Computing Time and Date - When the Courts Can’t Count
Knowing how to calculate when a statutory time limit expires can be crucial yet, even when the courts purport to apply the correct rule, Victor Smith has found they do not always get it right. First published in the Criminal Law & Justice Weekly (2015) 179 JPN 796.
Computation of prosecution time limits
In Marren v. Dawson Bentley and Co Ltd [1961] 2 QB 135, [1961] 2 All ER 270, the Plaintiff was injured at work on November 8, 1954. On November 8, 1957 he issued a writ against his employers for damages alleging his injuries were caused by their negligence. The employers argued that the claim was out of time by virtue of s.2(1) Limitation Act 1939 which required that proceedings be brought within three years. Havers J held that the claim was in time as the day of the accident was to be excluded from the computation of the period within which the action should be brought. Although the Marren case was a civil one, it followed the criminal case of Radcliffe v. Bartholomew [1892] 1 QB 161, which determined that the day of offending was to be excluded in computing time. Havers J in Marren concluded that the same principle applied to both civil and criminal time limits. Havers J was supported in his view by Volume 32 Halsbury's Laws of England (2nd Edn) which stated that: "The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him. This rule is especially reasonable in the case in which that person is not necessarily cognisant of the act or event; and further in support of it there is the consideration that, in case the period allowed was one day only, the consequence of including that day would be to reduce to a few hours or minutes the time within which the person affected should take action. In view of these considerations the general rule is that, as well in cases where the limitation of time is imposed by the act of a party as in those where it is imposed by statute, the day from which the time begins to run is excluded; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation."
By virtue of s.127 Magistrates' Courts Act 1980 ("MCA"), the time limit for laying an information in the case of the commission of a summary offence is generally within six months from the time when the offence was committed. The effect of excluding the day of offending is that the six month period elapses on the corresponding day of the sixth month following the commission of the offence. As paragraph 2.137 of Stone's Justices' Manual 2015 puts it:
"When the time within which a person is required to act is fixed by reference to a period of months or calendar months from a particular date, the specified period elapses on the corresponding day of the month of expiry, and no account should be taken of the fact that some months are longer or shorter than others; thus a three month notice given on 30th April will expire on 30th July; but if the relevant calendar month in which a period expires is too short to provide a corresponding date, the period expires on the last day of that month: thus a three month notice given on 31st January will expire on 30th April."
Don't count on the sheep in the forest case
Verderers of The New Forest v. Young and Ors [2004] EWHC 2954 (Admin), was an extraordinary case in which a Deputy District Judge ("DDJ") got her calculation right but, after looking at the relevant case law, got it wrong. Her attempt to put right what she thought was her initial error, resulted in the Divisional Court, also purporting to apply the correct judicial authority, inadvertently endorsing the real error.
The defendants in Young were commoners who used the New Forest to pasture their animals. They were prosecuted for breach of byelaws, made under the New Forest Act 1877, for allowing their horses, cattle or sheep to be depastured without making appropriate payment to the Verderers. Some of the informations were laid on October 31, 2002 and alleged that the offending occurred "On or before" April 30, 2002. The DDJ ruled that these informations were one day out of time, calculating that the last valid day was October 30, 2002, and that the court did not have jurisdiction to try them. Subsequently the DDJ, having become aware of Marren, ante, reconvened the court and explained that she now thought she had miscalculated the six month time limit and that the informations had been laid in time. She accepted that she could not use s.142(1) MCA to rectify the "mistake" as it only applied when the court was "dealing with an offender". However, she considered that her original determination could, at common law, be construed as a nullity and be set aside allowing her to hear the informations.
The matter came before the Divisional Court by way of an appeal by case stated. Collins J, with whom Stanley Burnton J agreed, said: "[Counsel] for the [defendants] before the [DDJ], did not submit that the informations which had been laid on 31st October were out of time. He, it would seem, appreciated that time did not begin to run until the day after the date of the alleged offence. That that is indeed the case is clear from a decision of this court in Marren [ante]. … [The DDJ poses the question] were the informations … laid before the court on 31st October 2002 out of time pursuant to s.127 [MCA]? The answer to that is clearly no, they were not. Indeed, she has answered her own question by referring to Marren … No argument to the contrary has been put before us." With the greatest respect to their Lordships, as can be seen from the methodology for calculating time given in Stone, ante, although they got the legal principle right, their application of it was wrong. The High Court went on to hold that the DDJ did not have the power at common law to correct what they saw as her error because, distinguishing R (Steward) v. Director of Public Prosecutions [2003] EWHC 2251, she did not correct that mistake immediately but only after her decision had been "reached and announced and for the moment accepted."
The High Court observed that the informations alleged the offending "on or before" April 30, and yet there was no evidence of unlawful depasturing prior to that day. Those matters were sent back to the Magistrates' Court to be heard upon the prosecution's undertaking to apply to amend the informations. If that came about, the informations would then have alleged the offending specifically on April 30, but it could not alter the fact that they had been laid, one day out of time, on October 31. Although Young appears to be flawed in terms of its application of the law, it does at least have some value in showing that the legal principle, which it purported to apply and which had been correctly applied in Marren, was applicable to the calculation of time under s.127(1) MCA. Young is also useful for its salutary lesson that it is always prudent for a lawyer, in whatever capacity they are involved, to make their own assessment and not to assume that someone else must have got it right, especially perhaps when that someone professes to have previously been in error.
Continued in Part 2.