Case Law: Retrospective Application And Its Implications

The question of whether case law can be applied retrospectively is a complex one and varies depending on the jurisdiction and the specific circumstances of the case. In general, there is a presumption that statutes are not intended to have retrospective effect, and this principle is upheld by courts of law in various countries. However, there may be exceptions to this rule, and the applicability of case law retrospectively depends on several factors.

Retrospective case law in criminal law

The concept of retrospectivity in criminal law refers to the application of new laws or judicial interpretations to cases that occurred before their enactment. In criminal law, retrospectivity can have a significant impact on individuals' rights and responsibilities, as it can change the legal consequences of past actions.

The general principle regarding retrospectivity in criminal law is that it is not permitted. This principle is rooted in the idea of fairness and justice, as it would be unjust to punish someone for an act that was not criminal at the time it was committed. This principle is often enshrined in the constitutions or bills of rights of many countries, including Nigeria, the United States, and India. For example, the Indian Constitution, in Article 20(1), provides immunity against retrospective criminal laws, stating that no person shall be convicted of an offence except for violating a law in force at the time of the commission of the act.

However, there are exceptions and nuances to this principle. In some cases, retrospectivity may be allowed if it benefits the individual, such as when new laws reduce sentences or lessen rigid sentencing mandates. Additionally, there may be exceptional circumstances where statutory time limits for appeals can be disapplied, as seen in the case of Adesina v Nursing and Midwifery Council in the UK. Nevertheless, these exceptions are generally limited and carefully considered by courts.

The application of retrospectivity in criminal law is a complex and controversial issue. While it may provide relief to individuals disadvantaged by outdated or unfair policies, it also raises concerns about fairness and justice. The balance between ensuring fair and proportionate justice and maintaining legal certainty is a delicate one, and each case must be carefully evaluated to determine if retrospectivity is appropriate.

Retrospective legislation and vested rights

The principle of non-retroactivity is based on the idea that laws should only have a prospective effect and should not be applied retroactively to pending disputes and cases. This principle is often expressed by the legal maxim lex prospicit, non respicit, which translates to "the law looks forward, not backward".

The principle aims to prevent the unjust and oppressive effects of retroactive legislation, which can punish individuals for violations of laws that were not yet enacted, unsettle vested rights, or disturb the legal effect of prior transactions. The presumption against retroactivity is particularly strong when it comes to criminal law, with most nations' constitutions and bills of rights prohibiting ex post facto laws.

However, there are certain exceptions where laws may be applied retroactively. These include:

• When the law itself provides for retroactivity: In some cases, a law may explicitly state that it should be applied retroactively. However, this does not extend to ex post facto laws, which criminalize an act done before the passing of the law that was innocent when committed.
• Remedial or procedural laws: There are generally no vested rights in rules of procedure, so laws that are remedial or procedural in nature may be applied retroactively.
• Penal laws that benefit the accused or convict: Retroactive application of penal laws may be allowed if they are favourable to the accused or convict and the latter is not a habitual offender.
• Emergency laws: Laws that are of an emergency nature and are authorized by the police power of the government may be applied retroactively.
• Curative laws: Curative laws may be applied retroactively as long as they do not impair vested rights or affect final judgments.
• Declaration of substantive rights: If a substantive right is being declared for the first time, retroactive application may be considered unless it impairs vested rights.

It is important to note that the interpretation and application of these exceptions may vary depending on the legal jurisdiction and specific circumstances of each case.

Retrospective legislation and procedural rules

The general rule is that laws are not intended to have retrospective effect. However, this is not prohibited where the intention to operate retrospectively is expressly or impliedly clear from the wording of the statute.

In the UK, the Supreme Court case of Walker v Innospec Limited and others [2017] UKSC 47 summarised the general approach to retrospective legislation. It stated that "legislative changes apply prospectively" and that "an enactment is presumed not to be intended to have retrospective effect".

In the US, the Supreme Court has also emphasised the presumption against retroactive application of statutes. In Landgraf v. USI Film Products, the Supreme Court denied the application of a federal statute that was passed during litigation, citing the Fifth Amendment's due process clause.

However, there are exceptions to the general rule. Retrospective legislation may be allowed in exceptional circumstances, such as where:

• There is an express or implied intention for the law to have retrospective effect: The wording of the statute may clearly indicate that it is intended to operate retrospectively.
• It affects procedural matters: Amendments that are procedural or remedial in nature do not raise the same concerns as those affecting substantive rights. For example, a change in procedural rules or the allocation of jurisdiction may be applied retrospectively.
• It remedies defects in previous legislation: Retrospective legislation in a civil context may be justified under the European Convention on Human Rights (ECHR) if it serves "compelling grounds of general interest", such as correcting issues with previous laws.
• It does not impair vested, substantive rights: If a statute would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed", it should generally only be applied prospectively.
• There are independent grounds for a cause of action or defence: Proposed amendments that create new rights or defences may imply that the current statute does not contain those rights or defences.

Retrospective legislation and the Human Rights Act/European Convention on Human Rights

The European Convention on Human Rights (ECHR) is an international convention designed to protect human rights and political freedoms in Europe. The Human Rights Act 1998 incorporated the ECHR into UK domestic law, and it has had a substantial impact on the legal system.

The Human Rights Act 1998 has had a significant impact on the legal system, particularly in the area of privacy rights. The Act has resulted in a number of seminal judgments, such as in the case of Venables v News Group Newspapers Ltd, where the courts granted an indefinite injunction to prevent the media from disclosing the identities of two ex-criminals.

However, the impact of the Act has not been as marked as expected, with a relatively low number of declarations of incompatibility. This can be attributed to the non-retrospective effect of the provisions and the courts' unwillingness to make such declarations where they feel that defects in procedures can be resolved by the inherent supervisory jurisdiction of the courts.

While there is a presumption at common law that statutes are not intended to have retrospective effect, there is no prohibition on retrospective legislation where the intention to operate retrospectively is expressly or impliedly clear from the wording of the statute. An example of this is the War Crimes Act 1991, which allowed proceedings to be brought against anyone holding British citizenship who had committed a war crime during WWII, even if they were not a British citizen at the time.

The ECHR has played an important role in the development and awareness of human rights in Europe, particularly in the aftermath of World War II and in response to the growth of Stalinism in Central and Eastern Europe. The convention has sixteen protocols, which amend the convention framework, and it has had a significant influence on the law in Council of Europe member countries.

Article 7 of the ECHR prohibits the retroactive criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. This article incorporates the legal principle of nullum crimen, nulla poena sine lege (no crime, no penalty without law) into the convention.

Case Law

Case law does not have a retrospective effect on decided cases. However, courts may allow the retroactive application of statutes, regulations, or standards under certain circumstances. For example, in SEC v. Chenery II, the U.S. Supreme Court allowed the retroactive application of an SEC adjudicatory proceeding, stating that "every case of first impression has a retroactive effect".

In the UK, the case of Shanker v GMC confirmed that judicial decisions do not have a retrospective effect on decided cases. The court reiterated the general principle that judicial decisions do not apply retrospectively to decided cases, although the position is different where proceedings are ongoing.

In conclusion, while the Human Rights Act 1998 has had a substantial impact on the legal system, particularly in the area of privacy rights, its impact has been limited by the non-retrospective effect of its provisions. The ECHR, on the other hand, has had a significant influence on the law in Council of Europe member countries, with Article 7 of the convention specifically prohibiting the retroactive criminalisation of acts and omissions.

Retrospective legislation in civil law

While the prohibition of ex post facto laws is entrenched in most nations' constitutions and bills of rights, this is usually restricted to criminal law. For example, the Constitution of the Federal Republic of Nigeria expressly prohibits ex post facto laws in relation to criminal offences. However, it does not prohibit ex post facto laws in civil matters.

In the US, the Fifth Amendment's due process clause underpins the principle of disfavoring the retroactive application of the law. Nevertheless, courts may allow retroactive application of civil laws under certain circumstances. For instance, in SEC v. Chenery II, the U.S. Supreme Court allowed retroactive application of an SEC adjudicatory proceeding, stating that "every case of first impression has a retroactive effect".

In the UK, retrospective legislation in civil matters is generally allowed, as there is no prohibition on retrospective legislation where the intention to operate retrospectively is expressly or impliedly clear from the statute's wording. For example, the War Crimes Act 1991 allowed proceedings to be brought against anyone holding British citizenship who had committed a war crime during World War II, even if they were not a British citizen at the time.

In Australia, retrospective civil laws are not scrutinised by the common law with the same intensity as retrospective criminal laws. While Australian courts generally apply a presumption against retrospectivity, they have also accepted that state and Commonwealth parliaments have the authority to enact retrospective laws.

In summary, while retrospective legislation in civil law is generally discouraged, it is not prohibited in many jurisdictions. The key considerations are whether the legislation clearly intends to have a retrospective effect and whether it complies with human rights protections and the rule of law.

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