The right to protection from retroactive criminal law

The history of the principle of non-retroactivity

Introduction

Contents

Arguments in favour

The principle that people should be free from retroactive law has its roots in another principle: that there is no crime or punishment except in accordance with law.

According to Glanville Williams,¹ this principle was first importantly formulated in Article 8 of the French Declaration of the Rights of Man of 1789, which reappeared in the French Constitution of 1791, and remains in the French Code Pénal. It became part of the Bavarian Code in 1813, when Feuerbach formulated the Latin maxim nullum crimen sine lege, nulla poena sine lege. It headed the German Penal Code of 1871 and was guaranteed by the Weimar Constitution. It is clear that the principle had wide acceptance in Europe by the end of the nineteenth century.

From the nullum crimen maxim, jurists have deduced the principle of prohibition of retrospective penal laws. As early as 1651, Hobbes wrote:

No law, made after a fact done, can make it a crime ... For before the law, there is no transgression of the law.²

... shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilized nations.

Article 15 of the International Covenant on Civil and Political Rights states, inter alia:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.

In 1985, the unsuccessful Australian Bill of Rights Bill included a proposed Article 28 which provided, inter alia:

No person shall be convicted of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it occurred.

Introduction

Contents

Arguments in favour