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You can never be absolutely sure whether it is alive or dead (or perhaps alive from a different date than you had anticipated) until a judge opens the box for you.Accordingly, the best advice in relation to backdating documents will always remain: don’t do it.However in practice, for both good reasons and bad, backdating of documents does occur.
But even if there is no crime committed (for example, if the backdating was accidental so that there was no (“not my deed”) or the rule in Pigot’s Case such that in the eyes of the courts, the document is treated as though it does not exist.
But even if a person is not charged with a crime, the fact that a crime can be demonstrated to have occurred may still impact the rights of the parties.
Parties seeking to enforce rights can find those rights barred by ancient common law doctrines like (“from a dishonourable cause an action does not arise”).
Probably the most difficult of the grey areas occurs where parties have a recurring commercial relationship which starts informally, but they later decide to document it and agree terms.
In such cases, where the parties are not legally advised, it is absolutely not uncommon for the parties to sign the agreement and then backdate it to the start of the commercial relationship believing that this will “catch” all the prior aspects of their relationship.
My father (who was also a lawyer) used to love telling a story about how he was able to triumphantly prove to the court that a yacht charter was backdated by showing the stamps which had been used to pay the nominal 15¢ stamp duty were in fact first issued by the post office some four months after the date stated on the face of the document.