No punishment without law

You cannot be charged with a criminal offence for an action that was not a crime when you committed it.

This means that public authorities have to make sure that laws explain clearly what counts as a criminal offence, so that you know when you are breaking the law.

It is also against the law for the courts to give you a greater sentence than was available at the time you committed an offence.

Restrictions

The right to no punishment without law is absolute. This means that it cannot be restricted in any way.

However, the Human Rights Act does make an exception for acts that were “against the general law of civilised nations” at the time they were committed. For example, this sort of provision allowed war crimes to be prosecuted following World War II.

What the law says

Article 7: No punishment without law

1. 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 law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article 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 civilised nations.

Example case

R v Secretary of State for the Home Department, ex parte Uttley (2004)

In 1995 a man was convicted of various sexual offences, including rape. He was sentenced to 12 years’ imprisonment. He was released after serving two-thirds of his sentence, subject to licence conditions until three-quarters of the way through the sentence. However, had he been convicted and sentenced at the time the offences took place, the legal provisions then in force would have entitled him to be released on remission without conditions. He argued that the imposition of licence conditions rendered him subject to a heavier penalty than that which was applicable at the time the criminal offence was committed, and that this was a breach of the right to no punishment without law. The House of Lords disagreed. They held that human rights law would only be infringed if a sentence imposed on a defendant exceeded the maximum penalty which could have been imposed under the law in force at the time the offence was committed. That was not the case here because, even at the date of the offences, the maximum sentence for rape was life imprisonment. The right to no punishment without law was not intended to ensure that the offender was punished in the exact same way as would have been the case at the time of the offence, but merely to ensure that he was not punished more heavily than the maximum penalty applicable at the time of the offence. In any event, the imposition of licence conditions did not render the sentence heavier than it would have been under the earlier regime.

(Case summary taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)

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