The right to protection from retroactive criminal law


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The essentiality of a right to protection from retroactive criminal law has generally been accepted without argument. Literature on the justification for the principle is scarce. Yet, it has become well accepted that individuals have such a right. The principle has been enunciated in various declarations of human rights from 1789 until the present. Nevertheless, there are several examples in international, Australian and British law where the principle has been ignored or (at the very least) circumvented.

Three examples of retrospective law-making are discussed below: the Nuremberg trials of the late 1940s; the decision of the House of Lords in Shaw v. Director of Public Prosecutions in 1961; and the Commonwealth's "bottom of the harbour" tax legislation of 1982. In each case, the actions of the defendants were considered so morally repugnant that the principle of non-retroactivity was relaxed so as to allow them to be punished. These examples differ in the extent to which the retrospective aspect of each has been accepted: the Nazis tried at Nuremberg are generally said to have been adjudged fairly; the decision in Shaw's case has been criticised widely; and the "bottom of the harbour" tax legislation has attracted both critics and champions.

The fundamental question raised by these three examples is this: is the right to protection from retroactive criminal law an absolute human right, or should its application be qualified by reference to the circumstances in each case? Despite the criticism that these examples provoked, none of them could easily be characterised as a miscarriage of justice. But, in each instance, the defendants were punished for committing acts which were not criminal at the time that they committed those acts: they were found guilty retrospectively. Clearly, then, the right to protection from retroactive criminal law is not an absolute human right.

But if it is a qualified human right, what are the conditions that must be fulfilled before that right will be restricted? It is not enough to say that the defendants in the three examples discussed below behaved immorally. Even if immorality is a necessary condition, it is clearly not sufficient to qualify the right to protection from retroactive criminal law. There are numberless examples of immoral acts that are not illegal. And there is no common factor to be found in the extent of the immorality in each of the three examples. The Nazis committed acts of such wickedness that they beggar comparison with Shaw's actions, and make a peccadillo of tax evasion. There is no common condition that links these three examples.

Further, there is the example of judge-made law. There is an oft-cited legal fiction that judges do not make law but merely interpret pre-existing law. In fact, judge-made law is an integral part of the common law system. Yet, the making of law by judges is at odds with the principle of non-retroactivity; a person who is found guilty under a newly-enunciated, judge-made law is (necessarily) found guilty retrospectively.

Examples of judge-made law are legion. When this is taken into account, it can be seen that the right to protection from retroactive criminal law is regularly qualified, to such an extent, and in such an indeterminate fashion, that its status as a human right—even as a qualified human right—is dubious.

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Last modified:  31 August 1989