“The relation between time and criminal law: the statutory limitations”

Introduction.

At the juncture where substantive criminal law and criminal procedural law meet, the
notion of a statute of limitations may be found. It would be impossible to conduct an academic
examination of this legal instrument in the form of a comparison presentation if the researcher
lacked an understanding of the respective procedural law systems. In light of this, the purpose of
the current cross-section is to investigate the similarities and dissimilarities that exist across the
various statutes of limitations, taking into consideration both substantive law and procedural law,
and to determine the various regulatory models. This is accomplished by restricting attention to
fundamental aspects of criminal law and the criminal responsibility of natural people. This is
necessary due to the complexity described above. Because of this, the unique characteristics of
some subfields of criminal law and the administrative offences that are governed by the Criminal
Code of certain nations are not taken into consideration.

The phrase "statute of limitations on prosecution and enforcement" will be used in the
paragraphs that follow without any aim of making a statement about the fundamentally legal
nature of those phrases. The terms "statute of limitations on criminal liability" or "statute of
limitations on criminal offenses"2 would be more accurate in nations in which the statute of
limitations is acknowledged as a matter of substantive law. In these countries, the word "statute
of limitations" is not proper. On the other hand, jurisdictions in which the statute of limitations is
interpreted in a procedural manner cannot use this. The phrase "limitation period for
enforcement" is ultimately erroneous as well due to the fact that the act of enforcement itself is
not what is subject to the statute of limitations; rather, it is the potential of doing so. Therefore,
the phrase "limitation period for enforceability" would be more suitable to use.

The present paper will discuss statutory limitations of criminal law of the EU (European
Union) states and then move to the analysis of special case of England and Wales.

Legitimacy of limitation period.

In every state, problems arise because of the ideological basis of the statute of limitations.
When discussing the statute of limitations for prosecution, several alternative lines of reasoning
are typically presented as possible explanations. In addition to preventive concerns, references
are typically made to evidentiary challenges. As a consequence, hybrid theories of the statute of
limitations, which combine substantive and procedural grounds, have emerged as the most
popular explanations for its application. It is remarkable that nations in which the statute of
limitations is unquestionably allocated to substantive or procedural law do not even have basic
disparities in thinking with one another. Only with some reluctance have more recent technical
advancements made their way into policy arguments around statutes of limitations. These talks
have revolved around laws that place limitations on certain activities. These include the
improvements that have been achieved in forensic technology in recent years, particularly with
regard to the securing and assigning of evidence that extends back a very long period. DNA
testing is one example of these improvements. Individual nation reports bring attention to the
concomitant weakening of the persuasive power of arguments around the loss or deterioration of
evidence (The DNA Evidence Exception to the Statute of Limitations Should Be Construed
Sensibly | New Jersey Law Journal, 2021). However, if there is no other evidence available,
these methods do not make it possible to provide unmistakable proof of the identity of the
offender, and they do not alter the fundamental problem that the amount of exculpatory evidence
that is accessible decreases with the passage of time. It is common practise for a person to have
to depend on the testimony of witnesses in order to establish that he or she was not present at the
site of the crime at the time the crime was committed and that they did not commit the crime
(Zieger, 2022). The more time that has elapsed after the crime was committed, the more difficult
it is to identify witnesses who can exonerate the defendant and the more difficult it is for those
witnesses to remember the events that occurred within the relevant time period. Even potentially
exculpatory personal records, such as calendar entries, might have been misplaced during this
time period (Zieger, 2022). The risk of false convictions continues to exist notwithstanding the
fact that an accused person's evidential position is far less advantageous than it would be in the
case of an expedited criminal prosecution.

Non-limitable criminal offences

Overview.
 There are some offences that can never be prosecuted due to the passage of time, and this
is true across all legal systems. Non-limitability is the standard operating procedure in England
and Wales, however in most other nations, this is not the case. On the other hand, there is a
growing movement towards making the statute of limitations longer. For example, within the
past twenty years, the period of time before a crime may be prosecuted has been significantly
lengthened in the Netherlands (Ministerie van Algemene Zaken, 2016). In Sweden, the non-
limitability for major crimes that had been removed in 1975 was returned in 2010, and the
spectrum of offences that are not subject to a statute of limitations has been progressively
enlarged since then. In 1975, the non-limitability for significant crimes had been removed.

In terms of regulation, either all offences punishable by a certain penalty are declared

non-limitable, or the respective offences are listed individully. In some US states, all serious
crimes (felonies) are considered non- limitable.

In this are, there is significant constraint exercised by five countries. Only the most
serious offences that violate international law are not punishable by death in France and Greece.
In addition to Polish, German, and Spanish criminal law, non-limitability is only sometimes
utilised. Only highly terrible deliberate homicide, which is defined as murder, is free from the
statute of limitations in Germany, and only terrorism ending in death is exempt from the statute
of limits in Spain. In addition to offences under international law, these are the only two offences
that are exempt from the statute of limitations. In Poland, the statute of limitations does not apply
to certain deliberate crimes against life and limb or freedom perpetrated by a holder of public
office in connection with the execution of his official responsibilities. This is in addition to
crimes that fall under international law, which are not subject to the statute of limitations. The
legislation, which was a product of the political transformation that took place in Poland in the
1990s, is designed to prohibit the impunity of public officials in circumstances in which the acts
were committed with the authorization of state authorities.

In the other nations, the statute of limitations does not apply to a far larger variety of
offences than it does in the United States (Types of Criminal Offenses, 2023). In addition to
violations of international law, murder and manslaughter, and acts of terrorism, the (severe) rape
of a child or adolescent and the genital mutilation of a person under the age of 18 are now
considered to be non-limitable offences in Sweden. In several states and countries, the statute of
limitations does not apply to crimes that carry a sentence of life in prison. This appears to be
predicated on the premise that offences for which a person may in principle be punished for life
should likewise be prosecutable for life. This is an exhaustive description of the types of crimes
in Italy that are not covered by the statute of limitations. Infractions such as deliberate homicide
in the presence of specific aggravating circumstances, deprivation of liberty for the purpose of
extortion that results in death, and certain infractions intended against the Italian state are all
included in this category. In Estonia, for instance, crimes such as murder, serious violence
against the state, including offences related to terrorism, and certain narcotics offences are
among those that can result in a sentence of life imprisonment and are thus not subject to a
statute of limitations. Other crimes that can result in a sentence of life imprisonment include
trafficking in drugs and sexual assault. It is important to note that in Australia, the potential of
imposing life imprisonment is restricted in time in order to take into consideration the
diminishing necessity for punishment with the passage of time. This is something that should be
mentioned since it is important. If it has been twenty years after the beginning of the statute of
limitations, the only penalty that may be given instead of a life sentence is one that ranges from
ten to twenty years in prison.

Since the Criminal Code of the Netherlands was revised in 2005, offences that are
punishable by life imprisonment are not subject to the statute of limitations any more. from the
bottom bar for non-limitability was lowered to a sentence of 12 years' imprisonment in 2012, all
offences punishable by a sentence of this length of time in prison or a higher one have been
regarded non-limitable from that time (Ministerie van Algemene Zaken, 2016). This includes
homicide and manslaughter, as well as murdering under the direction of a terrorist outfit or
because of membership in one of such organisations. The new social and technical changes that
influenced the legality of the statute of limitations in 1983 provided sufficient justification for the
expansion of the limitation periods.

Time limitations for specific offences.

International law crimes.

 There is a widespread agreement that offences that violate international law are not
subject to any kind of time limit or statute of limitations. This can be explained by the fact that
all of the states reviewed in the previous section are parties to the Rome Statute, which says that
the crimes specified are not subject to a statute of limitations (The States Parties to the Rome
Statute | International Criminal Court, n.d.). The United States is not a party to the Rome Statute.
All four of the most serious offences that may be committed under international law—namely
genocide, crimes against humanity, war crimes, and the crime of aggression—are often included
among the non-limitable offences that fall under this category. The fact that the crime of
aggression does not yet belong to the category of crimes of international law that are not subject
to a statute of limitations in some countries is probably due to the fact that this amendment to the
Rome Statute has not (yet) been ratified or implemented in the countries that are in question (The
States Parties to the Rome Statute | International Criminal Court, n.d.).

In contrast to what was said above, the period of time during which a war crime can be
prosecuted in France is thirty years. Despite the fact that the lesser gravity of war crimes in
comparison to the other core crimes under international law could be used to justify this
differentiation, it is not compatible with Art. 29 of the Rome Statute, which states that no core
crimes under international law are ever subject to a statute of limitations (The States Parties to
the Rome Statute | International Criminal Court, n.d.). As a result, there is a possibility that
France, in its capacity as a State Party, may not be able to meet the requirements pertaining to the
conduct of prosecutions that it accepted when it acceded to the Rome Statute. This issue may
also come up for Italy since, according to Italian law, in order for a crime to be considered non-
limitable under international law, it must be penalised by a sentence of life in prison or longer.

De facto non-limitable.

Cases in which, for practical reasons, the statute of limitations either does not apply at all
or applies only after a very long length of time (de facto non-limitabili- ty) are only seen as an
issue in a few nations throughout the world. The lengthy statute of limitations for negligent acts
in Germany is a problem that is practically significant since the consequences of such offences
don't manifest themselves for decades after they've been committed. Because of the way that
they are worded and the presumption that the clock on the statute of limitations doesn't start
ticking until the offence has been resolved in a meaningful way, certain exceptional instances
may result in offences only becoming time-barred after a very extended length of time has
passed. Because the beginning of the statute of limitations is not considered to have begun until
the victim reaches the age of 30, it is possible that some crimes that are mostly sexual in
character will not be subject to the statute of limitations.96 This latter issue manifests itself as a
concern in Austria as well.97

In Greece, the statute of limitations for certain continuing offences does not begin to run
until a significant amount of time has passed, particularly in the field of money laundering. The
report on the country explains how the criminal liability of money laundering is being used as a
make-up for the fact that the statute of limitations on corruption charges has passed. It is also
possible to utilise the criminalization of offences of omission as a tool to postpone the beginning
of the statute of limitations for an extended period of time by using this tactic.

In Italy, the difficulty emerges when major crimes that already have lengthy statutes of
limitations are committed in the form of a "organisational crime" (Article 416-416ter, n.d.),
which effectively doubles the statute of limitations so that it is at least 30 years old . This makes
it far more difficult to bring serious criminals to justice. In the event that a procedural step is
made that results in the restarting of the statute of limits, a time bar that was previously
inaccessible as a result of the statute of limitations is effectively rendered inaccessible.

The beginning of the statute of limitations for "hidden" (disimu- lées) and "concealed" (occultes)
offences is not considered to have begun until the time when the offence was discovered under
French law. The legal evolution of this delay has been criticised as being de facto non-limitable
in academic debate. Since then, the rule has been made into a law by the legislature, and at the
same time, they have placed a restriction of 30 years for crimes and 12 years for misdemeanours
on the de facto non-limitability, counting backwards from the time of the commission of the
offence (Article 416-416ter, n.d.).It is possible for certain jurisdictions in the United jurisdictions
to permit the beginning of the statute of limitations for certain offences only after the offence has
been discovered,which may be viewed as being equivalent to de facto non-limitation.

Special case of England and Wales

 England and Wales is the special case compared to the states described above. There is
no statutory provisions that would clarify the time within which the prosecution has to be done.
If there are no special legislative provisions to the contrary, the overarching principle of English
common law is that there are no formal time-limiting limits of any kind on the beginning of a
prosecution. This is the case even if there are statutory rules to the contrary. This strategy is
based on the time-honored equitable concept known as nullum tempus occurrit regit, which
argues that because the Crown enjoys sovereign immunity, the passage of time cannot be used
against it in legal proceedings.

Magna Carta and the writ of Habeas Corpus do not afford any effective recourse against undue
delays in instituting a prosecution, and neither does the writ of habeas corpus.36 This historical
rejection of the limitation principle must be explained in part by the fact that, prior to the
development of public prosecution authorities in the 19th and 20th centuries, the prosecutor was
often a private individual, typically the victim or complainant (Ma, 2008). This was the case until
the establishment of public prosecution authorities in the 19th and 20th centuries.In addition, the
nature of the trial process in England was extremely quick in comparison to the drawn-out
approach that is performed in nations where the Civil Law is the predominant legal system.
Reliance on a single, decisive courtroom incident produced a powerful sense of synchronicity,
which starkly contrasted with the continental diachronicity or cumulative approach of decision-
making (Vogler, 2014). Synchronicity may be defined as the simultaneous occurrence of two or
more events that occur at the same time.

This overarching strategy does, however, include two significant departures from the
norm, each of which will be dissected in turn. The first pertains to situations in which a crime is
considered to be relatively small (or "summary") and a general time-limitations regulation is in
effect. And the second one is with regard to all offences, in particular circumstances where the
passage of time since the events that were alleged to have occurred makes it difficult to have a
fair trial. since of the conditions described above, the prosecution has to be halted since it
constitutes a "abuse of process."

Time Limitations on the Prosecution in England and Wales.

 In England and Wales, the most significant deviation from the nullum tempus concept
occurs in the context of very small charges known as "summary offences." These types of cases
are tried in a Magistrates' Court rather than in front of a judge and jury. These types of offences
account for the great majority of criminal cases and include traffic violations, violations of
licencing and regulating laws, and other offences of a lesser severity. In accordance with the
requirements of section 127(1) of the Magistrates' Courts Act of 1980, they are often subject to a
limitation period that lasts for a period of six months beginning on the date of the crime (King’s
Printer of Acts of Parliament, n.d.). This piece of legislation states that a magistrates' court may
not trial a summary offence unless the procedure to do so was commenced within six months of
the time when the offence was committed, unless an exception to this rule is specifically given
elsewhere in the statute. If the time restriction is exceeded, the proceedings will be blocked by
the statute of limitations, and the prosecution will not be able to continue. Regarding the time
constraints, there are two issues that immediately come to mind. The first pertains to the
computation of the moment at which the time limitation period begins to run, and the second
pertains to the moment at which it is ended and any prosecution becomes banned by legislation
(King’s Printer of Acts of Parliament, n.d.). Both of these moments are referred to as the
"starting point" of the time restriction period.

In regard to the first issue, it has been well established that the "discovery" of a crime by
the authorities is the point at which the clock starts ticking rather than the point at which the
offence was actually committed. The term "discovery" refers to the first time the offence was
reported or recognised, and it is not required that an investigation should be finished with all
possible lines of defence investigated, much less that a definite decision should have been made
to prosecute the individual. Therefore, in a case that took place in 2003 and involved a
supermarket that was found to have violated the Food Safety Act of 1990 by selling tainted food
to customers, the prosecution argued that the quality of the initial information was poor and that
the offence could not be considered to have been "discovered" until it was confirmed by a
reliable technical report and a formal statement from the complainant. This was the case for a
case that involved the sale of tainted food by the supermarket (Tesco Stores Ltd. V London
Borough of Harrow, (2003) 167 JP 657 | England and Wales High Court (Administrative Court),
Judgment, Law, casemine.com, n.d.).
 Therefore, prosecutors must comprehend that, for these purposes, the statute of
limitations begins to run as soon as the duty to investigate arises, and that the concept of
"discovery of an offence" should not be confounded with the conclusion of a thorough
investigation or the decision to prosecute. Therefore, "knowledge of the facts" was sufficient to
start the clock, and the beginning of the limitation period should not be delayed until written
confirmation of these facts was obtained (R v. Beaconsfield Justices, Ex Parte Westminster Press
Ltd, n.d.-b). In the case of computer crimes, where downloading and analysing digital evidence
within the allotted time can require a substantial amount of time, the problem is particularly
acute. However, it has been long-established that even when the statute states that the statute of
limitations begins only when "sufficient in the prosecutor's opinion to warrant proceedings" has
been gathered, these words are merely descriptive of the evidence and do not require the
prosecutor to form such an opinion before the statute of limitations begins to run (Participation,
n.d.). In addition, the period did not begin only when the information was received by the
prosecutor authorised to decide whether or not to bring charges. (R (Donnachie) v. Cardiff
Magistrates' Court [2007] EWHC 1846 (Admin) - Sections 1(1)(a) and 19(1) TDA., n.d.).

Since the date of "discovery of an offence" is likely to be an internal matter of the

prosecution agency, it may be difficult for a defendant to procure the information necessary to
file a challenge based on the statute of limitations. As the issuance of a summons is a judicial act,
a magistrate or justices' scribe must ensure that the prosecution is not precluded by statute before
proceeding. Since evidence is not presented at this stage, it is customary for the prosecution to
provide a "conclusive certificate" indicating the exact date on which the prosecution agency or
the police became aware of the facts upon which the prosecution is founded. Although
characterised as "conclusive" in the sense that the justices can rely on it to issue a summons if it
is not challenged, such a certificate is, in reality, nothing more than evidence regarding the date
of first knowledge of the alleged offence. Lord Justice Auld's decision in the 1996 case of
Amvrosiou (R v. Haringey Magistrates' Court, Ex Parte Amvrosiou [1996] EWHC 14 (Admin) –
CrimeLine, n.d.) compounded the situation. According to him, the purpose of issuing a
"conclusive certificate" was to provide certainty for both the prosecution and the defence and to
eliminate the need for the prosecution to disclose exhaustive details regarding their evidentiary
or decision-making procedures in a particular case.
 The fact that the Crown Prosecution Service does not have a monopoly on prosecution in
England and Wales compounds the inherent difficulties of allowing the prosecutor to self-certify
compliance with the limitation requirements via a "conclusive certificate." Cases of animal
cruelty, for instance, are prosecuted by animal welfare organisations such as the Royal Society
for the Protection of Animals (RSPCA), and individuals whose cases have been rejected by
public prosecution authorities as unfeasible can still initiate a private prosecution under certain
conditions. This raises the question of whether such private agencies, charities, or individuals
should be permitted to self-certify compliance with limitation requirements despite not being
public authorities (such as the Crown Prosecution Service) and therefore not subject to judicial
review by a higher court. According to the court in the 2009 case of RSPCA v. Johnson, the
answer appears to be in the affirmative, a situation that has been criticised by Howe (Chesterfield
Poultry Ltd V Sheffield Magistrates Court, [2019] EWHC 2953 (Admin) | England and Wales
High Court (Administrative Court), Judgement, Law, casemine.com, n.d.).

The second issue mentioned above, which relates to the precise time when proceedings
are initiated and the statute of limitations expires, poses fewer challenges. The initiation of
proceedings is a formal, procedural event that is much more readily identifiable than the
prosecution agency's initial knowledge of an alleged offence. There are two ways in which a
proceeding can be deemed initiated for the purposes of this rule, and either of them can indicate
the point in time at which the limitation requirement is met. These are "charging" and "laying
information", respectively. The first is when an authorised prosecutor issues a written accusation
to a defendant, accompanied by a summons to appear in court. The second step is "the laying of
an information" with the court, which gives formal notice that the named individual is suspected
of having committed an offence. When such an information is filed, the justices may issue a
summons requiring the named individual to appear before the court, or they may issue an arrest
warrant (Participation, n.d.-b).

Conclusion

After conducting an analysis of statutory limitations withing criminal law of European

states it can be notes that England and Wales are the exceptional cases, where there are no strict
statutory limitations of time for prosecution. These cases demonstrate very clearly that the law in
England and Wales concentrates almost exclusively on the availability of a fair trial after a
period of time has elapsed, the first of the aforementioned justifications. In stark contrast to the
majority of jurisdictions on continental Europe, efficiency, psychosocial, and penological
justifications are never considered. As was mentioned previously, the discretionary principles
entrenched in the English and Welsh criminal justice systems permit challenging cases of delay
involving serious offences to be addressed on an individual basis as opposed to a universal
statute bar. Such a strategy would be inconceivable in a more strictly regulated system of
decision-making.

Regarding European Union member states, it should be emphasised that in each country
with a fundamental or extensive exception to the statute of limitations, prosecutors have broad
discretion over whether or not to pursue charges. A renunciation of a fundamental duty to
prosecute in the case of (extensive) non-limitability should be required, if for no other reason
than limited prosecution capacities. Such a solution is not recommended from a comparative law
standpoint due to the fact that its implementation would necessitate a fundamental system change
in the majority of the examined nations, which would entail significant disadvantages.

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