Nullum Poena Sine legem

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 the years. You cannot punish somebody under a law which did not exist when the offending act took place, and which he therefore cannot have known existed.

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 dscovered 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.

Common law remains, but we now have, added on top, Human Rights law. The principle is now emodied 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.

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.

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.