The right to protection from retroactive criminal law

Conclusion

Judge-made law

Contents

Notes

The right to protection from retroactive criminal law is well recognised throughout the international community. Yet there are many examples, in communities which claim to espouse this right as being fundamental, where retroactive criminal laws have been made. The three examples of retroactive criminal law-making discussed above differ greatly in the extent to which each has been greeted with approval or disapproval.

The Nuremberg trials are generally said to have been fair, despite the demonstrably retrospective nature of the charges laid against the Nazi defendants. This is clearly due to society's abhorrence of the atrocities committed by the Nazis in World War II. Yet, regardless of the repugnant nature of what the Nazis did, it is clear that they were denied protection from retroactive criminal law.

Shaw, too, was convicted of a crime which was not a crime at the time that he published his "immoral" booklet. The denial of Shaw's right to protection from retroactive criminal law has not been embraced as warmly as that of the Nazis at Nuremberg. On the contrary, the writings of jurists in the years after Shaw's case have tended to criticise that decision of the House of Lords.

The "bottom of the harbour" legislation fits neatly between the two previous examples. Public opinion on the fairness of that legislation would probably be divided between those who believe that the tax evaders should be brought to account, and those who hold the principle of non-retroactivity higher than punishing tax default.

In human rights conventions, the right to protection from retroactive criminal law is typically qualified by the proviso that the protection does not apply to acts or omissions which are criminal according to the general principles of law recognised by the community of nations. Yet that proviso is not applicable to any of the chosen three examples; not even to the trial of the Nazis.³⁷ These examples are such disparates that it is not possible to extract a common set of circumstances under which a defendant could be said to forfeit the right to protection from retroactive criminal law.

As well as these three specific examples, judges regularly make law which is essentially retrospective. Their power to do so is not questioned. But the extent to which the principle of non-retroactivity is ignored every time a judge makes law must be taken into consideration.

So, it can be seen that, despite the statement that the principle of non-retroactivity is a fundamental human right (in various statements of human rights), retroactive law has been made, and continues to be made, in societies which ostensibly accept that principle as being a right. In Australian Federal politics, the practice of "government by press release"—where legislation comes into force (retrospectively) from the date of the public announcement that the government intends to legislate—has become common.³⁸ This practice has drawn criticism,³⁹ but retroactive law-making is usually accepted, often tacitly.

Courts and legislatures have shown a willingness to adopt a retributive approach to punishment and to punish retrospectively. When judge-made law is taken into account, it is at least arguable that the human right to be protected from retroactive criminal law is as much honoured in the breach as in the observance. Its application is limited, and that limitation is unpredictable. Non-retroactivity is an important principle, but it does not deserve the status of a fundamental human right.

Judge-made law

Contents

Notes