Chapter 13 Guidance on answering the self-test questions

1. In relation to Article 7 explain why the common law no longer creates new criminal offences.

Because under the principle of stare decisis common law offences would apply retrospectively (they would be applied in the case in which they were created and so the defendant would be committed for an offence that did not exist at the time of his or her actions). Furthermore, creating an offence is an act of law creation and it is Parliament that should make legal provisions which involve identifying the actions for which a person can be punished. This relates to the general concept of law which pervades the Convention – a law, in context, should be clear and certain in its application, which common law rules might not be.

2. Why was the so-called ‘matrimonial rape’ prosecution (SW v UK) not a violation of Article 7?

Because the development of the law of rape had been signalled with sufficient precision that its application in the context of a marriage was foreseeable at the time of the actions in issue.

3. Define the idea of ‘law’ inherent in Article 7.

This links with the general idea of “law” in the convention – general rules which are accessible and foreseeable so that a person can foresee the situation in which they will be applied. The law does not need to be absolutely clear and certain – a degree of appropriate flexibility is permitted.

4. What is meant by the term ‘penalty’ in Article 7?

A penalty is an autonomous concept. The general definition is that it is imposed following a conviction for a crime, it is aimed at punishment, it is defined as a penalty by domestic law (though this is not decisive) and is relatively severe in contrast with civil sanctions.