The Right to Protection from Retroactive Criminal Law

Criminal Law Journal, Vol. 13, No. 4, 1989

14 Pages Posted: 30 Jan 2009 Last revised: 24 Aug 2018

See all articles by James Popple

James Popple

Australian National University (ANU)

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

Suggested Citation

Popple, James, The Right to Protection from Retroactive Criminal Law. Criminal Law Journal, Vol. 13, No. 4, 1989, Available at SSRN: https://ssrn.com/abstract=1335644 or http://dx.doi.org/10.2139/ssrn.1335644

James Popple (Contact Author)

Australian National University (ANU)

Canberra, Australian Capital Territory 2601
Australia

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