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Can you be convicted for a crime you committed, before the offence was made illegal?
Supposing a person commits a crime by an act which they know to be wrong; can they be convicted later on if they committed the crime before the offence became illegal? An example is Marital Rape. As far as I know this was formally outlawed in 1976. Supposing in 1972, a man has sexual intercourse with his wife under duress, and against her will. Can she then sue her husband in 1978 for a crime committed in 1972, when this was arguably legal - or at least the law made no clear decleration that it was illegal?
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Chiron
Supposing a person commits a crime by an act which they know to be wrong; can they be convicted later on if they committed the crime before the offence became illegal? An example is Marital Rape. As far as I know this was formally outlawed in 1976. Supposing in 1972, a man has sexual intercourse with his wife under duress, and against her will. Can she then sue her husband in 1978 for a crime committed in 1972, when this was arguably legal - or at least the law made no clear decleration that it was illegal?
No. It was not illegal at the time, so he did not commit a crime (legally).
zaf1986
No. It was not illegal at the time, so he did not commit a crime (legally).
But from what I gather, the 1976 law specified rape as "unlawful sexual intercourse with a woman who does not consent". Unlawful in this context, according to Barrister, Michael Arnheim means "outside of marriage"; it did not explicitly forbid rape within marriage. Therefore it was only recent interpretation that brought unconsenting sex within marriage under the same law. In short, the law had anot changed it was only being interpreted differently now. As such can this woman sue her husband?
Chiron
But from what I gather, the 1976 law specified rape as "unlawful sexual intercourse with a woman who does not consent". Unlawful in this context, according to Barrister, Michael Arnheim means "outside of marriage"; it did not explicitly forbid rape within marriage. Therefore it was only recent interpretation that brought unconsenting sex within marriage under the same law. In short, the law had anot changed it was only being interpreted differently now. As such can this woman sue her husband?
I suppose this would depend on the interpretation of the law by that particular judge.
No, since legislation cannot be retrospective.
If someone commits an act which later becomes a crime after being outlawed by the passing of a statute by Parliament, the person committing the act cannot be guilty of any crime; since at the time of the act, it was not an offence.
Similarly, if someone had committed a crime which was later made 'lawful' (say, for instance, a man has distributed cannabis in 2005; but in 2008 this becomes no longer illegal); it would not be right for that person to then become 'innocent' of the offence.
If someone commits an act which later becomes a crime after being outlawed by the passing of a statute by Parliament, the person committing the act cannot be guilty of any crime; since at the time of the act, it was not an offence.
Similarly, if someone had committed a crime which was later made 'lawful' (say, for instance, a man has distributed cannabis in 2005; but in 2008 this becomes no longer illegal); it would not be right for that person to then become 'innocent' of the offence.
This is what I quote from "General Principals of English Law" written by P W Redmond and I N Stevens:
"Since the definition (of rape by the Sexual Offences Act 1976) requires 'unlawful sexual intercourse', a husband cannot be guilty of raping his wife, unless husband and wife are judicially separated: R v. Clarke (1949)"
Does that mean that the book is wrong?
"Since the definition (of rape by the Sexual Offences Act 1976) requires 'unlawful sexual intercourse', a husband cannot be guilty of raping his wife, unless husband and wife are judicially separated: R v. Clarke (1949)"
Does that mean that the book is wrong?
I disagree with the majority of you.
Something can be not illegal (therefore legal). i.e. self harm.
If the case is appealed and appealed, eventually it will reach the House of Lords. When it does so, the house of Lords, who have the ability to make new law, can then say that the offence (self harm say) is not in the public's best interest, and thus find the accused guilty.
However, inmost instances, I would agree with the above posters.
Something can be not illegal (therefore legal). i.e. self harm.
If the case is appealed and appealed, eventually it will reach the House of Lords. When it does so, the house of Lords, who have the ability to make new law, can then say that the offence (self harm say) is not in the public's best interest, and thus find the accused guilty.
However, inmost instances, I would agree with the above posters.
Lauren18
Similarly, if someone had committed a crime which was later made 'lawful' (say, for instance, a man has distributed cannabis in 2005; but in 2008 this becomes no longer illegal); it would not be right for that person to then become 'innocent' of the offence.
Similarly, if someone had committed a crime which was later made 'lawful' (say, for instance, a man has distributed cannabis in 2005; but in 2008 this becomes no longer illegal); it would not be right for that person to then become 'innocent' of the offence.
Do you really believe that?
Society no longer believes what he has done is wrong, so why keep him imprisoned?
If Saddam had imprisoned people for being...Kurds, say...would it be right for us to set them free???
Although I accept it's not straightforward, and that it is hard to argue one way and not he other, the British legal system does act on the assumption that it is worse to imprison one innocent man than set free 10 guilty men.,..
Death
This is what I quote from "General Principals of English Law" written by P W Redmond and I N Stevens:
"Since the definition (of rape by the Sexual Offences Act 1976) requires 'unlawful sexual intercourse', a husband cannot be guilty of raping his wife, unless husband and wife are judicially separated: R v. Clarke (1949)"
Does that mean that the book is wrong?
"Since the definition (of rape by the Sexual Offences Act 1976) requires 'unlawful sexual intercourse', a husband cannot be guilty of raping his wife, unless husband and wife are judicially separated: R v. Clarke (1949)"
Does that mean that the book is wrong?
That was the case I believe, but in the case of R v R (1992) HoL it was held that a husband could be found guilty of raping his wife...
I think they can make special provisions in new legislation if they want it to apply retrospectively, but otherwise no you can't be guilty of the offence.
Chiron
Supposing a person commits a crime by an act which they know to be wrong; can they be convicted later on if they committed the crime before the offence became illegal? An example is Marital Rape. As far as I know this was formally outlawed in 1976. Supposing in 1972, a man has sexual intercourse with his wife under duress, and against her will. Can she then sue her husband in 1978 for a crime committed in 1972, when this was arguably legal - or at least the law made no clear decleration that it was illegal?
You could rape your wife before 1976?????????!!! Thats just f*cked up!!!
Phonicsdude
Although I accept it's not straightforward, and that it is hard to argue one way and not he other, the British legal system does act on the assumption that it is worse to imprison one innocent man than set free 10 guilty men.,..
The Northern Irish internment camps of the 70s and Belmarsh prison would beg to differ.
paulfg
My understanding is that you can be cuaght out by legislation that is 'retrospective'.
When judges 'interpret' legislation they are stating what the law has always been, a pratical consequence of this is that they are making retrospective law.
When judges 'interpret' legislation they are stating what the law has always been, a pratical consequence of this is that they are making retrospective law.
It could be viewed as that, however interpretation goes only to the scope of an offence and not the actual existence of the offence per se. As the offence already exists there is technically no retrospectivity, however I understand your point given the evolution of the criminal law via common law decisions. There the courts are simply recognising the 'true' nature of the offence in the prevailing social and cultural context, something they justify by saying that the defendant should have regulated their conduct according to such standards, those being the standards of the average person and the standards that the average person would expect the courts to uphold.
I don't think anyone has mentioned the fact that most human rights codes forbid retrospective legislation anyway.
Chiron
Supposing a person commits a crime by an act which they know to be wrong; can they be convicted later on if they committed the crime before the offence became illegal? An example is Marital Rape. As far as I know this was formally outlawed in 1976. Supposing in 1972, a man has sexual intercourse with his wife under duress, and against her will. Can she then sue her husband in 1978 for a crime committed in 1972, when this was arguably legal - or at least the law made no clear decleration that it was illegal?
You don't sue for a crime, you sue for a tort, and in tort there is no notion of illegality as such. However, looking to tort does provide numerous examples of the courts avoiding retrospective liability, but mainly based on the state of the respondant's knowledge either actual or constructive. In other cases the courts are quite willing to impose liability for things that prevoiusly no-one ever thought were tortious - McGhee, Fairchild etc. There the courts practically created a new head of liability - perhaps analagous to a new common-law crime?
I think it was Denning who said that you don't look at 1952 through 1956's spectacles.
Phonicsdude
Do you really believe that?
Society no longer believes what he has done is wrong, so why keep him imprisoned?
If Saddam had imprisoned people for being...Kurds, say...would it be right for us to set them free???
Although I accept it's not straightforward, and that it is hard to argue one way and not he other, the British legal system does act on the assumption that it is worse to imprison one innocent man than set free 10 guilty men.,..
Society no longer believes what he has done is wrong, so why keep him imprisoned?
If Saddam had imprisoned people for being...Kurds, say...would it be right for us to set them free???
Although I accept it's not straightforward, and that it is hard to argue one way and not he other, the British legal system does act on the assumption that it is worse to imprison one innocent man than set free 10 guilty men.,..
I understand what you're saying, but I stand by what I said!
1. Just because something which was once illegal is later decriminalised (i.e. cannabis example) does not mean that society then 'believes what he has done is not 'wrong' - since legislation very often does *not* reflect the views of society
- BUT, even if society did believe that distribution of cannabis was no longer 'wrong'; this still does not mean that someone should be released automatically from imprisonment. Perhaps if the convicted were to appeal his case he may be more likely to secure a favourable result because societal views have changed; but the views of society are not in themselves an adequate basis for deciding what is 'right' and what is 'wrong'
2. Your example about Saddam and Kurds is not really relevant since you are not just talking about the domestic laws of one state - like I was in my cannabis example - but about international intervention; which is a different matter. Of course, it would be idealistically and humanitarianly 'right' for another state to intervene in Iraq and set the Kurds free; but this is not the same kind of freedom which I suggested in relation to the cannabis distributor. In my example I was talking about freedom from an offence which was once wrong itself; but you are talking about freedom from IMPRISONMENT which is in itself wrong, on the part of Saddam - not wrong on the part of the imprisoned Kurds.
3. I agree with the basic principle that it is 'worse' to imprison one innocent man then ten 'guilty' men; but that again is not really appropriate to the issue I raised - since you are talking about pure innocence and guilt; whereas an imprisoned cannabis distributor was undoubtedly guilty of the offence at the time he was imprisoned; even if the offence itself ceases to exist in the future. So the principle above would not apply to the convicted cannabis distributor, since at the time of the distribution he WAS guilty of an offence; despite any future changes in legislation.
I love issues like this - there are so many aspects to cover; and of course this is only my opinion and yours is just as valid - debates are great! x
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