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“[A] rule of simple fairness, a rule which any child would understand” is how the late great Thomas Bingham described Article 7 of the European Convention on Human Rights (ECHR). In short, Article 7 enshrines the maxim “no punishment without law.” In long form, it reads as follows:
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 when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
There’s a lot to take in here. Starting with the first paragraph, at its core lies a very simple idea: no one should be banged up for doing something which wasn’t a crime at the time they acted. If I do something which isn’t a crime on Tuesday, I don’t expect to be imprisoned for it thanks to a new law introduced on Wednesday. Article 7(1) adds that no one should be punished more severely than they would have been under the old law either.
Article 7 is also intimately related with what has become known as the ‘principle of legality'. This basically means that laws must be precisely worded so that you know whether what you're doing is right or wrong. In the words of the European Court of Human Rights (ECtHR) in Steel and Others v. the United Kingdom (1988):
[laws must] be sufficiently precise to allow the citizen … to foresee, to a degree that is reasonable in all circumstances, the consequences which a given action may entail.
There is a notable exception to Article 7(1). The reader will have noticed that there is a second paragraph which reads that the first has no effect where conduct was criminal according to “general principles of law recognised by civilised nations.” Leaving the ostentatious second half of the sentence alone, the first part was designed to ensure that those who committed war crimes and crimes against humanity during World War II could not escape liability just because the crimes weren’t present in their own legal systems at the time.
As an aside, it is worth noting that in a broad sense the principles enshrined under Article 7 were recognised under the common law of the United Kingdom – that is, our case-law – some time before the ECtHR began pronouncing on the point. In fact, British lawyers played a huge role in creating the Convention in the first place and we were also the first country to officially sign up to it. In fact, it was our own Winston Churchill who suggested drafting a European ‘Charter of Human Rights.’ This was made clear in a fantastic sketch titled ‘what has the ECHR ever done for us?’ starring Sir Patrick Stewart and it is something which Churchill’s latest successor David Cameron should reflect on before putting forward half-baked suggestions about revoking our Human Rights Act and alluding to us leaving the Council of Europe altogether.
Origins aside, the ECHR provision continues to have an impact and help develop our understanding of the principles it enshrines at home. In Dallas v. United Kingdom (2016) a juror had gone online to look up the defendant she was trying. She’d found out that he was previously acquitted of rape and told her fellow jurors, who informed the judge. After she was prosecuted she appealed all the way to the ECtHR who found that there was no violation of Article 7, stating:
[I]t must be quite evident to any juror that deliberately introducing extraneous evidence into the jury room contrary to an order of the trial judge amounts to intending to commit an act that at the very least carries a real risk of being prejudicial to the administration of justice.
This reinforces the fact that Article 7 cannot be relied upon where the law was clear cut and should have been obvious. Similarly, in CR v. United Kingdom (1995) the applicant sought to rely on Article 7 after he was found guilty of raping his wife. Shockingly, marital rape until that point was not explicitly outlawed. However, the ECtHR, in a victory for common sense, found that it must have been obvious to the applicant that the law would evolve to criminalise marital rape alongside every other form of rape. As such, they held that Article 7 permits the gradual evolution of the law, so long as it can be reasonably foreseen.
One of the most recent, but easily forgotten, uses made of Article 7 was by Adam Wagner in the celebrated R v. Jogee [2016] decision. The case concerned joint criminal enterprise (JCE) liability. Our Supreme Court overturned 30 years of case-law through which a rule had developed meaning that where A pulled out a knife and murdered C, his friend, B, could be convicted of murder where there was evidence that he foresaw that A had a knife and might use it. This set the bar much lower than specific intention to kill or cause grievous bodily harm, which is usually required for murder. It also made it really difficult to know whether or not you might be prosecuted.
The Supreme Court did away with the rule, finding that foresight on the part of B was only evidence which might prove intention and not an outright substitute for it. In his argument for Mr Jogee, Adam Wagner drew on Article 7 to criticise the use of JCE to cast the net widely over all those involved, however loosely, in violent encounters. Pertinently, he asserted “what does it mean to withdraw from something you don’t know is happening?”
It is this sentiment that I leave the reader with. It strikes at the heart of the principle of legality and Article 7 of the ECHR. How can you possibly avoid criminality if you don’t know what you’re about to do is criminal – either on the facts, or in terms of the law?