What happens when UK law changes?
( mods please move this if I've posted in the wrong section 
)
I was talking with some friends the other night and the conversation drifted onto Harvey Weinsein, and the #MeToo phenomenon. It then got into points of law, and I'd be interested if anyone studying law could help me out with a genuine question.
What happens in UK law, when things previously illegal, are decriminalized, and conversely previously legal things become illegal?
Couple of examples to clarify.
There was a time when homosexuality was a criminal offense in the UK. What happened when it was decriminalized? Did those sentenced to prison get a pardon, and released? Did previous convicts get compensation?
There was a time in the UK when freedom of expression was broader, whereas as now there is speech policing for offensive, and 'hateful' opinions. Is there some kind of UK equivalent to a statute of limitations?
If he were alive today, would Enoch Powell's infamous, 'Rivers of blood' speech be considered a chargeable hate crime now? Would past public opinions of the BNP and NF, and the hard left for that matter, result in charges after a change in law.
We've seen people brought to justice many decades after their crimes were committed, but those were instances when their crimes were illegal then, as they are now.
So, what happens when UK law changes?
) I was talking with some friends the other night and the conversation drifted onto Harvey Weinsein, and the #MeToo phenomenon. It then got into points of law, and I'd be interested if anyone studying law could help me out with a genuine question.
What happens in UK law, when things previously illegal, are decriminalized, and conversely previously legal things become illegal?
Couple of examples to clarify.
There was a time when homosexuality was a criminal offense in the UK. What happened when it was decriminalized? Did those sentenced to prison get a pardon, and released? Did previous convicts get compensation?
There was a time in the UK when freedom of expression was broader, whereas as now there is speech policing for offensive, and 'hateful' opinions. Is there some kind of UK equivalent to a statute of limitations?
If he were alive today, would Enoch Powell's infamous, 'Rivers of blood' speech be considered a chargeable hate crime now? Would past public opinions of the BNP and NF, and the hard left for that matter, result in charges after a change in law.
We've seen people brought to justice many decades after their crimes were committed, but those were instances when their crimes were illegal then, as they are now.
So, what happens when UK law changes?
(edited 6 years ago)
You can't break a law if it isn't a law. So in your hate speech example it would be disregarded as there wasn't a law to break.
Historic offences are obviously quite well documented at the moment, so there's no statute of limitations as per America, if there was a law against an act at the time of committing it, you can be sentenced for it at any later date.
In regards to decriminalisation, I believe you retain the criminal record as there was a law to break, but they have issued pardons at a later date, as you say, as per homosexuality crimes. I believe they can reduce sentences, but not increase them, for example with marijuana going from class C to class B, they couldn't give you more time, because it has become "more controlled"
Historic offences are obviously quite well documented at the moment, so there's no statute of limitations as per America, if there was a law against an act at the time of committing it, you can be sentenced for it at any later date.
In regards to decriminalisation, I believe you retain the criminal record as there was a law to break, but they have issued pardons at a later date, as you say, as per homosexuality crimes. I believe they can reduce sentences, but not increase them, for example with marijuana going from class C to class B, they couldn't give you more time, because it has become "more controlled"
Original post by Tubbz
You can't break a law if it isn't a law. So in your hate speech example it would be disregarded as there wasn't a law to break.
Historic offences are obviously quite well documented at the moment, so there's no statute of limitations as per America, if there was a law against an act at the time of committing it, you can be sentenced for it at any later date.
In regards to decriminalisation, I believe you retain the criminal record as there was a law to break, but they have issued pardons at a later date, as you say, as per homosexuality crimes. I believe they can reduce sentences, but not increase them, for example with marijuana going from class C to class B, they couldn't give you more time, because it has become "more controlled"
Historic offences are obviously quite well documented at the moment, so there's no statute of limitations as per America, if there was a law against an act at the time of committing it, you can be sentenced for it at any later date.
In regards to decriminalisation, I believe you retain the criminal record as there was a law to break, but they have issued pardons at a later date, as you say, as per homosexuality crimes. I believe they can reduce sentences, but not increase them, for example with marijuana going from class C to class B, they couldn't give you more time, because it has become "more controlled"
That's pretty much what I assumed. Wasn't sure about retaining criminal records post decriminalization of offence. Thanks for the prompt response, +1
Original post by 303Pharma
That's pretty much what I assumed. Wasn't sure about retaining criminal records post decriminalization of offence. Thanks for the prompt response, +1
People convicted of the decriminalised offence previously will remain convicted unless the decriminalising statute (or another statute) explicitly provides that they will no longer be considered so. With regard to homosexuality convictions, they were given compensation and pardons because we are quite accepting of homosexuals nowadays. We essentially said that criminalising homosexuality was wrong, hence the reparations. However, not all decriminalising statutes are effected with this understanding and not all decriminalisations would result in apologetic reparations.
As for retrospective offences, they are possible but forbidden under international law. ECHR etc.
(edited 6 years ago)
There has been one notable exception to retrospectivity, but due to the subject matter everyone is kind of happy to look the other way.
People have been convicted for very old cases of marital rape- which was not a crime when the offence took place. In R v Crooks, the offence went back to 1970. Crooks appealed on the ground of retrospectivity that he would not have been prosecuted at the time, but lost his appeal and had a custodial sentence. There was a similar case called Laskey, and I believe a case in Australia with similar curcumstances.
The courts seem to make these decisions using a rationale that the offenders “knew their actions were wrong” although quite how that squares with general principles of law is beyond me.
People have been convicted for very old cases of marital rape- which was not a crime when the offence took place. In R v Crooks, the offence went back to 1970. Crooks appealed on the ground of retrospectivity that he would not have been prosecuted at the time, but lost his appeal and had a custodial sentence. There was a similar case called Laskey, and I believe a case in Australia with similar curcumstances.
The courts seem to make these decisions using a rationale that the offenders “knew their actions were wrong” although quite how that squares with general principles of law is beyond me.
Original post by Trinculo
There has been one notable exception to retrospectivity, but due to the subject matter everyone is kind of happy to look the other way.
People have been convicted for very old cases of marital rape- which was not a crime when the offence took place. In R v Crooks, the offence went back to 1970. Crooks appealed on the ground of retrospectivity that he would not have been prosecuted at the time, but lost his appeal and had a custodial sentence. There was a similar case called Laskey, and I believe a case in Australia with similar curcumstances.
The courts seem to make these decisions using a rationale that the offenders “knew their actions were wrong” although quite how that squares with general principles of law is beyond me.
People have been convicted for very old cases of marital rape- which was not a crime when the offence took place. In R v Crooks, the offence went back to 1970. Crooks appealed on the ground of retrospectivity that he would not have been prosecuted at the time, but lost his appeal and had a custodial sentence. There was a similar case called Laskey, and I believe a case in Australia with similar curcumstances.
The courts seem to make these decisions using a rationale that the offenders “knew their actions were wrong” although quite how that squares with general principles of law is beyond me.
That is quite different, though. R v R was a judicial "change of the law", but judges are understood to attempt to "ascertain" the law. There is an understanding that X is the law now, following this decision, and in fact always has been the law. Through legal fiction (with a dash of common sense), it's not retrospective criminality.
Original post by Notoriety
That is quite different, though. R v R was a judicial "change of the law", but judges are understood to attempt to "ascertain" the law. There is an understanding that X is the law now, following this decision, and in fact always has been the law. Through legal fiction (with a dash of common sense), it's not retrospective criminality.
I think “legal fiction” is certainly the right term, and I wonder what exactly has been achieved outside a small number of prosecutions and what I would see as free rein to invent methods of prosecuting historical offences. Even if it were a case of the law having always been that way- the fact remains that it was the understanding of the common law at the time and to go back and change that is to my mind a far greater usurping of justice.
Original post by Trinculo
I think “legal fiction” is certainly the right term, and I wonder what exactly has been achieved outside a small number of prosecutions and what I would see as free rein to invent methods of prosecuting historical offences. Even if it were a case of the law having always been that way- the fact remains that it was the understanding of the common law at the time and to go back and change that is to my mind a far greater usurping of justice.
True, but judges change understandings of statute-based offences when they interpret the meaning of specific provisions. Maybe they will change an interpretation within the same case: a CC appeal to the QBD or the CA/SC. Or across several cases several years apart. Nevertheless, there is not one certain law.
R v R was special in that most men were aware X was the law and could act according to that awareness. However, there is no doubt that men who did force sex on their wife deserved to be criminally liable simply for how morally repulsive their acts were. After all, criminal law is based on "offence".
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