The right to protection from retroactive criminal law

The arguments in favour of the principle of non-retroactivity

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There has been little discussion of the basis for the principle of protection from retroactive criminal law. Proponents of the principle's validity tend to accept it as axiomatic. In the leading Australian case on retroactive legislation, Yrttiaho v. Public Curator (Queensland),3 the High Court discussed, at some length, the existence of a presumption against the retrospective operation of a statute. However, at no stage did the Court justify this presumption. The High Court drew a distinction between statutes that divest vested rights and statutes that are merely procedural. In the absence of clear words to the contrary, examples of the former type are to be construed as prospective, but merely procedural statutes are construed as being retrospective "... provided, of course, that no injustice is done".4 This proviso would seem to imply that the presumption against retrospectivity exists (in cases where the statute divests vested rights) to ensure that "justice is done".

Some supporters of the principle claim that prohibiting retrospective law-making contributes to the stability and certainty of the justice system. In the words of Friedrich Carl von Savigny:

... an immoveable [sic] confidence in the authority of the existing laws is extremely important and desirable. I do not mean confidence in their permanent endurance ... But I mean the confidence that their authority and efficacy will be unassailable as long as they subsist.5

Another argument against retrospectivity is touched upon by Williams, although not thoroughly investigated. Williams claims that one corollary of the nullum crimen maxim is the principle that penal laws should be accessible and intelligible.6 This principle is closely linked to the principle that ignorance of the law is no excuse, because that principle relies upon the accessibility of the law for its justification. Retroactive laws are inaccessible in the sense that they are not knowable at the time when the erstwhile legal acts or omissions occur. Clearly, application of the maxim ignorantia juris non excusat to such a situation is unfair as that ignorance is beyond the control of the person in question. Retrospectivity means that even a person well-informed about the law will be ignorant of the illegality of her or his acts because those acts are not deemed illegal until the retroactive law is made. So, it can be seen that retroactive laws are at odds with the principle that ignorance of the law is no excuse.

Supporters of the principle of non-retroactivity point to the scope for abuse of individual liberties that exists where retroactive law is allowed. In the words of one commentator:

... although the advantage of a [retrospective] system of judicial discretion—the protection of society against injuries unforeseen by the law-giver—is recognised ... the protection of the individual against tyranny is deemed a higher necessity.7

The formulation of the principle of non-retroactivity in Article 15 of the International Covenant on Civil and Political Rights has been justified as protecting the rights of the individual. According to one pair of commentators:

... the main principle of [A]rticle 15(1) ... is that the criminal law should be applied as it stood when the offence was committed, nulla poena sine lege. The purpose of the main principle is to proscribe, and thus protect individuals against, ex post facto criminal laws operating to their detriment. The exception8 reasonably departs from this safeguard when its purpose is absent; on the contrary, it not only allows, but prescribes the retroactive operation of the new law when it is to the individual's benefit.9
And again, no explanation is advanced as to why the individual must be so protected, beyond the statement that the principle is "... based on concern for foreseeability and justice".10

Most proponents of the principle couch their arguments in such vague terms as "fairness" and "justice". Typical is the opinion of Sheldon Glueck in 1944:

To depart from the rule of nulla poena sine lege would mean to let international law sink to the depth of Nazi jurisprudence, amongst whose minor "discoveries" is the abandonment of a rule which the rest of the civilised world quite rightly continues to hold in esteem.11
So, indirectly, the principle of non-retroactivity is given legitimacy by reference to ex post facto law-making in Nazi Germany (discussed below).
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Last modified:  31 August 1989