The Principle of Legality Its Relevance and Observance in Criminal Law

The principle of legality in its most basic acceptance Is the concept in criminal law that every criminal statute should be published in a given jurisdiction. It suggests the need for all laws to be reduced into written form. This principle is founded on the legal Maxim of 'nulla crimen, nulla poena sine lege' which literally interpreted to mean 'No crime without laws'. This connotes that without any previous criminal law, conduct cannot come within the definition of a crime. This Maxim is further north of the Maxim of 'nulla poena sine lege' which means 'no punishment without a previous penal law'. This principle states that an offence must be clearly defined in the law. Since the law can be either written or unwritten thus principle implies the requirement of law to be made accessible and predictable in such a way that any provision of criminal law should be made easily interpretable such that the common man knows that which would make him criminally liable.

Legality also implies the need for laws not to have retrospective effects as to its very essence and application. This infers that All laws should be applied based on that which is in force as at the time the offence is committed and the statutory imposition of punishment where guilt is determined should not be in excess of what is prescribed by the criminal law of that jurisdiction. The purpose of the principle of legality is to prevent a person from being wrongfully charged with or punished for a crime. It tends toward the idea that no person, irrespective of what is their nationality, race, age, gender or class can be convicted of a crime without a fair trial. Another connotation is that a person cannot be charged with s crime if it doesn't constitute a criminal offence when the crime was committed.

The principle of legality can be said to be a yardstick to measure the civility of a country. The principle of legality has thus gained acceptance in many nations of the world and has been enshrined in the constitution hins of these nations. International laws and conventions aimed at the protection of human rights also support the principle of legality.

A Brief History

The idea of legality in criminal law appeared in the 17th century, being promoted by the illuminism representatives as Beccaria, Voltaire, Rousseau, and Diderot, and was enshrined for the first time in the Prussian Penal Code. It also was mentioned by the Independence Declaration of the United States (US 1776) and Declaration of the Rights of Man and Citizen, France (1789). After the second world war, many states agreed to adopt The Charter of the United Nations, in which is enshrined as a purpose to achieve international cooperation in order to solve problems of an economic, social, cultural, or humanitarian character, and to promote and encourage respect for human rights and for fundamental freedoms for all. Three years later, the Universal Declaration of Human Rights (1948) was proclaimed by the United Nations General Assembly, Paris 10 December 1948. According to article 11, ‘No one shall be held guilty of any penal offence on account of any or omissions which did not constitute a penal offence, under national or international law, at the time when it was committed, Nor shall a heavier penalty be imposed that the one that was applicable at the time the penal offence was committed.’ Later, the United Nations adopted the International Covenant on Civil and Political Rights (1966) which provides in Article 15 ‘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 when the criminal offence was committed. If subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby’. Besides the worldwide international treaties, regional conventions on human rights protection were adopted.

One of the most important international treaties in this area was the Convention for the protection of Human Rights and Fundamental Freedoms (1950). This was the first convention to give effect to most of the rights enshrined in the Universal Declaration of Human Rights and make them binding. In this Convention, stated in Article 7 ‘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.’ Conventions on human rights protection with similar provisions were adopted in/or African Continents. For instance, in American Convention on Human Rights (OAS), Article 9 states: ‘Freedom from Ex Post Facto Laws’ it is stated that No one shall be convicted of any act or omission that did not constitute a criminal offence, under the applicable law, at the time. it was committed. A heavier penalty shall not be imposed that the one that was applicable at the time the criminal offence was committed. If subsequent to the commission of the offence the provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom. In the African (BANJUL) Charter on Human Rights and Peoplesʹ Rights (OAU 1981), Article 7 paragraph 2, provides, ‘No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflected for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender’.

The Relationship Between the Rule of Law and the Principle of Legality

It is required for any law that the government be conducted in accordance with the law and in pursuance of the principle of legality.

The principle of legality states that the law should be clear, ascertainable and non-retrospective. ‘No one shall be held guilty of any criminal offence, which did not constitute a criminal offence at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time’. This is set out in Article 7 of the European Convention on Human Rights (ECHR), it is not only important for it to be clear for individuals as to where the law stands to protect them, but it is also important for there to be legal authority andor action for the acts of government. ‘The Principle of Legality requires that the organs of the state operate through law’ With a majority in Parliament it is very possible for a Government to grant excessive powers to the Executive. This was demonstrated in A v Secretary of State for the Home Department, whereby indefinite detention of suspected terrorists was granted and then later revoked by the courts, and also being found to be in breach of Articles 4 and 5 of the ECHR. Bingham argued that there must not be excessive discretion given to the state, supporting Article 7 of ECHR, stating that the powers given to the state are defined in law and must not be exceeded. This element of the constitution along with the principle of legality allows individuals to use the constitutional principles to challenge state authority. Ahmed and Others v HM Treasury demonstrated how it is possible for a government to use such broad powers with such little evidence, and the Supreme Court held that the Treasury extended its powers unnecessarily.

Albert Venn Dicey's Rule of Law is constituted of three main principles:

• No man is punishable except for a distinct breach of the law established in the ordinary legal manner before the ordinary court
• No man is above the law.
• General principles of the constitution and fundamental rights are the result of judicial decisions brought before the courts.

Entick v Carrington is a landmark case for showing Dicey's principle in practice. The officers entering the house had no legality to do so, as the order had been given by people without such power. This not only breaks the rule of law but also raised issues relating to the separation of powers. In Dicey's second principle he states that no men should be above the law, as previously explained in R v Chaytor and Others, all members of society should be subjected to the law. When previously looking at the principle of legality it was apparent that it is not always clear and consistent. It can also be argued that the Rule of Law implications is not always clean-cut. In 2008 the House of Lords disagreed with the Divisional Court in R (Corner House Research) v Director of SFO holding that the Directors decided to drop an investigation into charges of bribery against Saudi Arabia. Arguably the Rule of Law could be seen to be too lenient and too subjective, allowing judges to choose when to implement the principle, therefore making it far less of a ‘rule’ but more towards ‘guidance’.

The Relevance of the Principle of Legality in Criminal Law

The guidance of any society as to the operation of law and proper application of laid down laws in the criminal purview would require strict compliance to the principles of legality. The aim of legality is seated in the need for society to follow the basic concepts that guide legality. Among these components are

1. Nullum crimen sine lege; nulla poena sine lege

This rule means that only the law can define a crime and describe a penalty, and, mainly, is viewed as an act adopted by the legislator of any state. Anyway, the concept of ‘law’ refers to written as well as unwritten law and implies qualitative requirements, especially those of accessibility and foreseeability. The accessibility requires that any person must have the possibility to be informed about the existing criminal laws, which includes the obligation of the state to make it public in any way.

2. The need for laws to be clearly defined

According to this principle, an offence must be clearly defined in the law and this must be foreseeable for any person. The requirement is satisfied where a person can know the wording of the relevant provisions and, if need be, with the assistance of the courts' interpretation of it, what act or omission will make him criminally liable. Taking an example of the crime of terrorism, When defining offences of a terrorist nature, the principle of legality requires that a necessary distinction be made between such offences and ordinary offences so that every individual and also the criminal judge has sufficient legal elements to know whether an action is penalized under one or the other offence. This is especially important with regard to terrorist offences because they merit harsher prison sentences, and ancillary penalties and disqualifications with major effects on the exercise of other fundamental rights are usually established.

3. Conviction can only be made based on existing laws

This rule states that no one can be convicted for an act or omission that did not constitute an offence at the time it was committed. The fundament of this rule is that criminal law must prevent committing the criminal offence, before fighting against them. According to this principle, it is prohibited to apply retrospectively the criminal law to an accused's disadvantage. In lieu of the European Court case of Veber v Estonia, Following this principle, enshrined in Article 7 of the European Convention of Human Rights, in a case, the European Court concluded that there was a violation of this article in which the criminal act was a continuing offence. In this case, the European Court found that: ‘The applicant was convicted under Article 148-1 & 7 of the Criminal Code, as worded since 13 January 1995, of tax offences which were committed in the period from 1993 to 1996. It observes that the application of the criminal law of 13 January 1995 to subsequent acts is not at issue in the instant case. The question to be determined is whether the extension of the law to acts committed prior to that date infringed the guarantee set forth in Article 7 of the Convention. The court also, notes that, according to the text of Article 148-1 of the Criminal Code before its amendment in 1995, a person could be held criminally liable for tax evasion only if an administrative penalty had been imposed on him or her a similar offence. The condition was thus an element of the offence of tax evasion without which a criminal conviction could not follow. It further observes that a considerable number of acts of which the applicant was convicted took place exclusively within the period prior to January 1995. The sentence imposed on the applicant ’ a suspended term of three years and six months imprisonment ' took into account acts committed both before and after January 1995. In these circumstances, the court finds that the domestic courts applied the 1995 amendment to the law retrospectively to behaviour which did not previously constitute a criminal offence.

Application in the Nigerian context

In the Nigerian context, the principle of legality is adequately provided for by various statutory provisions which include the Constitution of the federal republic of Nigeria 1999 (as amended) and the provisions of our criminal codes and acts. The provisions which ensure compliance with the principle include S. 36(5) CFRN 1999 which states:

‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.’

• Furthermore, S. 36(8) CFRN 1999 provides: ‘No person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed’.
• In the same vein, S. 36(12) enshrined the basis of the fundamental rule contained in the principle of legality that ‘a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law’.
• we may also see the provision of S. 11 of the Criminal Code. It states: ‘A person shall not be punished for doing or omitting to do an act unless the act or omission constituting an offence under the law in force when it occurred.'

Further provisions have been made by virtue of sec 4(9) prohibiting the legislature from making laws that are retrospective in their effect.

It should be apparent that the principle is concerned largely with the fundamental requirement of the form i.e. the substantive provisions or content of penal statutes. It is also concerned with processes, application and enforcement of the law in the administration of the criminal justice system. The principle of legality cut across both the substantive aspect of law and its procedural aspect.

By virtue of active statutes and provisions made by law to guide the process of administration of criminal justice see it's an observance in the Nigerian context.

Today, the principle of legality simply translates into a number of rules or codes of conduct for legislators in particular and law enforcement agents, in general, who are expected to follow. For emphasis, this rule can be broken down as a man or woman may only be punished for breach of the law and nothing else i.e. the citizen must know in advance what sort of conduct is required of him and what type of conduct the law prohibits. Therefore, judges can only punish and prosecutors can only prosecute within and not without the law. Hence, there must be no trial or punishment by analogy i.e. conduct does not become triable or punishable in state A because the same is culpable or triable in state C. Thus, the legal principle nulla poena sine lege (no punishment without a law). A major criticism against the decision in Shaw v. DPP was that the judges arrogated to themselves the power to make criminal, acts which were not prohibited by the state or any written law.

Going by the logic in this principle and the provision of s.36 (12), one could come to the conclusion that a person would not be punished under a repealed law. If however, as was rightly held by the Supreme Court in Adonike v. The State (2015) LPELR-24281 (SC), where there is an extant law that repealed the former law, then an accused can be tried under the repealed law.

The rule further requires that the criminal law must be certain or easily ascertainable. Consequently, it must be couched in a general language that a layman can comprehend or understand without being too vague or broad to make sense. Thus, the legal principle nulla poena sine lege certa (there is to be no punishment without definite law). In Asake v. The Nigerian Army (2006) LPELR-5427 (CA), the court held that the act of borrowing money which was not expressly forbidden by Section 71 of the Nigerian Army Act and any law was not a crime. In lending his forensic eloquence to this principle, Stephen James Fitzjames said in his book ‘A History of English Criminal Law’ that:

A man may disbelieve in God, heaven, and hell; he may care little for mankind, or society, or for the nation to which he belongs ‘let him at least be plainly told what are the acts which will stamp him with infamy, hold him up to public execration and bring him to the gallows, gaol, or the lash.’

Perhaps the most important influence of the principle of legality is found in the prohibition of ex post facto or retroactive laws. Thus, in Chief Olabode George v. FRN (2013) LPELR-21567 (SC), the appellants were alleged to have exceeded the limit set to their authority to award contracts and contrived to bring the contracts within their limits by splitting them while so inflicting their prices. The appellant contended however that contract splitting which formed the basis of the offences charged under the Public Procurement Act 2007 was unknown at the material time. The Supreme Court in upturning the decisions of the two lower courts affirmed the trite principle of that was enunciated in Aoko v. Fabgemi (1961) 1 All NLR pg. 400. a and supported by Section 36 (8) of the CFRN that a person cannot be punished for an act which was not considered an offence at the time he committed the act. In giving the lead judgement on the case supra, Fabiyi JSC said:

‘The law (the Public Procurement Act 2007) was not made with the retrospective effect it could not have been so in the face of the clear provision of section 36(8) of the CFRN.’

The principle of legality represents ideal goals in the administration of criminal justice. The law must be written, it must not be vague or ambiguous. In ACLU v Attorney General Reno, a law of the American Government against indecency (Communication Decency Act). ACLU challenged successfully the law as being too broad and vague; that adults have every right to access whatever they want. The court held that the law should be redrafted in a clearer way.