The right to protection from retroactive criminal law

Judge-made law

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All judge-made law is necessarily retrospective. Whenever a court makes a decision which settles a previously unsettled principle, or which reverses previous cases, the person who is the subject of the case in question is affected by the newly-enunciated law. This is despite the fact that her or his acts or omissions are always committed before the decision is handed down.

In the early years of the development of the common law, courts played a considerable role in making law. Williams gives several interesting examples where English courts created crimes: public nudity (1664), blasphemy (1676), sedition (an eighteenth century extension of the law of libel), and forgery (1727).36 But the courts' scope for making laws has been reduced in the last two centuries, mainly due to the increased role of Parliament in law-making.

Some judges have claimed that all of their decisions are interpretative: that judges do not make law, but that they extract pre-existing law from the body of the common law. As discussed above, Lord Reid in Shaw v. DPP claimed that conspiracy to corrupt public morals was an existing crime. He, alone amongst the law lords in Shaw's case, claimed that he was not creating a new offence.

If a previous line of authority is overturned by a court then only one of the following conclusions can be correct: either the court is interpreting the existing law (which means that the cases overturned must have been wrongly decided), or the court is making new law. The first conclusion (from the interpretative argument) is at its most tenuous when the line of authority which is overturned is long and well established.

There is no doubt that courts retain their residual law-making power; courts of appeal would be impotent without it. The existence of this power is accepted, for the most part, without any realisation of the retrospective nature of the justice system.

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Last modified:  31 August 1989