The Law's Retrospective Reach: When Does It Apply?

The concept of retrospectivity in law refers to the application of new laws to matters that occurred before their enactment. Retrospective laws are often seen as contrary to the Rule of Law, as they change what was previously considered legal or illegal, making it difficult for individuals to act in accordance with the law. While some countries, like the United States, expressly forbid ex post facto laws, others, like Australia, have no strong constitutional prohibition against them. In the UK, retrospective laws are permitted due to the doctrine of parliamentary sovereignty. However, they are generally rare and require a clear intention for retrospectivity to be expressed in the statute.

Criminal liability and retrospective legislation

Retrospective laws are laws passed today that change what was legal or illegal in the past. They are made ex post facto, or after the fact, to change what people's rights and responsibilities were in the past. Retrospective laws are generally considered section sign to be inconsistent with the Rule of Law, which requires that people can only be punished in accordance with the law, and that the law should be known and accessible.

The Rule of Law holds that a person may be punished for a breach of the law and nothing else. It is abhorrent to impose criminal liability on a person for an act or omission that did not subject them to criminal punishment at the time it was done or omitted. Underlying this principle is the idea that the law should be known and accessible so that those who are subject to it may conduct themselves with a view to avoiding criminal punishment if they choose.

Retrospective criminal laws are commonly considered inconsistent with the rule of law, which requires all members to be subject to publicly disclosed laws. In 'The Rule of Law', Lord Bingham wrote:

> "Difficult questions can sometimes arise on the retrospective effect of new statutes, but on this point, the law is and has long been clear: you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence."

Retrospective criminal laws must not impose greater punishments than those that would have been available at the time the acts were done. This flows from the principle that the criminal law should be sufficiently precise to enable people to know in advance whether their conduct would be criminal.

In most cases, retrospective legislation will not lead to criminal prosecutions against individuals for activities that were not covered by existing laws at the time those activities were carried out. However, there are some notable exceptions. For example, the War Crimes Act 1945 in Australia created a crime out of conduct that occurred nearly 50 years before its passing.

In summary, retrospective legislation can, in rare cases, lead to criminal liability for individuals. However, it is generally considered inconsistent with the Rule of Law and international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR).

Human rights and international law

However, Article 15(2) of the ICCPR provides an exception to this rule, stating that the application of a retrospective law is valid if the conduct in question was criminal according to the general principles of law recognised by the community of nations.

In addition, the European Convention on Human Rights (ECHR), which is directly applied in the UK by the Human Rights Act 1998, prohibits retrospective criminal laws in Article 7. This prohibition also applies to signatory states outside of the UK.

Despite these protections, retrospective laws that violate human rights and international law have been enacted and upheld in several countries. For example, in the UK, the War Crimes Act 1991 created an ex post facto jurisdiction of British courts over war crimes committed during the Second World War. Similarly, in Australia, the War Crimes Amendment Act 1988 created a crime out of conduct that occurred nearly 50 years before its passing.

Furthermore, in some cases, retrospective laws have been used to protect human rights. For instance, the Australian War Crimes Amendment Act 1988 was applied retrospectively to prosecute individuals for war crimes committed during World War II. This was in accordance with the general principles of international law and helped ensure accountability for serious human rights violations.

Overall, while human rights and international law are generally protected from retrospective legislation, there are exceptions to this rule, and the application of such laws depends on the specific circumstances of each case.

Common law and the presumption against retrospectivity

The common law's disapproval of retrospective laws, especially in criminal matters, is deeply rooted in history. Thomas Hobbes wrote in 'Leviathan' that:

> Harm inflicted for a fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before the law, there is no transgression of the law.

Similarly, William Blackstone wrote in his 'Commentaries on the Laws of England' that:

> [I]t is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement.

In Australia, this approach has been adopted into common law. Deane J in Polyukhovich v Commonwealth stated:

> The basic tenet of our penal jurisprudence is that every citizen is 'ruled by the law, and by the law alone'. The citizen 'may with us be punished for a breach of law, but he can be punished for nothing else'. Thus, more than two hundred years ago, Blackstone taught that it is of the nature of law that it be 'a rule prescribed' and that, in the criminal area, an enactment which proscribes otherwise lawful conduct as criminal will not be such a rule unless it applies only to future conduct.

The rule of law, which requires that laws be publicly disclosed, known, and accessible, is often considered inconsistent with retrospective laws. In 'The Rule of Law', Lord Bingham wrote:

> [Y]ou cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence.

The High Court of Australia emphasised the common law principle that criminal laws should be certain and ascertainable in Director of Public Prosecutions (Cth) v Keating. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability.

The common law does not condemn retrospective civil laws as strongly as retrospective criminal laws. However, retrospective civil laws are still viewed unfavourably as they can cause uncertainty and non-compliance, hindering their effectiveness in guiding behaviour.

The presumption against retrospectivity is also a rule of international customary law, summarised by the maxim 'nullem crimen sine lege', meaning no crime without law. This maxim has been codified in Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR), which prohibits retrospective criminalisation for acts that were not criminal at the time they were committed.

The Rule of Law

Retrospective laws are those that change what was legal or illegal in the past. They are seen as contrary to the Rule of Law because they make it impossible for citizens to know the law and act accordingly. The Rule of Law requires that laws be known and accessible to all, so that everyone can comply. Retrospective laws breach the expectations of citizens, who base their actions on the existing state of the law. They also undermine public confidence in the integrity and reliability of legislation.

The common law presumption is against retrospectivity, and retrospective laws are generally disapproved of. However, there are some exceptions. For example, retrospective laws may be used to validate activities that previously had no statutory basis, or to correct practices that have been found to be illegal. They may also be used to give reassurance to professionals who have inadvertently broken the law due to a flaw in the wording of the legislation.

In some jurisdictions, such as the United States, retrospective criminal laws are expressly forbidden. However, in others, such as the United Kingdom, they are permitted due to the doctrine of parliamentary sovereignty. In Australia, while there is no strong constitutional prohibition on retrospective laws, they are generally interpreted with a strong presumption against retrospectivity.

Treaties and the Vienna Convention

The Vienna Convention on the Law of Treaties (VCLT) is an international agreement that regulates treaties among sovereign states. It establishes guidelines, rules, and procedures for how treaties are drafted, defined, amended, and interpreted. The VCLT was drafted by the International Law Commission (ILC) of the United Nations and was adopted on 23 May 1969, entering into force on 27 January 1980.

The VCLT applies only to written treaties between sovereign states that were agreed upon after the VCLT was ratified. It does not govern agreements between states and international organizations or between international organizations themselves. The convention defines a treaty as "an international agreement concluded between [sovereign] states in written form and governed by international law".

The convention has five parts. The first part defines the terms and scope of the agreement. The second lays out the rules for the conclusion and adoption of treaties, including the consent of parties to be bound by treaties and the formulation of reservations. The third part deals with the application and interpretation of treaties. The fourth part discusses means of modifying or amending treaties. The fifth and most important part delineates grounds and rules for invalidating, terminating, or suspending treaties and includes a provision granting the International Court of Justice jurisdiction in the event of disputes.

The VCLT is recognised by non-signatory countries, such as the US and India, as legally binding upon all sovereign states that have recognised the customary-law status of the convention.

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