clinical negligence, we have a real uphill struggle if we want to try and issue proceedings outside the three-year limitation period since ‘the date of knowledge’.
Of course, one could argue that sex crimes are very serious and ought to come to light no matter how long after the event. The same is true with injuries that occur as a result of medical accidents.
Another troubling feature is that the burden of proof is different. As a civil lawyer, I am only obliged to prove my case on behalf of a claimant on the ‘balance of probabilities’, but as a prosecutor I would be obliged to prove my case beyond reasonable doubt. Does that not make the passage of time an even more important consideration?
There is a raft of case law on applications under section 33 of the Limitation Act where claimants attempt to bring proceedings out of time, that is to say more than three years since the date of knowledge. In fields other than personal injury, for example, limitation periods are strictly applied and there is no right to ask the court to set aside the period of, say, six years for whatever reason.
Let us just look at what Jackson LJ (no less) said in deciding against the claimant in a case brought four years out of time, Sayers v Lord Chelwood (deceased) and Lady Chelwood. The claimant’s application to disapply section 11 of the Limitation Act by application of section 33 was refused by the Court of Appeal because:
- Four years’ delay made it more difficult for the parties to produce relevant evidence;
- This was a noise-induced hearing loss case; the specific equipment used by the claimant could no longer be identified and therefore the noise generated could no longer be tested;
- The evidence before the court after a four-year delay was going to be much less reliable, documents had been lost and a witness had died;
- The passage of time does nothing to assist the memory of witnesses. How often are we told in practice ‘I can’t really remember, it’s three years ago’, for example?
So far as I can see, every other EU country has a statute of limitations applying to criminal cases. The average is 12 years; the range seems to be between 10 years and 20 years. Can somebody tell me why the law should be so different in England and Wales?
Marcus Nickson, Berlad Graham, London W1