Article 7 represents a globally important constitutional principle:
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 or international 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.
What does this mean?
This right means that we must have the foundations of our rule of law protected. “The Rule of Law, in its most basic form, is the principle that no one is above the law”, a constitutional principle which aims to ensure proper justice and equality in any political system – no matter how corrupt a government may be, or even if there’s anarchy.
There are 2 fundamentally important parts to understanding this right:
- 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 or international law at the time when it was committed.
This means that you cannot be convicted of a crime, if you committed it before it became a crime. So, if tomorrow the UK government made it illegal to dance to Blue’s “classic” ‘One Love’, by no means can they arrest me for that incredible Year 6 talent show performance I put in. It’s in the past and there it shall stay. The importance of this, is that all people should know that there is a law against what they are doing – you can’t say someone is doing something illegal if at the time there was no evidence of it being a criminal offence. Such actions could theoretically allow the sovereign (i.e. those in charge of us) to retrospectively charge anyone they like for anything they have ever done. This would not bring justice (as the law is intended to bring), just extreme power.
Just to clarify, this does NOT mean that if you shoplift and argue that you didn’t know it was a crime, you’ll be found not guilty. You will still be found guilty of shoplifting and Article 7 will not save you. There’s a difference between not knowing the law because there is no such law and not knowing the law because you choose to ignore it. Not even Joey Essex could use this excuse, no matter how believable it may be.
One more exception to this prohibition on retrospective action is that it does not apply if the actions you took were criminal in international law. Now, I’m sure you’ve all seen some of the ridiculous laws that still float about in the US for example (apparently you can’t take a picture of a rabbit between January and April without an official permit in Wyoming) and don’t worry, this isn’t what this section is for. You’ll be glad to know you can take as many pictures as you like of rabbits come the New Year. What it is actually for, is to capture things such as genocide, war crimes etc., which are dealt with in international law. So, this way, if a war crime occurred in the UK, we can still charge the person committing it with a crime, even if we don’t have national law which define it as a crime.
- Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
In the same way that you need to know if what you are doing is a crime, this right says we must know what the penalty will be. A heavier penalty than the one we thought we would get, infringes our Article 7 right.
Again, it should be clarified this does not mean saying you’d only get community service for murder, means giving you the life tariff infringes this right. Article 7 is not there to allow us to act clueless and avoid justice. It is there to ensure justice.
How successfully is it applied?
As I have said previously, many countries around the world are envious of our justice system – boasting precedent followed all over the place and the structure of legislation that acts as a template for others to follow. It obviously follows that this right is generally very well maintained in the UK. There have been some cases where the UK’s upholding of Article 7 has been questioned, but generally they have been deemed to have sufficiently protected it. For example, in SW v United Kingdom; CR v United Kingdom (1995) applicants to the European Court of Human Rights (ECtHR) claimed UK courts had infringed their Article 7 rights, as they were convicted of raping their wives. At the time of offence, there was still an exception in the criminal law of rape if the woman claiming to have been raped was your wife at the time. This changed after the offence and they were convicted of that offence. Although this may seem retrospective – the ECtHR held the actions of the court were compatible with Article 7, as it is reasonable for them to adopt extensive interpretations of law in the interests of developing society. It was suggested that this was an obvious ‘next-step’ in the law against rape and therefore the fact that there was still an exception at the time of the offence did not matter – the applicants had their appeal rejected and the UK were held to be complying with Article 7.
Not only does this represent an example of UK compliance, it represents the importance the ECtHR places in ensuring these rights are not reducing the pace of evolution in any signatory states progression. They want these rights to be dynamic, to ensure longevity and efficiency in their application. If we still applied the rights in the European Convention on Human Rights as they were first applied in the 1950’s, it would have catastrophic effects on Europe. Discriminating against women and ethnic minorities would be accepted, regulation of our behaviour would be more prominent, freedom of speech would only be allowed if you agreed with the majority. Pretty much it would be like the USA from next year if Trump gets in the White House (awful thought isn’t it?). The Court recognises that society is dynamic, it never stays the same and our rights must move with that – to offer society the best chance to keep flourishing and avoiding the likes of Donald Trump and his xenophobic pals from moving us back to square one. The way Article 7 is upheld in the UK shows the effectiveness and success of such an approach.
Another one down and tomorrow we move on to Article 8 – A right to a private and family life. See you then!