In the United Kingdom, protection against punishment without law is provided by Article 6 of the European Convention of Human Rights, which is incorporated into both the Scottish and English legal systems by the Human Rights Act of 1998.
The provisions made in Article 6 of the European Convention on Human Rights for a fair trial would be an irrelevant detail were it not for those Article 7, which ensure that once brought to trial, a conviction and punishment will be handed down to the accused as appropriate with regard to the law at the time the offence was committed. Within Article 7 is contained the right not be punished for an act or omission which was not considered criminal under national or international law at the time it was committed, bringing the concept of legality into the convention, conferring an absolute right upon the citizen which would be irrevocable even in times of war or public emergency.
In order to understand the need for such a right, it is perhaps best to examine a case prior to the passing of the Human Rights Act, or the acceptance of the concept into the Scottish legal system, in which the need for such a right was first raised. The necessity for the right, as far as the Scottish legal system is concerned, stems from the declaratory power of the High Court, the ability to declare criminal something which had not previously been so. While generally this power exists only to clarify common law crimes where there may be no existing precedent, in the occasion of Bernard Greenhuff the judiciary declared it a crime to keep for profit a gambling house. Therefore Greenhuff was convicted of a crime of which he had not been afforded adequate knowledge of to avoid.
It is clear in such a case why a safeguard such as Article 7 would seek to prevent such a conviction, however given the nature of evolving common law, it is important that the courts not be stifled to the point of ineffectiveness. To this effect, it has been found that while Article 7 dictates that criminal liability should not be found by courts, nor should culpability be extended, where previously it had not been, it is acceptable that the courts should continue to allow proper adaption and evolution of the law.
This approach has been examined by the courts on a number of occasions, perhaps most prominently in Sunday Times v UK, where the balance between the need to avoid a rigid, outdated law was struck with the necessity to have an accessible and adequately predictable law in order to allow the citizen to foresee the consequences of his actions. The need for such evolution in law can be seen in areas such as sexual offences, an area in which the approach of the courts has had relative success in keeping pace with the changing attitude of society, where the definition of the crime of rape has over the years been altered. In the cases of SW v UK and CR v UK, two men had separately been charged with the rape of their wives, which at the time had not been declared a crime. Before the two came to trial however, a third case came before the courts, where it was declared an “anachronistic and offensive... fiction that a husband cannot be guilty of raping his wife ” . Therefore, both of the accused claimed that the charges were a clear breach of Article 7, that the charges were of offences which were not criminal at the time of commission. It was held, however, that the accused ought to have foreseen the change in law with regards to immunity to the charges on the grounds of marriage. It was therefore held that there had not been a breach of Article 7.
Not least to the determent of courts seeking the clarification and evolution of common law, Article 7 has in fact in some areas done quite the opposite. Prior to the case of Smith v Donnelly, the offence of breach of the peace had been considered very much out of control in terms of exactly what constituted culpability. In that case however, it was argued successfully by the appellant that vague nature of the offence breached Article 7(1), as it conflicted with the rule that laws should clearly be defined, leading to a change in the way in which the courts approached breach of the peace, resulting in a far more satisfactory and specific definition of the offence.
In seeking to prevent interference with the trials of those involved with such offences as war crimes, Article 7(2) makes clear the fact that the first paragraph does not refer solely to national, but also international law. This has allowed, for example, the prosecution under the War Crimes Act of those accused of atrocities in Germany and her occupied territories during the Second World War, who otherwise would have escaped punishment on the basis that their crime was not at the time specified under their domestic legislation.
Even once the conviction has been reached, the court may not, in sentencing, hand down a penalty which is out of proportion with that which was applicable at the time of the offence. An appropriate example is that of Welch v UK, in which an applicant convicted of drug trafficking was handed a fine in proportion with legislation that had only come to pass after the time of the offences. Here the court defined the fine as a penalty, as, despite accompanying a jail term, it went beyond a mere confiscation of criminal assets, and could therefore not be imposed retrospectively under Article 7. The European Court inferred that whether or not action taken was a penalty relied on factors such as the nature and reasoning for the measure, the timing in regards to the conviction and the severity of the measure.
The European Court of Justice, though human rights were not included in the founding Treaties, has gradually brought Convention into the community law “by the back door”. As the European Convention on Human Rights has been brought into our legal system through the Human Rights Act and the Scotland Act, widely considered to entrenched, courts have been directed to presume, in interpreting parliamentary legislation, that parliament intended to legislate in line with it (though it is out with the courts power to declare conflicting legislation invalid). An individual may challenge a breach of the Convention, as set down by the Eleventh Protocol, which created a court to which applicants may apply to directly. Applicants can be states, organisations, individuals or groups of individuals, however there is a stipulation that they must have exhausted all domestic remedies. Courts will examine the complaint providing that it differs adequately from those already examined, and so long as there is no abuse of the right to petition under article 35.
Article 7 can therefore be seen to have achieved to a great extent what it set out to do. Common law systems have been afforded the freedom required to continue to evolve, while areas in which the law was unsatisfactorily vague have been brought into line. However, in areas where the courts have failed to do so, a remedy exists for the individual as provided for by the Eleventh Protocol.
Christina Ashton and Valerie Finch, Human Rights and Scots Law, Edinburgh, W.
Green/Sweet and Maxwell 2002
Gane, Stoddard, Chalmers, A Casebook on Scottish Criminal Law (3rd edition) Edinburgh W. Green & Maxwell
Farran, The UK Before the European Court of Human Rights, Case Law and Commentary, Blackstone Press Ltd.
Bradley & Ewing, Constitutional and Administrative Law, Fourteenth Edition, Pearson Longham
Greenhuff, Bernard (1838) 2 Swin 236
Charles Sweenie (1958) 3 Irv. 109
Welch v UK Series A, Vol. 307 as per Farran, The UK Before the European Court of Human Rights, Case Law and Commentary
T, Petitioner 1997 SLT 724 as per Farran, The UK Before the European Court of Human Rights, Case Law and Commentary
Smith (P) v Donnelly 2001 S.C.C.R. 800
SW v UK & CR v UK Council of Europe Press Release (20-27 April 1995) as per Farran, The UK Before the European Court of Human Rights, Case Law and Commentary
Sunday Times v UK 2 EHRR 245, Series A, Volume 30
R v R (1991) 4 All ER 481
Article 7(1) European Convention on Human Rights
Human Rights Act 1998
Scotland Act 1998
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