Nulla Poena sine lege

No punishment without a law. This is a famous and fundamental principle of criminal law. It has been established in assorted but growing forms over hundreds of years. You cannot punish somebody under a law which did not exist when the offending act took place, and which he therefore cannot (obviously) have known to exist.

It is vital to recognise that we (UK – to a lesser extent in Scotland) are a common law jurisdiction. Judges are said not to make new law, but in effect to have discovered wht the old law was. Thus strictly under common law, a judge is not applying new law when he creates an offence. In theory he has only re-discovered an old one, and in somewhat harsh principle, a defendant might have made the same inferences and concluded that his intended actions, though not described in any criminal law textbook, might actually yet be an offence. In practice discovering now an entirley new offence at common law would require something quite etxraordinary, but a new extension or modification of an old offence may indeed by very possible.

Common law remains, but we now have, added on top, Human Rights law. The principle is now embodied in the European Convention on Human Rights under article 7

See Cameliara v Italy

It was held there that a prosecutor could decide after the charge in which jurisdiction the prosecution would take place which would affect the sentence ranges available to a court. This was held to be a breach of the principle – exteding the issue not just to the very existence of the offence,,bt beyond that to aspects which indicated how seriously it might be taken.

Article 7 does not, I suggest, completely replace the common law latin principle. A-7 reads

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time that it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

What is not always understood is just how important case law is. Article 7 does indeed provide many substantial protections, but it works as an addition to our own law. Where our law conflicts with Convention rights, then the Conventions prevail, but where a right given or taken under our law is not in direct conflict with the Convention, that right given or taken remains given or taken. Similarly we have our own statute law. Statutes are the decisions of parliament resolved under procedure. A statute will prevail over a common law right. Many many criminal offences are now specified in detail in statutes, but many remain outside any statute. In addition once an Act (or Convention) is passed, there will be many cases offering interpretation and clarification. Access to the statute itself is only part – though a big part – of what is needed. Case law attacks statute law as do barnacles the hull of a great oil tanker.

My point such as it is that the principle – one which sets out to establish a fair system – is incomplete. The citizen needs also to have access to the law. He needs, if considering an action not only to be able to identify the possible crime by reference to existing cases and statutes, but has also to have access to those decisions. Without that facility of being able to ask meaningful. It begs the question whether having access in principle is achieved where the citizen cannot determine his question without access to a full law library of a lawyer with a full law library.

Do not underestimate how difficult it can be for anyone to research case law. Before electronic databases, cases culd be found only in case law text books. It must be understood however how limited these can be. I practiced in two medium sized towns. In one we had at various times up to seven small solicitor practices. Only one – ours – carried any case law series. We carried one – the All England. I once did the roughest of calculations, to come by an estimate that if you selected a which might be of random interest, the chances of it being in that series were about one in twenty. Buy a second series, say the Weekly Law Reports, allow for the fact that many are duplicated, and you raise the odds to about one in fifteen that any case chosen at random might be in the law reports purchased. The combined cost is in excess of what a smaller firm can afford. The situation was not a lot better on Oldham. If a semi-useless library is unaffordable to a small sized firm of professional lawyers, it is clearly well ouside that available to a litigant. Public libraries might provide an answer. No. When last I looked (some time ago) no local authority carried such series. Universities perhaps? Yes, but not all unversities teach law, and fewer are ready to make their libraries available to passing litigants. The only resources providing an answer in the past were major court centres – locally, that would be Leeds.

As in other areas of law, a remedy was available but only to those with deep pockets.

This is where, I suggest, swarb.co.uk makes a real difference. We are part of a new system which indeed makes case law available to anyone and everyone who has access to the internet. The other major players are Bailii (British and Irish Legal Information Institute, Commonlii, Worldlii, justiciary.gov.uk, and an assemblage of other free and paid for services.

The system as it is remains in an imperfect world, a long way from perfect, but the ability of people to discover what law might govern their actions is very much better satisfied for our existence, and that is in itself quite sufficient to justify our existence.

Otherwise, the principle is stated as: Nullum crimen sine lege and nullem crimen, nulla poena sine lege.