The rule of law is the absolute doctrine of justice, which encapsulates the UK’s uncodified constitution. It limits the powers of the government and of the Crown, in order to ensure that the nation’s rights and liberties are respected, therefore avoiding an arbitrary form of government in the country. The UK’s constitution is set in such manner that it requires institutions, government officials and courts to abide by the general rule of law in everything they do and every decision they make. The avid British constitutional law theorist, Sir Albert Venn Dicey was the first to discuss the concept of the rule of law, its importance and its meaning in the context of the British government. In his book, Introduction to the Study of Law of the Constitution, he set three fundamental rules on the application of law.
These are: a man can only be punished if found guilty of a breach of law at a trial before a court of the land; nobody is above the law, as he states – ‘…every official from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.’- and the result of the ordinary law of the land is the constitution; This asserts that while in some written constitutions, the rights, freedoms and responsibilities of individuals are set and guaranteed under the codes of those respective constitutions, in UK these rights are set by means of the common law, which have made the constitution receptive and malleable to the past and present needs and requirements of the British nationals. To this day, the British Constitution is in constant change, in conformity with events of public concern. Due to its uncodified nature, it can easier be amended without the need for a referendum, as written constitutions require (through the doctrine of parliamentary supremacy, Parliament is fully entrusted with the enactment of new laws and with delegating power of making secondary legislation to government bodies and the judiciary). Common law plays a very important part in new secondary legislation and fair delivery of justice, through the doctrine principles of judicial precedent, where judges make sure to apply the law equally to all present cases by applying and distinguishing set in previous cases, to ensure consistency. If the present case is unique and no common law principle applies to it, the judiciary will be required to set a new principle so as to make fair judgments and decisions upon it (though this can be amended or repealed by the Parliament at any given time should they desire to do so).It is certain that Dicey’s three principles on the rule of law are very profusely followed nowadays.
However, other formal scholars of the rule of law, such as Fuller, in his book The Morality of Law (1969) and Joseph Raz, in The Rule of Law and its Virtue (1997) have asserted some additional principles of the rule of law, such as: the law must be certain and non-retrospective, there must be fair hearing by an independent judiciary, laws should be relatively stable, the courts should be easily accessible, the courts should have review powers, and the principles of natural justice must be observed. The common law is the evidence that these formal school principles of the rule of law must be followed closely and respected. In regards to equality before the law, the case of R v Mullen1 is a very good example that the government has to always abide by the laws of the land and by international laws, even when the suspect may be guilty of the alleged crime. The courts have the responsibility to scrutinise its actions, through judicial review, to make sure they always fall under the rule of law. Mullen was a British citizen who was unlawfully brought back to England from Zimbabwe, after the evidence acquired by both British and Zimbabwean security services suggested that he had planned to cause explosions that would be highly dangerous to public safety.
During his deportation and detention, he was denied access to a lawyer and was convicted to thirty years in prison. Some years later, while he himself admitted that he was subject to a fair trial and was convicted accordingly, he appealed against the unlawful deportation and the denial of his right to access a lawyer through the meaning of s. 2(1)(a) of the Criminal Appeal Act 1968 (as substituted by s. 2 of the Criminal Appeal Act 1995).2 The court of Appeal held that, while he was certainly guilty of the allegations, according to the evidence brought against him before court, the authorities had breached both Zimbabwean and international extradition law, but also some of Mullen’s fundamental human rights. The court’s decision stated: ‘It follows that, in the highly unusual circumstances of this case, notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself, this appeal must be allowed and the appellant’s conviction quashed.
‘3 This case emphasises that the scope does not justify the means and that every individual and authoritative body is equally accountable for their own unlawful acts. Cases such as R v Rimmington emphasize that law cannot be retrospective or ambiguous. R and G (the appellants) appealed against an earlier decision of court4 that dismissed their appeal against their convictions for causing public nuisance. R had posted packages to different members of the public, containing racist matters to different members of the public.
G had posted an envelope to a friend, containing salt, as a practical joke. The envelope has never reached his friend, but got damaged and leaked salt onto a post worker’s hands. The post worker panicked, believing it was anthrax and raised the alarm and called the police, therefore causing disorder in the post office. The appellants submitted that conduct which formerly established liability for the crime of public nuisance had now become the subject of express statutory provision (that is, where Parliament delineated specifically in the statute the components of the offence, the type of trial required, possible defences, and a maximum penalty for it), therefore under proper practice of justice, the defendants must now be tried and prosecuted according to the statute. There were at that time eleven Acts which included provisions for statutory nuisance of different types (environmental pollution, terrorism, noise pollution, vehicle speed exceeding etc.). However, none of these were certainly relevant to the present case. The appellants concluded that the crime of public nuisance had no legal existence and has also ceased to have any practical application.
Article 7(1) of the European Convention of Human Rights states that ‘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.’ Even according to common law, R’s conduct did not have the essential component of public nuisance, as he did not cause a common injury or disturbance to a certain community, but rather to separate individuals on separate occasions. R’s conviction was quashed. 1 2000 QB 520 CA2 Liberty’s response to the Office for Criminal Justice Reform: ‘Quashing Convictions’ (December 2006), https://www.liberty-human-rights.
org.uk/sites/default/files/quashing-convictions.pdf3 R v Mullen 1999 2379 EWCA http://www-lexisnexis-com.
ezproxy.westminster.ac.uk/uk/legal/results/enhdocview.do?docLinkInd=true=23_T26976750953=GNBFULL=0=0_T26976750955=20_T26976750956=274662=15 4 2003 EWCA Crim 3450, 2004 1 W.