The right not to be punished for something that wasn’t against the law when you did it is protected by Article 7 of the Human Rights Act.

How might this right be relevant to my life?

Some examples of when this right might be at risk include:

Can my right not to be punished for something that wasn't against the law when I did it be restricted by a public official?

No. Our right not to be punished for something that wasn't against the law when we did it is an absolute right.

This means this right can never be limited or restricted by a public official in any way. Any restrictions on this right would not be lawful.

However, the Human Rights Act does make an exception for acts that are against “the guiding principles of law recognised by civilised nations” even if they were not against the law in the country they took place at the time.  This means that war crimes and crimes against humanity can still be prosecuted.

What duties do public officials have?

To respect your right: 

This means that public officials (including police, courts and tribunals) must not deliberately punish you for something that wasn’t against the law when you did it. They must also avoid giving you a more severe penalty for a crime you did commit than was available at the time you did it. 

To protect your right: 

Public officials must take reasonable steps to protect your right not to be punished for something that wasn’t against the law when you did it if they know, or should know, that it is at risk.

To fulfil your right: 

This means that there must be an investigation when this right has been breached to determine what went wrong and ensure it doesn’t happen again.

Rights in Action: Imagine...

Compared with other rights in the Human Rights Act, there are very few examples of when the courts have found that this right has been breached in the UK. But, the law does change sometimes and new criminal offences can be introduced. Therefore it is important to think about when this right could be relevant to you.

shallow focus photo of road signage

Imagine you are living in Scotland and out for a walk. You get to a pelican crossing where you see that a red man is showing, meaning it isn't safe for you to cross over. But, the roads are quiet and you don't see any cars coming, so you decide it is safe to cross over anyway. At the time of writing this, crossing the road when you see a red man isn't illegal in Scotland, although it isn't very safe to do it. You cross the road and go about your day.

Two weeks later, a new law is introduced saying it is now illegal for people to cross at a pelican crossing when a red man is showing. The police say they are going to look at all the CCTV from the past month to find out who has crossed a pelican crossing at a red man. They identify you as someone who has done this, and they give you a fine for it. Because you did something before it became a criminal offence, being punished for it would be a breach of your Article 7 right.

Rights in Action: Article 7 in Real Life

In 2020, the UK government wanted to introduce new legislation to ban people convicted of terrorism from being released automatically halfway through their prison term. This was in the wake of two terror attacks in London committed by men who had been released from prison early. Ministers did not want to change the length of sentences for those who were already serving prison time for terror offences, but they wanted to change the earliest point that they would be eligible for release from halfway to two-thirds through their sentence. Questions were raised about whether this change in the law could threaten prisoners’ Article 7 right not to be punished for something which wasn’t against the law when they did it.

The Counter-Terrorism and Sentencing Bill was scrutinised and ultimately the Secretary of State for Justice concluded that these changes would not breach Article 7 for people convicted of terror offences who were serving prison terms. This was because a distinction was drawn between the penalty given by independent judges, and the ‘execution’ or ‘enforcement’ of that penalty. Changing the rules about early release was considered to be about the administration of the sentence and not the sentence itself. The European Court of Human Rights supported this conclusion. The Bill was granted royal assent and became law in April 2021.