The Right to Protection from Retroactive Criminal Law

Abstract

The essentiality of a right to protection from retroactive criminal law has generally been accepted without argument. The principle has been enunciated in various declarations of human rights from 1789 until the present. Nevertheless, there are several examples in international, Australian and British law where the principle has been ignored or (at the very least) circumvented. Three examples of retrospective law-making are discussed: the Nuremberg trials of the late 1940s; the decision of the House of Lords in Shaw v. Director of Public Prosecutions in 1961; and Australian bottom of the harbour tax legislation of 1982. Further, there is the example of judge-made law. When this is taken into account, it can be seen that the right to protection from retroactive criminal law is regularly qualified, to such an extent, and in such an indeterminate fashion, that its status as a human right - even as a qualified human right - is dubious.

Keywords: retroactive, retroactivity, retrospective, retrospectivity, criminal law, human rights