Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20166/92

S.W.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 27 June 1994)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-40). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 19-28) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 29-40) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 41-62). . . . . . . . . . . . . . . . . . . . . . . . 8

A. Complaint declared admissible

(para. 41) . . . . . . . . . . . . . . . . . . . . . . . 8

B. Point at issue

(para. 42) . . . . . . . . . . . . . . . . . . . . . . . 8

C. Article 7 of the Convention

(para. 43-62). . . . . . . . . . . . . . . . . . . . . . 8

1. General considerations

(paras. 44-49) . . . . . . . . . . . . . . . . . . 8

2. Application to the present case

(paras. 50-61) . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION

(para. 62). . . . . . . . . . . . . . . . . . . . . . . . . .11

CONCURRING OPINION OF MRS. LIDDY. . . . . . . . . . . . . . .12

DISSENTING OPINION OF MR. LOUCAIDES joined by

MM. TRECHSEL, NOWICKI and CABRAL BARRETO. . . . . . . . . . .14

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .15

APPENDIX II DECISION ON ADMISSIBILITY. . . . . . . . . . . . .16

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is S.W., a British citizen born in 1963 and

detained in HM Prison Erlstoke. He is represented by

Messrs. S.P. Groves, solicitors practising in Farnham.

3. The application is directed against the United Kingdom. The

respondent Government are represented by Mr. Huw Llewellyn as Agent,

from the Foreign and Commonwealth Office.

4. The case concerns the complaint of the applicant that he was

convicted in respect of conduct, namely the rape of his wife, which at

the relevant time allegedly did not constitute a criminal offence. It

raises issues under Article 7 of the Convention.

B. The proceedings

5. The application was introduced on 29 March 1992 and registered

on 18 June 1992.

6. On 12 October 1992, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7. The Government submitted their written observations on

29 January 1993. The applicant submitted his written observations in

reply on 31 March 1993.

8. On 28 June 1993, the Commission decided to invite the parties to

an oral hearing on the admissibility and merits.

9. At the hearing which was held on 14 January 1994, the Government

were represented by Mr. Huw Llewellyn as Agent, Mr. Alan Moses Q.C.,

Counsel and Miss Waplington and Mr. Dawson as Advisers. The

applicant was represented by Mr. Alan Tyrell Caplan Q.C., Counsel,

Mr. Robert Hill, Counsel, Mr. Purvaise Punwar, Counsel and

Mr. Simon Groves, Solicitor.

10. On 14 January 1994, the Commission declared the application

admissible.

11. The parties were then invited to submit any additional

observations on the merits of the application.

12. On 2 March 1994, the applicant submitted further observations.

13. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

H.G. SCHERMERS

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

15. The text of the Report was adopted by the Commission on

27 June 1994 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

17. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

19. The applicant married his wife in August 1987. Their relationship

was turbulent and the marriage came under great strain in 1990 with the

applicant becoming unemployed. Prior to the evening of

18 September 1990 the wife and the applicant had been sleeping

separately - for one night (according to the applicant), five nights

(according to the wife). The wife had been thinking of leaving the

applicant for some weeks and told him in the early evening of

18 September 1990. The applicant did not accept that she meant what she

said and there was a row, during which the applicant ejected his wife

from the house, bruising her arm. The police were called and following

their visit, the applicant's wife re-entered the house. Later that

same evening the applicant forcibly and violently had sexual

intercourse with his wife to the extent that he assaulted her, placed

her in fear of further violence and threatened to kill her.

20. On 19 September 1990 the applicant was charged with rape,

contrary to section 1 (1) of the Sexual Offences Act 1956, threatening

to kill, contrary to section 16 of the Offences against the Person Act

1861, and assault occasioning actual bodily harm, contrary to section

47 of the latter Act.

21. On 30 July 1990, the defendant in the case of R. v. R. had been

convicted in the Crown Court for an offence of attempted rape against

his wife. The trial judge, Owen J., had rejected a submission that the

defendant husband could not be convicted in light of the common law

principle that a husband cannot commit the offence of rape on his wife.

The principle was derived from the statement of common law of England

as given by Sir Matthew Hale in his "History of Pleas for the Crown"

published in 1736:-

"... But the husband cannot be guilty of rape committed by

himself upon his lawful wife, for by their matrimonial consent

and contract the wife hath given up herself in this kind unto her

husband, which she cannot retract ..."

22. Owen J. had ruled that the charge could go to the jury. He

commented that he found it hard to believe that it was ever the common

law that a husband was in effect entitled to beat his wife into

submission to sexual intercourse. He considered however, that there was

sufficient evidence to indicate an implied agreement to a separation

and a withdrawal of consent which would bring the case outside the

alleged marital immunity (see Relevant domestic law and practice

para. 32). He also considered that the common law recognised an

exception to the concept of marital immunity where there has been a

withdrawal of either party from cohabitation, accompanied by a clear

indication that consent to sexual intercourse had been terminated, and

that there was again sufficient evidence to indicate that this

exception applied in this case. The defendant R. then pleaded guilty

to attempted rape and assault occasioning actual bodily harm, and was

sentenced to three years' imprisonment.

23. On 14 March 1991, the Court of Appeal rejecting that applicant's

appeal in R. v R. had declared that the general principle of marital

immunity was anachronistic and an offensive common law fiction which

should no longer be applied. Even if the principle had not been

ineffective, the Court stated that where as in that case a wife had

withdrawn from cohabitation in such a way as to make it clear to the

husband that the marriage was at an end as far as she was concerned the

husband's immunity would be lost.

24. At the commencement of his trial on 16 April 1991, the present

applicant contended that -

(a) the judgment of the Court of Appeal of 14 March 1991 in the

case of R. v. R. was not binding on the trial judge in his case

insofar as it purported to change the principle that a husband

cannot rape his wife, since the Court of Appeal was bound by its

own previous decision in R. v. Steele;

(b) the decision in R. v. R., insofar as it is purported to

change the principle, infringed Article 7 para. 1 of the

Convention;

(c) although the Convention was not part of the law of England,

Article 7 para. 1 had to be incorporated into the law of the

European Community by the decision of the European Court of

Justice in R. v. Kirk (1984) ECR 2689 (at page 2718), and was

thus part of the law of England.

25. The trial judge, Rose J., assumed for the purposes of his

judgment that submissions (b) and (c) were possibly correct in

principle, but held that this case fell within the exception contained

in Article 7 para. 2 of the Convention, and he therefore rejected the

submissions.

26. On 19 April 1991 the applicant was found guilty by the jury of

all three offences. He was sentenced to five years' imprisonment for

rape, two years' imprisonment for making threats to kill and three

months' imprisonment for assault occasioning actual bodily harm.

27. The applicant lodged an appeal against conviction and sentence

in which he repeated the submissions set out in paragraphs (a) to (c)

above.

28. On 23 October 1991 the House of Lords dismissed the further

appeal by the defendant in R. v. R. and declared, inter alia, that the

common law was capable of evolving in the light of changing social,

economic and cultural developments, and that the general principle that

a husband cannot rape his wife no longer formed part of the law of

England and Wales. In these circumstances the applicant was advised by

his lawyers on 3 January 1992 that the prospects of success of his

appeal against conviction were hopeless. He, therefore, withdrew it

on 15 January 1992. His appeal against sentence was dismissed by the

Court of Appeal on 30 July 1992.

B. Relevant domestic law and practice

Common law

29. Until the case of R. v. R. the English courts, on the few

occasions when they were confronted with the issue whether directly or

indirectly, had always recognised at least some form of immunity as

attaching to a husband from any charge of rape or attempted rape by

reason of a notional or fictional consent to intercourse deemed to have

been given by the wife on marriage. The eighteenth century proposition

of Sir Matthew Hale quoted above (see para. 21) has been upheld until

recently, for example in the case of R. Kowalski (1987, 86, Cr. App.

R 339), which concerned the question of whether or not a wife had

impliedly consented to acts which if performed against her consent

would amount to an indecent assault. Ian Kennedy J. giving the

judgment of the court stated, obiter dicta:

"It is clear, well-settled and ancient law that a man cannot, as

actor, be guilty of rape upon his wife"

and he went on to say that that principle was:

"dependent upon the implied consent to sexual intercourse which

arises from the married state and which continues until that

consent is put aside by decree nisi, by a separation order or,

in certain circumstances, by a separation agreement".

30. In another example, Lord Justice O'Connor in the R. v. Roberts

case (1986 CLR 188) stated:

"The status of marriage involves that the woman has given her

consent to her husband having intercourse with her during the

subsistence of the marriage ... she cannot unilaterally withdraw

it."

31. On 20 November 1990, in R.v. J. (1991 1 AER 759),

Mr Justice Rougier upheld the general common law rule, considering :

"...there is an important general principle to be considered

here, and that is that the law, especially the criminal law,

should be clear so that a man may know where he stands in

relation to it. I am not being so fanciful as to suppose that

this defendant carefully considered the authorities and took

Counsel's advice before behaving as alleged, but the basic

principle extends a long way beyond the bounds of this case and

should operate to prevent a man being convicted by means of

decisions of the law ex post facto".

32. In its Working Paper 116 "Rape within Marriage" completed on

17 September 1990, the Law Commission stated:

"2.8 It is generally accepted that, subject to exceptions

(considered at paragraphs 2.12-2.26 below), a husband cannot be

convicted of raping his wife...Indeed there seems to be no

recorded prosecution before 1949 of a husband for raping his

wife...

"2.11 The immunity has given rise to a substantial body of law

about the particular cases in which the exemption does not apply.

The limits of this law are difficult to state with certainty.

Much of it rests on first instance decisions which have never

been comprehensively reviewed at appellate level..."

33. The Law Commission identified the following exceptions to a

husband's immunity:

- Where a court order has been made, in particular:

a. where an order of the court has been made which provides that

a wife should no longer be bound to cohabit with her husband

(Clarke 1949 33 Cr App R 216);

b. where there has been a decree of judicial separation or a

decree nisi of divorce on the ground that "between the

pronouncement of decree nisi and the obtaining of a decree

absolute a marriage subsists as a mere technicality" (O'Brien

1974 3 AER 663);

c. where a court has issued an injunction restraining the husband

from molesting the wife or the husband has given an undertaking

to the court that he will not molest her (Steele 1976 65 Cr App

R 22);

d. in the case of Roberts (1986 Crim LR 188), the Court of Appeal

found that where a non-molestation order of 2 months had been

made in favour of the wife her deemed consent to intercourse did

not revive on expiry of the order.

- where no court order has been made:

e. Lynskey J. observed, obiter, in Miller (1954 2 QB 282), that

a wife's consent would be revoked by an agreement to separate,

particularly if it contained a non-molestation clause;

f. Geoffrey Lane LJ stated , obiter, in Steele (loc. cit.) that

a separation agreement with a non-cohabitation clause would have

that effect.

34. The Law Commission noted that it was stated in Miller (loc. cit.)

and endorsed by the Court of Appeal in Steele (loc.cit) that lodging

a petition for divorce would not be sufficient.

35. The Law Commission referred also to the ruling by the trial judge

in the case of R. v. R. where an implied agreement to separate was

considered sufficient to revoke the immunity and that even in the

absence of agreement, the withdrawal from cohabitation by either party

accompanied by a clear indication that consent to sexual intercourse

had been terminated, would operate to exclude the immunity. It found

this view difficult to reconcile with previous authorities and that it

appeared substantially to extend what had previously been thought to

be the law.

36. The Law Commission made, inter alia, the provisional proposal

that "the present marital immunity be abolished in all cases" (5.2)

which would be effected by legislation.

Sexual Offences (Amendment) Act 1976

37. Section 1 (1) of the Sexual Offences (Amendment) Act 1976

provides, in so far as it is material, as follows:

"For the purposes of section 1 of the Sexual Offences Act 1956

(which relates to rape) a man commits rape if

- (a) he has unlawful sexual intercourse with a woman who at

the time of the intercourse does not consent to it..."

The position in Scotland

38. An exemption was also enjoyed by a husband in respect of rape of

his wife under the applicable law in Scotland based on Hume's "Criminal

Law of Scotland" first published in 1797.

39. In two cases (HM Advocate v. Duffy 1983 SLT 7 and H.M. Advocate

v. Paxton 1985 SLT 96), the High Court of Justiciary held that the

exemption did not apply where the parties to a marriage were no longer

cohabiting.

40. Following those cases, the High Court proceeded to hold in

S v. H.M. Advocate (1989 SLT 469) that the fiction of implied consent

and a husband's immunity from a prosecution upon a charge of rape of

his wife no longer applied and that "the only question is whether or

not as a matter of fact the wife consented to the acts complained of".

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

41. The Commission has declared admissible the applicant's complaint

that he has been convicted in respect of conduct which at the relevant

time did not constitute a criminal offence.

B. Point at issue

42. The issue to be determined is whether there has been a violation

of Article 7 (Art. 7) of the Convention.

C. Article 7 (Art. 7) of the Convention

43. Article 7 (Art. 7) of the Convention provides as relevant:

"1. 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...

2. 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."

1. General considerations

44. Article 7 para. 1 (Art. 7-1) reflects the principle, found also

in other provisions of the Convention in the context of requirements

that interferences with or restrictions in the exercise of fundamental

rights must be "in accordance with law" or "prescribed by law", that

individuals should be able to regulate their conduct with reference to

the norms prevailing in the society in which they live. That generally

entails that the law must be adequately accessible - an individual must

have an indication of the legal rules applicable in a given case - and

he must be able to foresee the consequences of his actions, in

particular, to be able to avoid incurring the sanction of the criminal

law.

45. In the context of "prescribed by law" the Court set the standard

of foreseeability to that of reasonable certainty:

"...a norm cannot be regarded as a `law' unless it is formulated

with sufficient precision to enable the citizen to regulate his

conduct: he must be able - if need be with appropriate advice -

to foresee, to a degree that is reasonable in the circumstances,

the consequences which a given action may entail. Those

consequences need not be foreseeable with absolute certainty :

experience shows this to be unattainable. Again, whilst certainty

is highly desirable, it may bring in its train excessive rigidity

and the law must be able to keep pace with changing

circumstances. Accordingly, many laws are inevitably couched in

terms which, to a greater or lesser extent, are vague and whose

interpretation and application are questions of practice."

(Eur. Court H.R., the Sunday Times judgment of 26 April 1979,

Series A no. 30 p. 31, para. 49)

46. In a common law system, not only written statutes but also rules

of common or other customary law may provide sufficient legal basis for

the criminal convictions envisaged in Article 7 (Art. 7) of the

Convention.

47. Where law is developed by application and interpretation of

courts in a common law system, their law-making function must remain

within reasonable limits. Article 7 para. 1 (Art. 7-1) excludes that

any acts not previously punishable should be held by the courts to

entail criminal liability or that existing offences should be extended

to cover facts which previously did not clearly constitute a criminal

offences (see eg. No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77).

48. It is however compatible with the requirements of Article 7

para. 1 (Art. 7-1) for the existing elements of an offence to be

clarified or adapted to new circumstances or developments in society

insofar as this can reasonably be brought under the original concept

of the offence. The constituent elements of an offence may not however

be essentially changed to the detriment of an accused and any

progressive development by way of interpretation must be reasonably

foreseeable to him with the assistance of appropriate legal advice if

necessary (see eg. Nos. 8710/79, loc. cit., 10505/83, Dec. 4.3.85,

D.R. 41 p. 178 and No. 13079/87, Dec. 6.3.87, D.R. 60 p. 256).

49. In a common law system therefore, the courts may exercise their

customary role of developing the law through cases but in doing so may

not exceed the bounds of reasonably foreseeable change.

2. Application to the present case

50. The applicant submits that his conviction for rape of his wife

concerned conduct which did not at the relevant time constitute a

criminal offence under United Kingdom law. He contends that the general

rule that a husband could not commit the offence of rape against his

wife was universally accepted until 1990. While exceptions to this

principle had developed, these were strictly limited to circumstances

where, for example, there had been a court order or formal separation

agreement. The facts of this case did not disclose any mutual

separation agreement between the applicant and his wife. There was no

authority for the proposition that a wife could unilaterally withdraw

her consent. Furthermore, in the case of R. v. R. the Court of Appeal

and the House of Lords acknowledged that they were changing the law,

not merely clarifying it. Accordingly, in the applicant's submission,

the courts went beyond reasonable interpretation of the existing law

and extended the definition of the offence in such a way as to include

facts which hitherto had not constituted a criminal offence.

51. The Government submit that the applicant's conviction for the

rape of his wife was in conformity with Article 7 (Art. 7) of the

Convention. They submit that, by the relevant time, Hale's proposition

that a wife's consent to sexual intercourse was irrevocable was no

longer good law. English law did not therefore recognise any absolute

immunity conferred on a husband who had sexual intercourse with his

wife without her consent. There was, in their view, case-law indicating

that a husband could be guilty of raping his wife where, for example,

a court had issued a decree nisi of divorce or a non-molestation order;

where there was an agreement express or implied between the parties

which made it clear that the implied consent of the wife was revoked;

and where there had been a withdrawal of either party from cohabitation

accompanied by a clear indication that consent to sexual intercourse

had been terminated.

52. The Government contend that in the present case the facts

indicated that the applicant's wife had revoked her consent by mutual

agreement with the applicant. Even if the decisions of the courts were

based rather on the fact that a wife was able unilaterally to withdraw

her consent, this was a reasonable interpretation of the existing law

in the light of changing social circumstances and clarified the

existing elements of the offence.

53. The Commission recalls that the applicant was convicted of rape

following an incident on 18 September 1990 in which he had threatened

and assaulted his wife and forced her to have sexual intercourse with

him. His submission that he could not be prosecuted for rape since

husbands enjoyed an immunity in respect of their wives was rejected

in light of the judgment of the Court of Appeal in R.v. R.

54. The Commission does not find that the basic ingredients of the

offence of rape were thereby changed when the Court of Appeal, and

subsequently the House of Lords in R. v. R. reviewed the application

of Hale's principle of marital immunity and declared in effect that the

immunity no longer applied. The offence continued to consist of

unlawful sexual intercourse with a woman without her consent as

provided in the Sexual Offences (Amendment) Act 1976. A purported

immunity based on a presumption as to one ingredient of the offence -

consent- however was definitively removed.

55. It is apparent from case-law of the courts, legal textbooks and

the Law Commission's examination of the state of the law that by 1990

the general immunity afforded to a husband in respect of prosecution

for rape of his wife had already been subject to a number of

exceptions. It was established that in certain circumstances a wife's

deemed consent would be considered as having been revoked: in

particular where a court order affecting the relationship of the

parties had been made or where the parties to a marriage had entered

into a separation agreement.

56. Further by 1989, the High Court of Justiciary in Scotland had

already come to the conclusion that a similar marital immunity was no

longer valid and that the only question was whether a wife consented

to the acts in question.

57. In the case of R. v R., the defendant was convicted on

30 July 1990 of attempted rape of his wife in circumstances where she

had left the matrimonial home and he had forced his way into her

parents' house where he had assaulted and tried to rape her. The trial

judge in rejecting a submission that marital immunity applied, doubted

the extent to which it could ever have been permissible under the

common law for a husband to beat his wife into having sexual

intercourse with him. In any event he considered that there was

sufficient evidence to indicate an implied agreement to a separation

by the parties which would bring the case outside the immunity. He also

considered that the common law recognised an exception to the concept

of marital immunity where there has been a withdrawal of either party

from cohabitation, accompanied by a clear indication that consent to

sexual intercourse had been terminated. An appeal challenging the

correctness of the trial judge's ruling was pending at the time of the

incident in this case.

58. In light of the above, the Commission considers that by

September 1990 there was significant doubt as to the validity of the

alleged marital immunity for rape. As stated by the Court of Appeal in

the case of R. v. R., lip service had been paid to the alleged general

rule while the courts at the same time increased the number of

exceptions. That there was uncertainty as to the width of the

exceptions is apparent from the Law Commission Working Paper examining

the question.

59. The Commission finds that this was an area in which the law had

been subject to progressive development as courts increasingly found

Hale's notion of implied consent by a wife inapplicable to situations

where the ordinary relations created by marriage no longer subsisted.

There were strong indications that still wider interpretation by the

courts was probable. In particular, given the recognition by

contemporary society of women's equality of status with men in marriage

and outside it and their autonomy over their own bodies, the Commission

is of the opinion that the adaptation in the application of the offence

of rape was reasonably foreseeable to an applicant with appropriate

legal advice.

60. The Commission is also of the opinion that it is improbable that

the applicant, when he embarked on the course of conduct in question,

could have held any genuine belief that it was lawful.

61. Consequently, the Commission finds that the judgments of the

domestic courts in the case of R. v. R. did not go beyond legitimate

adaptation of the ingredients of a criminal offence to reflect the

social conditions of the time and that the applicant was not as a

result convicted of conduct which did not constitute a criminal offence

at the time which it was committed.

CONCLUSION

62. The Commission concludes, by 11 votes to 6, that there has been

no violation of Article 7 para. 1 (Art. 7-1) of the Convention.

U

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Or. English

CONCURRING OPINION OF MRS. J. LIDDY

1. In 1984 the Criminal Law Revision Committee was of the view by

a narrow majority that there should be no change in the basic principle

whereby a husband was immune from any charge of rape by reason of a

fictional consent to intercourse deemed to have been given by the wife

on marriage. A minority was of the view that the law should be changed

so that in all marriages a husband could be convicted of rape, but the

Government did not act on this minority opinion and did not introduce

in Parliament a bill to amend the law. The majority and the minority

of the Criminal Law Revision Committee were apparently united in

recommending that an attempt be made to amend the law to enable a

prosecution to be brought for rape where a married couple were not

cohabiting, although they foresaw difficulties of definition and a

possibility of uncertainty. Again, no bill to amend the law even to

this limited extent was introduced in Parliament by the Government.

2. On 17 September 1990 the Law Commission reviewed the state of

case-law concerning exceptions to the immunity. With regard to the

statements of the trial judge in R.v. R. (30 July 1990) concerning the

exceptions of (a) implied agreement to separate and (b) withdrawal from

cohabitation accompanied by a clear indication that consent to sexual

intercourse had been terminated, the Law Commission considered that

these represented a substantial extension of what had previously been

thought to be the law. It recommended that the immunity be abolished

by legislation.

3. The following day, 18 September 1990, the applicant forcibly had

sexual intercourse with his wife in their home, and was subsequently

charged with rape, threatening to kill and assault.

4. On 20 November 1990 in R. v. J. the courts confirmed that the

immunity continued to be part of the law.

5. On 14 March 1991 the Court of Appeal in R. v. R. said that the

immunity should no longer be applied.

6. On 19 April 1991 the applicant was convicted of rape (and also

of threatening to kill and assault) on the basis of the Court of

Appeal's decision in R. v. R.

7. On 23 October 1991 the House of Lords in R. v. R. declared that

the immunity no longer formed part of the law. Having reviewed the

exceptions to the immunity established by case-law the House of Lords

said "Those cases illustrate the contortions to which judges have found

it necessary to resort in face of the fiction of implied consent to

sexual intercourse."

8. Article 7(1) excludes that any acts not previously punishable

should be held by the courts to entail criminal liability. On the

other hand, case-law may clarify the existing elements of the offence

and adapt them to new circumstances which can reasonably be brought

under the original concept of the offence (D.R. 28 p. 77).

9. In the present case the act of forcibly having sexual relations

with one's wife in the home had not previously been punishable as rape,

although a charge of assault could lie and attract a different penalty.

The applicant's conviction was based on the Court of Appeal's decision

in R. v. R. sweeping away the immunity. This was not a clarification

of the existing elements of the offence but a fundamental change of the

law. The change upheld by the House of Lords may have been prompted

by judicial impatience with the legislature and professional reluctance

to engage in further "contortions" of the law, but its effect is to

criminalise acts which may have been performed years or decades before

the case of R. v. R.

10. This reasoning would lead to a finding of a violation of

Article 7 (1), were it not for the fact that the Convention has to be

read as a whole. Article 17 states "Nothing in this Convention may be

interpreted as implying for any ... person any right to engage in any

activity or perform any act aimed at the destruction of any of the

rights and freedoms set forth herein or at their limitation to a

greater extent than is provided for in the Convention."

11. One of the rights guaranteed by the Convention is the right to

private life, including integrity of the person, and including the

right of a woman to effective measures by means of criminal law

provisions whereby there is deterrence against rape (X. and Y. v.

Netherlands, Series A, no. 91). This right was identified by the Court

as long ago as 1985.

12. In the case of Lawless v. Ireland (Series A, No. 3 p.45 para. 7)

the Court stated that "the purpose of Article 17, insofar as it refers

to groups or to individuals, is to make it impossible for them to

derive from the Convention a right to engage in any activity or perform

any act aimed at destroying any of the rights or freedoms set forth in

the Convention ... in the present case G. R. Lawless has not relied on

the Convention in order to justify or perform acts contrary to the

rights and freedoms recognised therein ..."

13. The same cannot be said of the present applicant. He is

indisputably seeking to rely on Article 7 to justify the act of forcing

his wife to have sexual intercourse with him in 1990, an act aimed at

destroying her right to bodily integrity. However, Article 17

precludes him from deriving from the Convention justification for his

conduct or a finding that the United Kingdom authorities infringed his

fundamental rights by punishing such conduct after a fair trial.

14 For these reasons I consider that there has been no violation of

Article 7.

Or. English

DISSENTING OPINION OF MR. L. LOUCAIDES JOINED BY

MM. S. TRECHSEL, M. A. NOWICKI AND I. CABRAL BARRETO

I regret that I am unable to agree with the opinion of the

majority of the Commission that there has been no violation of

Article 7 para. 1 of the Convention.

I agree with the majority that by 1990 the general immunity

afforded to a husband in respect of prosecution for rape of his wife

had been subject to certain exceptions ie. where a court order

affecting the relationship of the parties had been made or where the

parties to a marriage had entered into a separation agreement. However,

the general principle continued to exist: as is apparent from the

judgment of Mr. Justice Rougier in R. v J. as recently as November 1990

who found that the accused in the case before him should not be

convicted ex post facto of rape of his wife .

The conviction of the applicant in this case is due to the

judicial determination of the case of R. v. R. up to the Court of

Appeal. The trial judge in R. v. R. had held, in rejecting the

defendant husband's submission that he fell within the marital

immunity, that in any event even if the immunity did continue to exist,

there was sufficient evidence to indicate an implied agreement to a

separation by the parties which would bring the case outside the

immunity. He also considered that the common law recognised an

exception to the concept of marital immunity where there had been a

withdrawal of either party from cohabitation, accompanied by a clear

indication that consent to sexual intercourse had been terminated.

However before the case of R. v. R. there had been no other authority

suggesting that an implied agreement between the parties would be

sufficient or that a wife could by unilateral action withdraw her

consent. Indeed there were judicial dicta to the contrary (see

paras. 33-34).

In the case of this applicant, his submission as to the

applicability of the immunity was not rejected on the basis that he

fell within one of the exceptions. Even assuming that, in light of the

ruling at first instance in R. v. R., the exceptions could be construed

as including circumstances where there was an implied agreement or

where the wife had unilaterally withdrawn from cohabitation, at the

same time clearly indicating the withdrawal of consent to intercourse,

it is apparent that the circumstances of the applicant's case fell

outside such exceptions. At the time of the incident, the applicant and

his wife were co-habiting and it would have been difficult to argue

that any unequivocal agreement or incontrovertible step towards

separation had taken place.

As pointed out by the applicant, this was the first case where

a husband still co-habiting with his wife was convicted of rape. The

immunity was held not to apply to him because of the decision of the

Court of Appeal, subsequently upheld by the House of Lords, that the

immunity was an anachronistic and an offensive fiction which should be

swept away. In so holding, I find that an immunity based on a historic

legal presumption as to one ingredient of the offence of rape - lack

of consent - was definitively removed to the applicant's detriment.

I do not consider that the abolition of this immunity in its

entirety can be construed as mere clarification of the existing

elements of an offence or as any adaptation of such elements to new

circumstances which can reasonably be brought under the original

concept of the offence. In the case of the applicant, the removal of

the immunity resulted in the application of the criminal law to conduct

which had never previously constituted and offence. This step would

have not been reasonably foreseeable to the applicant even with the

assistance of legal advice.

I have considered whether nevertheless the facts of this case

fall within the scope of Article 7 para. 2 as involving the punishment

of a person for an act which at the time at which it was committed was

criminal according to the general principles of law recognised by

civilised nations. The travaux préparatoires indicate that this

provision in the Convention was intended to cover prosecution of crimes

against humanity in the context of the post-Second World War Nuremberg

trials. While it cannot be excluded that other conduct might fall

within the ambit of the paragraph, I am of the opinion that there is

insufficient general consensus as regards marital rape, similar

immunities existing, or existing until recently in a number of common

law jurisdictions.

Consequently, I find that the applicant was convicted of conduct

which did not constitute a criminal offence at the time at which it was

committed. I would emphasise that this finding does not in any way

condone the conduct in question or validate the marital immunity which

husbands were afforded by Hale's principle (see para. 29 above). I

would subscribe unconditionally to the sentiments expressed by the

Court of Appeal and House of Lords in the case of R. v. R. as regards

the offensive nature of the principle. Prior to its removal, an issue

might indeed have arisen as regards a failure on the behalf of the

United Kingdom to fulfill a positive obligation to ensure respect for

a wife's rights. The 1990 Law Commission Working Paper provisionally

proposed abolition of the principle by way of legislation. The

principle was instead abolished by the courts with a retrospective

effect which is not compatible with the requirements of

Article 7 para. 1 of the Convention.

I conclude that there has been on the facts of this case a

violation of Article 7 para. 1 of the Convention.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

29.03.92 Introduction of the application

18.06.92 Registration of the application

Examination of admissibility

12.10.92 Commission's decision to invite the parties to

submit observations on the admissibility and

merits

29.01.93 Government's observations

31.03.93 Applicant's reply

08.04.93 Commission's decision to grant the applicant

legal aid

28.06.93 Commission's decision to invite the parties to

an oral hearing

14.01.94 Hearing on admissibility and merits

14.01.94 Commission's decision to declare the application

admissible

Examination of the merits

14.01.94 Commission's deliberations

02.03.94 Applicant's observations on the merits

13.05.94 Consideration of the state of proceedings

27.06.94 Commission's deliberations on the merits, final

votes and adoption of the Report

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S.W. v. the UNITED KINGDOM

S.W. v. the UNITED KINGDOM

LEXI