Chapter 10 The Statute

## Hester I have no case, I have said this, and I am going to say it again in a book because I want it in a form that cannot be edited. There is no case. There is no claim. There is no proceeding. There is no person alive who can be prosecuted and no court in this country or in any other that would hear a complaint about what happened in Carbide Creek between the twelfth and the sixteenth of January 1998. Let me set out the position properly, because nobody who is not a defence solicitor has ever had it set out properly, and because the reason the position is what it is, and the reason it is not going to change, is not the passage of time. It is the shape of the law. Offences against the person in 1998 in England had, as a general rule, a limitation period of six years. That was the position under section 11 of the Magistrates' Courts Act 1980. Murder and manslaughter had no limitation period at all, and that is the only reason there is any argument to be had here at all, and the argument only runs if somebody proves a death was caused by another, and I have no such evidence and I do not think there is any in existence. The law changed. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 suspended the limitation period for certain serious sexual offences retrospectively, and it did not do that for homicide, because the mischief was thought to be that a living defendant could be convicted of an old offence on the evidence of a complainant who was in a position of dependence, and homicide does not work that way. Therefore, if the death of Nerissa Aldercott was caused by a person, the person is not answerable for it now. I said that to a man from a newspaper in a corridor in a court in Derby in November and he said, "So you're saying the tape is worthless." And I said, "No. I am saying the tape is worth a great deal, and it is worth it as a document and it is worth it as evidence of a state of mind, and it is worth it in a civil proceeding which nobody will bring, and it is worth it to a jury, and it is worth it to a family, and it is worth nothing at all in this court, in front of this judge, on this application, under this order." Here is what is legally available, and I am going to be exhaustive because I would like this printed in full. One: a coroner's inquest. The death was registered in 1998 as an open verdict, or possibly as a misadventure, or possibly as something else, and I have not seen the certificate and I have asked for it and it has not come, and I am going to assume for the sake of this that the inquest is closed and was dealt with in a coroner's court in 1998 with a family representative present. An inquest is not available. It can only be reopened in limited circumstances, principally where a relevant document or evidence has come to light since. That door exists. It is a real door. And I want to be precise about the state of it: the test is whether something has come to light since the conclusion, and not whether anybody thought about it at the time. The tape has been in a locker since 1998. It is not something that has come to light. The police knew about it in January 1998. I am not aware of any rule, and I have looked, and I have asked a silk in chambers who deals with judicial review, and he has said in terms that the argument that a tape known to the coroner at the date of the inquest can now be used to reopen is not one he would put forward with any confidence, and he is a man who puts forward arguments with a great deal of confidence. Two: an application for judicial review. This is what a family would do if they believed a public authority had failed in a way that caused harm. It is available, and the time limit is three months, and it can be extended. And it is hopeless, because judicial review does not award damages, it does not determine criminal questions, and the only remedy would be a declaration, and nobody needs a declaration. The county knows what it did. Three: an action in negligence against the police. Time limited, and out of time by a very long way, and in any event the standard of care in 1998 for a search on the north bank in the dark in January is a standard nobody would be expected to meet, and I would not take the case, and I have told the family so. Four: criminal. No. So there is nothing. I have been telling a family what I have just set out, in a kitchen, in April, and then I have sat in a car afterwards and looked at a thing for some time. And I want to say something about it, and it is a professional thing, and I am aware that it is not what anybody wants to hear. The limitation period in this jurisdiction has been extended so far in the last thirty years that a great many offences have become unprosecutable while the person who suffered them is still alive. That is not an abuse by anybody. It is the product of a series of well-intentioned reforms about exactly the offences that turn on the evidence of a witness with a relationship of dependence, and it was not aimed at homicide, and it had a very good reason, and the reason is a good reason. And the consequence is that the passage of time itself is now, in a very large number of cases, the only sentence anybody receives. I do not have a remedy for that. I have read the appellate cases. Nobody in this country has ever successfully argued that the limitation period in a case like this was unconstitutional and I have never thought anybody would. What I have done is this. I have advised the family to do three things, in this order. Let there be a document. I have told Marlie Aldercott, in a kitchen in Aldergate in April, that the correct response to a fact that the law will not look at is to make it lookable. So the tape is to be transcribed, and the transcript is to be published, and the nine pages are to be published, and the correspondence is to be published, and the two hundred and eleven man-hours and the eleven volunteers and the dogs team that was granted on the nineteenth and declined on the twenty-second are to be published, and the name of the man who declined it is to be published, if he is alive and if it can be established that he declined it. Second: get it in front of a coroner anyway, in writing, formally, and be refused in writing, because a refusal in writing is a document, and I have a client in a household in Derby who will not stop until she has a refusal in writing from a coroner, and she is right, and she has got one, and it is a refusal that is, in my opinion, unimpeachable and that any reasonable person would agree with, and it is dated the nineteenth of March 2026. Third — and this is the one I would like people to take notice of, and it is the one that sounds like nothing. I have told her to write to the man who holds the tape. The item is not hers. It is the property of a police force. It has been in a locker for twenty-eight years, booked as property and never played, and under the police's own regulations an item booked as property is reviewed. Reviews happen. They are routine. They are not glamorous and they do not appear in any newspaper and they produce a very large number of pieces of paper saying no. And when it comes to the review, which will happen at some point in the next five years because that is how these things work, the person who is handed the file will be a custody officer, probably a sergeant, probably somebody who has never heard of Carbide Creek. And the single most useful thing anybody in this story can do is to make sure that officer's post is on the desk of every person in the house. I said that to Tobias Lind in a car park in Derby in the last week of April, and he wrote it down, and he looked at it for some time, and then he said, "That's not journalism." "No," I said. "It's the whole of the law, and it is all of it that is available, and I have been doing this for twenty-two years and I would drive thirty miles to tell one family one sentence that one of them needed to hear, and that sentence is that the review is going to come, and the file is going to be thin, and thin files do not get reopened."