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Can you be convicted for a crime you committed, before the offence was made illegal? watch

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    From my understanding but I'm no expert there are two different discussions here.

    1. was the act of unconsenting sexual intercourse with one wife before the 1976 act illegal, tha answer is No. It was before the law determined it to be illegal therefore one could erape' one's wife as much as he liked, however socially culturally etc unacceptable it is.

    2.Can the wife sue her husband. the answer is yes. The act of unconsenting sexual intercourse will most likely of caused harm, ie mental distress, trauma, permanent insomnia etc, therefore she can start a civil case appealing for damages to be paid to her
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    Some confusion here regarding the marital rape issue.

    For two hundred years it was always considered impossible for a man to rape his wife on the basis that she consented to have sex when they were married and she could not retract this.

    This common law rule has been adapted over the years, for example it became only applicable so long as the couple were actually living together.

    The 1976 Act states 'unlawful sexual intercourse with a women....'and the unlawful was thought to mean outside of marriage thereby bringing the common law rule into the statute.

    As someone has already pointed out in the case of R v R 1992 the H of L decided that marriage wasn't an exemption from rape in any situation.

    Was this a change in the law?

    Well strictly speaking, no because it was decided that the word 'unlawful' didn't give legislative authority to the common law rule but merely allowed for it to exist.

    As for the common law rule it was decided that it had no authority and so wasn't good law but most importantly it never was.

    Ignorance of the law is not an excuse and the fact that the courts didn't realise what the law was doesn't excuse you.

    As for the actual question 'Can legislation be retrospective?' Yes; it has been but I know of no examples of criminal law being retrospective. Maybe someone else does? There are obviously Human Rights issues with retrospective legislation so it is not something that is likely to happen too often.

    z
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    (Original post by zaf1986)
    Society has no authority. The judiciary decides whether he/she is still a criminal or not.
    And the judiciary decides whther he is a criminal or not based on what is in the best interests of society...
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    (Original post by Phonicsdude)
    And the judiciary decides whther he is a criminal or not based on what is in the best interests of society...
    But what is viewed by the judiciary to be in the best interests of society may not fit with the general public's view of what is 'right' or 'wrong'...
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    (Original post by Lauren18)
    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'
    the views of society and what are in its best interest are two entirely different things. The former has a political edge, whereas the latter will remain fairly constant over time. the problem with involving politics with the House of Lords (and the courts in general), is that two judges of differing political persuasion will reach two different opinions, in a case where if politics was ignored, and the judges examined the evidence coldly, then perhaps they would agree.
    Can judges make decisions on a case regardless of their political opinions? Who knows. Not I.
    Should they be expected to?
    Yes. I dont believe that anything other than society's (or in some cases the individual's) best interests should be taken into consideration when reaching a verdict.


    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.
    I retract that, because my argument comes down to "Is it right to impose our beliefs on another country/culture" , which is an entirely different debate!


    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.
    Im not saying that we should automatically release hordes of criminals. But they should all be open to review. The judiciary has to accept that if it makes a mistake, and has for numerous years been imposing a law which is unfair, all those convicted under it should be allowed the chance to appeal.
    this should NOT extend to instances where law changes to reflect society or technology (e.g. new laws brought in regarding the internet or road use...).


    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

    sorry if some of this post is rambly and difficult to decipher, but I am quite tired...but I cant resist a good debate!

    final thought: What is the purpose of the law? To protect the people in its jurisdiciton from any physical, emotional or financial harm. A law should always act in the best interest of society, and disregard any political influence...

    All this relies on the integrity of judges. I have great faith in them..but I do want to ensure there is some constraint on their power.

    EVERYTHING boild down to my baby...constitutional law
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    I really cant be bothered to read all those long posts. Anyway, IMO there are some laws which are natural laws, it need not be written down to be made law since its obv harm to society means they are enforced through common sense on day one (ie. Murder). There are some man made laws which although not part of natural law directly they go eventually for some good (like no speeding). Im pretty darn sure that retro-active laws are allowed if the laws were present and known even if it wasnt written down, however for the majority of laws, they can not be retro-active. Laws must not necessarily be written down, just known. A society would revolt against retro active laws through its unfair nature if the ppl had NO idea that during the time they did an act in the past, it was illegal.
    These ideas are based on the jurisprudence i have read.
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    To protect the people in its jurisdiciton from any physical, emotional or financial harm. A law should always act in the best interest of society, and disregard any political influence...
    Its the same as politicians, who are supposed to represent soceity but mostly don't. The judges decide on the public interest, not the public themselves.
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    You can't unless it's a crime against humanity (Nuremberg Trials)
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    (Original post by Phonicsdude)
    And the judiciary decides whther he is a criminal or not based on what is in the best interests of society...

    Not strictly true. The Judiciary make decisions on the basis of the law even if it isn't in the best interests of society however as Jurisprudence pointed out earlier a judge will interpret the law according to current social values.

    Arguably, current social values aren't necessarily in the best interests of society.

    It is also important to realise that the judiciary generally don't make decisions on the basis of public opinion as that is too fickle to satisfy the need for certainty in the law. Beneath public opinion however there are underlying trends in social values that do change over time.

    Unfortunately, or maybe fortunately, the legislature are perhaps more influenced by public opinion.
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    (Original post by jurisprudence)

    I don't think anyone has mentioned the fact that most human rights codes forbid retrospective legislation anyway.

    YES, legislation can indeed be retrospective, BUT it can only be so if it explicitiy states that this is the intention in the actual Act eg War Compensation Act nd the Burmah Oil v Lord Advocate case.

    It is also true that the HRA does forbid retrospective criminal legislation, however, if the government decided to pass some Act which was retrospective, then they could, and the relevent section of the HRA would be repealed. Of course then one gets into the whole implied/express repeal and 'constitituional Acts of Parliament' arguments and the metric martyrs case.
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    (Original post by tkfmbp)
    YES, legislation can indeed be retrospective, BUT it can only be so if it explicitiy states that this is the intention in the actual Act eg War Compensation Act nd the Burmah Oil v Lord Advocate case.

    It is also true that the HRA does forbid retrospective criminal legislation, however, if the government decided to pass some Act which was retrospective, then they could, and the relevent section of the HRA would be repealed. Of course then one gets into the whole implied/express repeal and 'constitituional Acts of Parliament' arguments and the metric martyrs case.
    Well yes that is the case, however what you describe is the means by which any piece of primary legislation can opt out of domestic human rights requirements... It is applicable to human rights derogations generally and not just for retrospective legislation - you could say the same about any human right.
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    (Original post by tkfmbp)
    ... and the metric martyrs case.
    Anyone got a citation for that?
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    On topic - No, I don’t think so. I have tried and failed to recall a criminal case where someone was found guilty of a crime prior to the action being made illegal. It would not make much sense, with the passing of an Act you might make large sections of the population into criminals! Take the cannabis example and turn it around. Or better, what about something like cocaine which like cannabis, was legal at one point in history? I understand that Queen Victoria was partial to some of the happy powder (although i am not certain of that and mention it as an anecdote).

    The point about rape in marriage is a strange one. A hangover from the days when woman were considered chattel. It was not just rape that was considered "a private affair between married couples", a man was excused from answering to the Law for any number of abuses including GBH, just as long as he kept it in the family. Wife has a black eye, split lip and cracked ribs? well she shouldn’t answer back when her husband is drunk/in a bad mood/ in the same room. I’m amazed that this was not remedied in Law until 1976.
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    Surely retrospective culpability is impossible due to the lack of any malicious intention? Although I suppose it is possible to appeal to ideas of natural law to get around this, I think this defence would only apply to the really obvious and serious crimes which are already illegal, and not to anything which is likely to become illegal in the future. And that's before the philosophical difficulties with natural law are even considered.
    Interpretative judicial rulings can only ever set future precedent, surely?
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    (Original post by 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 one of the presumptions of the court is that an piece of law cannot be applied retrospectively.
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    I appologize for any possible repetion but i don't have time to read all of the previous posts.

    "Can you be convicted for a crime you committed, before the offence was made illegal? "
    If the law doesn't says that something is a criminal act then there is no crime and offence and so on.

    "Can a legislation be retrospective?"
    Certainly, but it absolutely has to state that the rules apply to the past. Otherwise, all laws have ex nunc effect(i.e. for the fututre).
    There are two types of retrospective effect of a law:
    1.absolute: this the so called "revision", it revises all past legal realtions of a kind
    2. relative: it revises legal relations, which have started in the past but are not finished. The past results remain unchaged but the process and after-effects will be determined by the new law.

    Note: I appologize for any mistakes in the juridical terminilogy but I study BG law which is a part of the continental law.
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    I think the war crimes acts are an example of retrospective legislation - examples of people being brought before the courts for crimes committed during ww2 etc but this is a rare example of retrospective stuff.

    On the judiciary - theoretically their job is to interpret and apply - though many would argue they actually make the law - see for example Lord Dennings interesting interpretations of property law! A widely referred to book on this topic is "the politics of the judiciary" by JAG Griffiths (?) which is both interesting and accessible.
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    (Original post by jurisprudence)
    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.
    Yes, it was Denning in Roe v. Minister of Health.

    As to McGhee, Fairchild, etc., I don't think it was really the creation of a new head of liability. The courts lessened the level of causation that had to be proven by the claimant: no longer was it necessary for it to be on the balance of probabilities i.e. more than 50% likelihood that D caused in jury, but either a material contribution to the risk/material contribution to the injury. In that sense then this was not really the creation of a new head of liability at all. You also have to look at the cases in the context of making employers liable for damage caused to employees who may have no other recourse.
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    (Original post by Phonicsdude)
    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.
    is that illegal???

    good job the law isn't retrospective.

    i still think rape=rape no matter whether they are married, it's still wrong. still our legal system is crap when it comes to rape and convictions.
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    (Original post by ForeverDecember)
    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...
    To answer the first question: No - no person can be found guilty of a crime that was not a crime at the time it was commited. Basically - legislation cannot act retrospectively. The principle is laid down in the the article 7 of the convention on human rights.

    However, in R v R - The defendant was properly tried for rape because his rights under art 7 had not been breached by prosecution for an offence committed before 1991 (which was the point noted in art. 7(2)). Article 7 would not prevent punishment for acts which were criminal according to the principles recognised by civilised nations, pursuant to art 7(2). Common law principles and statutory offences prior to 1991 ensured that it was possible for a husband to be punished for any use of violence or force to enable him to have sexual intercourse.


    Towards the end of the judgment of the Court of Appeal, Lord Lane C.J. said,
    "The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it."

    The House of Lords agreed and held - in short - that this particular development in the laws on marital rape was entirely forseeable, and the conviction was upheld.
 
 
 
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