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, 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,, 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.

From 1996

It may be part of my story that I have been personally involved in the provision ofaccess to case law for many years. In 1996 I was asked to review a new service from the New Law Journal, which led to a brief exchange. I am not sure that they have yet forgiven me:

  • JILT 1996 (3) – David Swarbrick
    New Law goes On-line
    David Swarbrick,
    Swarbrick & Co

    Someone has to do it sometime. It has to be possible to provide quick and easy access to court reports on-line at a reasonable cost. The New Law Publishing Co (‘New Law’) with their ‘New Law On-Line’ service aims to fill just that gap. Readers may well already be aware of this company’s fax service, the new service brings the same information onto the Internet.

    New Law obtain judgements as made on a day by day basis. A case is decided one day, and summarised by New Law the next. The full text judgement is available in preliminary format the day after. When the official judgement is handed down, it immediately replaces that initial ‘hot off the press’ version. Thus the best available text of the judgement is always available as quickly as it ever will be. This service is now extended so that the text of the judgement is available via the World Wide Web and is therefore also provided in electronic text.

    An idea underpinning this service is that information has become a commodity. Until it is needed, you do not need it, and when you need it, you require it ‘just in time.’ Why stack quantities of books on your shelves, when all and only the information you need can be identified, located, and brought to your desk in less than the time it would take to get off your bottom, wander down to the office library, look about for mis- placed volumes and indices, search them, meander off to the photocopier and have what you want copied and brought up to you. Success would be a true marvel, and to be fair New Law have just about managed it.

    What is impressive is the no-nonsense simplicity of the service. Log on, password, choose your area of law, choose the range of cases, see the head-notes, select a digest, read it and (if you want) click to download the full text of the judgement. The layout of the screens is uncluttered and straight to the point. The structure is logical, and what the user thinks needs to happen next, does happen next, and the way to do it is just about self-evident. The system does what windows type systems should do, make the manual just about unnecessary. Anyone sufficiently au fait to navigate the World Wide Web can be confident of tackling the scene he or she finds at this site.

    I am also quite convinced that electronic text is a major advantage and a clear necessity for an Internet service. A competing system, Sweet and Maxwell’s, provides a similar service until the very last moment. Having struggled and strained through the web and found the nugget you need, you find at the very last moment that fulfilment is denied to you and the judgement you urgently desire can be faxed to you almost instantly upon the press of a button and the charge of a credit card. Anyone who has got this far does not, definitely does not, want a fax, they want electronic text, and they want it now. The New Law system provides just that consummation. [Sweet and Maxwell’s response to this point]

    The other aspect of the service is the summary. It provides a way of keeping up to date. This summary service is free once you subscribe. The ability to search the database is most useful, and to know that you have obtained a definitive answer to a question is worthwhile. It is possible that a regular visit to the site to get an update on the most recent developments in the law will become de rigeur for many users. I do have one or two minor doubts.

    The system depends upon the world wide web, and moreover the very latest and most technically able software. Many Internet users still do not use the Web. In some (dwindling) circles, the net is to be used by those exchanging text and text only – mail and news. Among those who do use the Web, by no means everyone will have the latest Navigator or Explorer and cannot get to the site. New Law need to leave the system just as it is so that the rest of us can catch up with our software. It makes full and proper use of the latest web features but additional bells whistles and Java type geegaws should be left for others.

    At present the coverage is from the beginning of 1995 and it is not intended to take the series back in time. This places New Law’s pitch fairly and squarely at those whose absolute last and desperate need is for the very latest judgement, the one handed down yesterday and unavailable to everyone else. This may be pandering to the weaker types in the profession; those whose lives are permanently darkened by paranoia – ‘I looked this case up last week, but has it been reversed since?’ and even more annoying the lawyers who dream of running into court on the last day of a trial waving a brand new decision to rescue the client and more importantly get one over on the firm down the street. Both are genuine but not particularly attractive aspects of the lawyer’s mind.

    Until the series has been established for several years and the coverage has grown accordingly, this ‘very latest case syndrome’ is inevitable. At the same time, it is happily undeniable that it is the more recent cases which we usually need to look up. These are the cases who have not found their way into the books, let alone whose status has been settled as worthy of its own chapter in a ‘proper’ law, or destined for relegation to life as a footnote or worse yet an ‘also decided.’

    Will printouts of this series be accepted in court? I am sure they should be, and New Law are as confident as you might expect, but they may yet have a little more to do. A book is not easily altered so that the history of reciting of cases in court has never involved the questioning of the veracity of the text. Things went a stage further with LEXIS print-outs. Lexis reports however have their own recognisable style, and in the past have been printed out more or less under the control of the publishers using dedicated Lexis terminals. Lexis also are reproducing case reports which are already available as major reports series.

    New Law have a few additional difficulties. If I download a case, and wish to reproduce it in court, I have complete and easy access to the text and could for example insert or delete a ‘not’ here and there as required. The look of the printout will vary according to how I choose to prepare it, and there will be a temptation, perhaps inescapable in some firms, to mark it to show that it comes through them (`Look everybody, we’re on Internet’).

    I may not be disbelieved turning up in court with a printout, but I may have to spend some time establishing its provenance. I have heard reports of people with Lexis print-outs being asked byjudges to provide the ‘real’ book for the court. How much further will New Law have to go? New Law should provide some documentation to explain and support their printouts, and an easy way of verifying their accuracy, perhaps by the use of digital signatures.

    The brief historical range will be a major limitation for some time. The service covers very recent cases in Criminal Law, Commercial Law and Property Law. As each month goes by the unacknowledged embarrassment will diminish, but there is yet some way to go.

    An issue which New Law appear not to have dealt with as yet is as to what users are expected to do after downloading their case. Having emerged smiling from court where does the case go. We all know the miseries of filing loose-leafs – how much more pain will be felt at texts each of which has cost twenty pounds being lost on assorted hard disks in an office, and who is going to index them.

    The last doubt relates to the charging structure. When we buy a book, or subscribe to a series of law reports, we put the cost down as an overhead, a general expense. Because the need for a particular case report is associated with a current matter, the temptation may be to move the cost across until it becomes a disbursement chargeable to a particular matter. This raises issues well beyond the scope of this review, but I feel discomfort with the idea.

    Will I be subscribing? No. I would like to use the system, but I rarely run down to court with the latest judgement. Life isn’t quite that exciting. I have other well established ways of keeping my own knowledge up to date, and yet another will have to fight hard to establish a place. The competition from other systems – Lexis, the Sweet & Maxwell system and latterly also the Times (whose cases reports are available free on the web) is stiff and improving all the time. I am not convinced either that having a database on-line is going to be attractive. On-line access is still awkward. I have been using on-line services for several years, but it will still be some time before it is natural to look for a case first by logging on, and then trawling the depths of e-space.

    Certainly for those practising criminal law in the lower courts (anywhere outside the Court of Appeal perhaps), the service would be interesting but quite uneconomic. A fixed fee Legal Aid system starting at one hundred and forty four pounds and twenty five pence per case simply does not allow room for such lavish expenditure. New Law have targeted the upper reaches of the law professions, and let us hope they find a profitable home there.

    Date of publication: 30 September 1996

    Citation: Swarbrick D (1996), ‘New Law goes On-line’, Web Review, 1996 (3) The Journal of Information, Law and Technology (JILT). . New citation as at 1/1/04:

  • Response to ‘New Law Goes On-Line”
    Dear Editor

    I was very interested to read the application review by David Swarbrick in Issue 3 of JILT on the New Law case service, and would like to respond to his comments on Sweet & Maxwell’s Cases Direct transcript ordering system.

    Mr Swarbrick says that after having found a relevant transcript

    ‘Anyone who has got this far does not, definitely does not, want a fax, they want electronic text, and they want it now.’

    We have certainly considered this at Sweet & Maxwell, but at the moment feel that our customers’ best interests are served by the supply of printed, rather than electronic, text. The transcripts we supply are the official judgments as sent to us by Smith Bernal. If we were to supply these as electronic text, each printed-out version would look slightly different, and the pagination would inevitably be altered. For a transcript to be accepted in court, it is important that it should be recognised as the authoritative version, and that all copies should be identical so that it is possible to refer to the text on a particular page. This would not be possible if everyone had a different style of printout.

    It is also of course very easy to make untraceable alterations to electronic text, whereas this is very much harder on a printed text.

    We have also tried to bear in mind the fact that while most major law firms have Internet access, the majority of our customers do not. By providing a service which does not depend on the Internet for delivery we can make this available to as many users as possible. Customers who do not have Internet access can simply phone in and our staff will search the database on their behalf.

    These are the considerations which have persuaded Sweet & Maxwell to offer our customers, at what we believe to be a very reasonable price, the best of both worlds : the ease of searching and ordering electronically; and the assurance that the transcripts they receive are the authoritative versions which will be accepted in court.

    Yours sincerely

    Nicola Freshwater
    Sweet and Maxwell
    21 October 1996
    Date of publication: 21 October 1996

    Citation: Freshwater N (1996), ‘Response to New Law goes On-line’, Comment, 1996 (3) The Journal of Information, Law and Technology (JILT). . New citation as at 1/1/04:

  • Response to ‘Sweet and Maxwell’
    I reply to the letter from Sweet & Maxwell about my own review of the New Law on-line case service (and my aside about Sweet & Maxwell’s own service) I am embarrassed to be seen to be wanting the last word, but that doesn’t usually stop me …

    I am pleased to see that Sweet & Maxwell anticipated some of the difficulties which I also foresaw and referred to in my review of the New Law on-line service. Our agreements are more significant than our disagreements.

    I agree first that we need consistent references to paragraphs within judgements and that some re-assurance has to be given to courts as to the accuracy of any document they are given. However, both problems are easily resolvable. The first can be done simply by numbering the paragraphs in the judgement. We are accustomed to page numbers, but no doubt we can change. Many years ago I am sure the Egyptians worried awfully when people wanted to move on from referencing cases by papyrus leaves, and the Romans were equally unhappy moving on from folios. We just move on, and the judges, bless their little cotton socks, will just have to move on too.

    The accuracy of an electronic document can be guaranteed by a digital signature – it appears as a jumble of characters at the end of a piece of text. This can be as strong a certificate as you like. At the same time it is a mistake to assume that a fax is fiddle proof. Material I receive on a fax modem can readily be edited before printing. Equally, the client of the service will be advocates and officers of the court. If they fail to persuade a court of the honesty and accuracy of the case law they present then that advocate should perhaps be facing up to other, more pressing, qustions.

    I appreciate that a fax service may be in demand from S&M’s customers not connected to the Internet and I applaud its provision. It just seems to me, going back to my original review, (which was not an attack on Sweet & Maxwell) that S&M have not appreciated that anyone who has got as far as finding a real live on-line reference for a case will be so chuffed that they cannot wait to download it. To finally find something useful on this wondrous web only to be told immediately that you have to revert to the fundamentally grubby medium of a fax machine may be, to put it politely, disheartening. I speak here as one who knows. I provide a similar on- line index of cases, from which it is not possible to download a judgment.

    David Swarbrick, Solicitor, 22 Bradford Rd Brighouse HD6 1RW UK
    29 November 1996
    Date of publication: 29 November 1996

    Citation: Swarbrick D (1996), ‘Response to Sweet and Maxwell’s Response to New Law Goes On-line’, Comment, 1996 (3) The Journal of Information, Law and Technology (JILT). . New citation as at 1/1/04:

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