Chapter 13 Guidance on answering the exam questions

1. Able is accused of historical child abuse offences. The legal definition of the crimes he may have committed has changed since the time of the alleged offences so, under the current law, he could be charged with more serious offences than were open to prosecutors at the time of the offences. Furthermore, the punishments available today are more severe; in addition, a judge, today, is likely to treat the same facts more seriously than at the time of the offences and, therefore, punish at the higher end of the range of punishments available.

Advise the Crown Prosecution Service on the effect of Article 7 on the decisions they must make regarding the offences to prosecute and, if there is a conviction, the punishment that might be argued for.

• This question deals with Article 7 which forbids the retrospective application of the criminal law.
• Introduce Article 7 and the principle of Nullum crimen, nulla poena, sine lege and relate it to the general principle of law and the rule of law that pervades the ECHR. Note the general principles such as the need for proper clarity in offences subject to reasonable flexibility.
• The first part of the principle and the first sentence of Article 7(1) prohibit the prosecutor from charging Able with offences that were not available at the time the offences were committed.
• There is a possible exception to this which is if the change in the law has been clearly signalled (as in the issue of “matrimonial rape” - SW v United Kingdom.
• Since the question suggests that the law at the time of the offence was clear, your conclusion is probably going to be that Able cannot be punished on the basis of today’s more serious offences.
• However, Article 7 also forbids retrospective punishments (in the second sentence of Article 7(1). So Able cannot be punished on the basis of the punishments available for offenders today but not at the time of the offence. However the issue is whether Article 7 is breached by a punishment today that is more severe than would have been imposed at the time but is, nevertheless, within the legal range that was permitted at the time.
• Both the ECHR (in Coëme v Belgium) and the UK courts (in R (Uttley) v Secretary of State for the Home Department) find that Article 7 is satisfied so long as the punishment imposed today is within the legal range permissible at the time of the offence (see also R v Clifford).
• In conclusion, Able could not be charged with the more serious offence but he could be given a more serious punishment so long as it is within the legal maximum allowed at the time the offence was committed.

2. Critically evaluate Article 7(2)—which, in essence, states that Article 7 does not prevent prosecutions for international crimes.

• This question considers whether Article 7(2) allows retrospective application of criminal laws in the context of international crimes.
• International crimes are crimes identified and codified by the international community deriving, principally, from the Nuremberg trials at the end of the Second World War and further developed and refined in various special tribunals and, in particular, in the Rome Statute of the International Criminal Court.
• On their face such crimes (e.g. Crimes Against Humanity) can be retrospective since the defendants may have been acting lawfully, in terms of the domestic law, at the time. In this situation, it would seem that Article 7(2) provides an exception to the nullum crimen principle.
• However, firstly, the ECtHR insists that international crimes simply reflect general humanitarian principles that people in power in dictatorships and lawless regimes should (and probably doubt did) know reflected international legal standards at the time. In that sense there is no moral objection to Article 7(2).
• Despite this, the ECtHR may prefer to use Article 7(1) if possible. Indeed, few cases have been decided using its provisions.
• Thus there have been cases were the issue was not that the defendant was, at the time, acting lawfully (in terms of the domestic law) but that, at the time, the defendant was acting in breach of domestic law that was not being enforced and which was regularly ignored by the executive. This was the case in the East German cases such as Streletz, Kessler and Krenz v Germany.
• Likewise, Kononov v Latvia was decided using Article 7(1). Here the position of the ECtHR was that international legal standards, applicable at the time in 1944, were sufficiently clear that a person in the claimant’s position as a commander of a partisan group could and ought to have known that he had legal duties towards civilians. Article 7(1) makes it clear that the relevant “law” can be international law. Therefore, the prosecution in Kononov did not involve the retrospective application of the laws; Article 7(2) was not involved at all.
• In conclusion you might suggest that Article 7(2) may seem to involve an exception to the nullum crimen principle but, possibly does not, since common humanity and international norms developed at least (if not before) in the first half of the Twentieth Century make it clear the senior officials and commanders what is acceptable.
• Nevertheless, it is clear that the ECtHR has preferred to solve the cases before it by reference to Article 7(1) and so avoid having to deal with the issue directly.