Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20190/92

C.R.

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. 19-41). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 19-29) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 30-41) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 42-63). . . . . . . . . . . . . . . . . . . . . . . . 9

A. Complaint declared admissible

(para. 42) . . . . . . . . . . . . . . . . . . . . . . . 9

B. Point at issue

(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 9

C. Article 7 of the Convention

(para. 44-62). . . . . . . . . . . . . . . . . . . . . . 9

1. General considerations

(paras. 45-50) . . . . . . . . . . . . . . . . . . 9

2. Application to the present case

(paras.51-62). . . . . . . . . . . . . . . . . . .10

CONCLUSION

(para. 63). . . . . . . . . . . . . . . . . . . . . . . . . .12

CONCURRING OPINION OF MRS. J. LIDDY . . . . . . . . . . . . . . . .13

DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MR. M.A. NOWICKI. . . . . . . . . . . . . . . . . . . . .15

OPINION DISSIDENTE DE M. I. BÉKÉS . . . . . . . . . . . . . . . . .17

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 C.R., a British citizen born in 1952 and

resident in Leicester. He is represented by Mr. Peter Snow, honorary

legal officer of the Campaign for Justice in Divorce.

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 attempted 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 31 March 1992 and registered

on 19 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 complaint raised under Article 7

of the Convention.

7. The Government submitted their written observations on

29 January 1993. The applicant submitted his written observations in

reply on 24 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. Peter Snow, legal officer and

Mr. R. Guthrie, assistant.

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

complaint under Article 7 of the Convention. The remainder of the

application was declared inadmissible.

11. The parties were then invited to submit any additional

observations on the merits of the application.

12. On 21 and 24 March 1994, the applicant submitted further

observations.

13. After declaring the case partially 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 facts, as summarised by the Court of Appeal in the

applicant's case, are accepted by both parties.

20. The applicant married his wife on 11 August 1984. They had one

son, who was born in 1985. On 11 November 1987 the parties separated

for a period of about two weeks before becoming reconciled.

21. On 21 October 1989, as a result of further matrimonial

difficulties, the wife left the matrimonial home with their son and

returned to live with her parents. She had by this time already

consulted solicitors regarding her matrimonial affairs and had left a

letter for the applicant in which she informed him that she intended

to petition for divorce. However no legal proceedings had been taken

by her before the incident took place which gave rise to criminal

proceedings. The applicant had on 23 October 1989 spoken to his wife

by telephone indicating that it was his intention also to "see about

a divorce".

22. Shortly before 21.00 on 12 November 1989, 22 days after the wife

had returned to live with her parents, and while the parents were out,

the applicant forced his way into the parents' house and attempted to

have sexual intercourse with the wife against her will. In the course

of that attempt he assaulted her, in particular by squeezing her neck

with both hands.

23. The applicant was charged with attempted rape and assault

occasioning actual bodily harm. At his trial before the Leicester

Crown Court on 30 July 1990 it was submitted that the charge of rape

was one which was not known to the law by reason of the fact that the

applicant was the husband of the alleged victim. The submission was

based on the pronouncement of the common law made by Sir Matthew Hale

in his "History of the Pleas of the Crown", p. 629, published in 1736:

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

upon his lawful wife, for by their mutual matrimonial consent and

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

husband, which she cannot retract."

24. The trial judge, 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 paras. 34). 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.

25. The applicant then pleaded guilty to attempted rape and assault

occasioning actual bodily harm, and was sentenced to three years'

imprisonment. He appealed.

26. The Court of Appeal held on 14 March 1991 as follows:

"Since the rule that a husband could not be guilty of raping his

wife if he forced her to have sexual intercourse against her will

was an anachronistic and offensive common law fiction which no

longer represented the position of a wife in present-day society,

it should no longer be applied. Instead, the principle to be

applied was that a rapist remained a rapist subject to the

criminal law irrespective of his relationship with his victim.

The charge of rape had therefore properly been left to the jury.

The appeal would accordingly be dismissed."

27. 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

end as far as she was concerned the husband's immunity would be lost.

28. The Court of Appeal's decision was unanimously upheld by the

House of Lords on 23 October 1991. It considered that Sir Matthew

Hale's common law proposition could not preclude the application of

section 1 of the Sexual Offences (Amendment) Act 1976 concerning the

offence of rape.

29. The House of Lords' judgment was summarised by a Times Law Report

dated 24 October 1991 as follows:

"For over 150 years after the publication of Hale's work there

appeared to have been no reported case in which judicial

consideration was given to this proposition. It may be taken

that the proposition was generally regarded as an accurate

statement of the common law of England.

The common law was however capable of evolving in the light of

changing social, economic and cultural developments. Hale's

proposition reflected the state of affairs in those respects at

the time it was enunciated. Since then the status of women and

particularly of married women had changed out of all recognition.

Apart from property matters and the availability of matrimonial

remedies one of the most important changes was that marriage was

in modern times regarded as a partnership of equals and no longer

one in which the wife was the subservient chattel of the husband.

Hale's proposition involved that by marriage a wife gave her

irrevocable consent to sexual intercourse with her husband under

all circumstances and irrespective of the state of her health or

how she happened to be feeling at the time. In modern times any

reasonable person had to regard that conception as quite

unacceptable.

The position was that part of Hale's proposition had been

departed from in a series of decided cases. On the ground of

principle there was no good reason why the whole proposition of

'marital exemption' to rape should not be held inapplicable in

modern times.

The only question was whether section 1 (1) of the 1976 Act

presented an insuperable obstacle to that sensible course. The

argument was that 'unlawful' in that subsection meant outside the

bond of marriage.

That was not the most natural meaning of the word which normally

described something which was contrary to some law or enactment

or was done without lawful justification or excuse. Certainly

in modern times sexual intercourse outside marriage would not

ordinarily be described as unlawful.

If the subsection proceeded on the basis that a woman on marriage

gave a general consent to sexual intercourse there could be no

question of intercourse with her by her husband being without

consent. There would thus be no point in enacting that only

intercourse without consent outside marriage was to constitute

rape.

There was another important context to section 1 (1), namely the

existence of the exceptions to the marital exemption established

by cases decided before the Act was passed.

Sexual intercourse in any of the cases covered by the exceptions

still took place within the bond of marriage. So if 'unlawful'

in the subsection meant 'outside the bond of marriage' it

followed that sexual intercourse in a case which fell within the

exceptions was not covered by the definition of rape not-

withstanding that it was not consented to by the wife.

That involved that the exceptions had been impliedly abolished.

If the intention of Parliament was to abolish the exceptions it

would have been expected to do so expressly and it was in fact

inconceivable Parliament should have had such an intention.

In order that the exceptions might be preserved it would be

necessary to construe 'unlawfully' so as to give it a meaning

unique to that particular subsection and if the mind of the

draughtsman has been directed to the existence of the exceptions

he would surely have dealt with them specifically and not in such

an oblique fashion.

The fact was it was clearly unlawful to have sexual intercourse

with any woman without her consent and that the use of the word

in the subsection added nothing. There were no rational grounds

for putting the suggested gloss on the word and it should be

treated as mere surplusage in the enactment.

Section 1 (1) of 1976 Act presented no obstacle to the House

declaring that in modern times the supposed marital exemption in

rape formed no part of the law of England."

B. Relevant domestic law and practice

Common law

30. Until the applicant's case the English courts, on the few

occasions that 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 (para. 23) 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".

31. 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."

32. 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 alleges, 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".

33. 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..."

34. 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.

35. 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.

36. 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.

37. 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

38. 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

39. 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.

40. 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.

41. 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

42. 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

43. 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

44. 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

45. 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.

46. 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)

47. 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.

48. 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).

49. 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).

50. 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

51. The applicant submits that his conviction for the attempted 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 do 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 applicant's

case, 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.

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

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

of the Convention. 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.

53. 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.

54. The Commission recalls that the applicant was convicted of

attempted rape following an incident on 12 November 1989 in which he

had broken into his wife's parents' house, assaulted his wife and

attempted to force her to have sexual intercourse with him. His

submission that he could not be prosecuted for attempted rape since

husbands enjoyed an immunity in respect of their wives was rejected by

the trial judge and his appeal against his resulting conviction

rejected by the Court of Appeal and House of Lords.

55. 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 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.

56. 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 1989

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.

57. 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.

58. In the present case, the trial judge, when rejecting the

applicant's 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 had been a withdrawal of either party from cohabitation,

accompanied by a clear indication that consent to sexual intercourse

had been terminated.

59. In light of the above, the Commission considers that by November

1989 there was significant doubt as to the validity of the alleged

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

applicant's case, 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.

60. 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.

While there was no express authority for the proposition that an

implied agreement of separation between husband or wife or unilateral

withdrawal of consent by the wife would bring a case outside the

marital immunity, the Commission takes the view that in the present

case where the applicant's wife had withdrawn from co-habitation and

there was de facto separation with the expressed intention of both to

seek a divorce, there was a basis on which it could be anticipated that

the courts could hold that the notional consent of the wife was no

longer to be implied. In particular, given the recognition by

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

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

Commission considers that this adaptation in the application of the

offence of rape was reasonably foreseeable to an applicant with

appropriate legal advice.

61. The Commission is also of the opinion that it is inconceivable

that the applicant when he embarked on the course of conduct in

question could have held any genuine belief that it was lawful.

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

domestic courts in the applicant's case 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 at which it was committed.

CONCLUSION

63. The Commission concludes, by 14 votes to 3, that there has been

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

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 12 November 1989 the applicant attempted by force to have

sexual intercourse with his recently estranged wife at her parents'

home, which he had forced his way into. He was subsequently charged

with attempted rape and assault.

3. On 30 July 1990 the trial judge ruled that there were exceptions

to the immunity where there was (a) an implied agreement to separate

and (b) withdrawal from cohabitation accompanied by a clear indication

that consent to sexual intercourse had been terminated. Neither of

these exceptions had been indicated, even obiter, in earlier case-law.

The applicant was convicted of attempted rape and assault. He

appealed.

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

case-law concerning exceptions to the immunity. It commented that the

trial court's ruling was difficult to reconcile with previous

authorities and that it appeared substantially to extend what had

previously been thought to be 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 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."

7. 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).

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

with one's recently estranged wife had not previously been thought to

be unlawful, as is evidenced by the Law Commission's Report. The

applicant's conviction was ultimately based on the House of Lords

judgment sweeping away the immunity.

9. This judgment was not a clarification of the existing elements

of the offence of rape, but a fundamental change of the law. The

change 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 that judgment,

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

attempting to force his wife to have sexual intercourse with him in

1989, 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.

(Or. English)

DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MR. M.A. NOWICKI

I am unable to agree with the majority that there has been no

violation of Article 7 (para. 1) of the Convention in this case.

I base my disagreement on the following reasons.

(a) Article 7 (para. 1) excludes that any act not previously

punishable shall be held by the courts to entail criminal liability or

that existing offences should be extended to cover facts which

previously clearly did not constitute a criminal offence. This implies

that constituent elements of an offence may not be essentially changed,

at least not to the detriment of the accused, by the case law of the

courts. Existing elements of the offence may be simply clarified and

adapted to new circumstances which can reasonably be brought under the

original concept of the offence.

(b) On 12 November 1989 the applicant attempted, by force, to

have sexual intercourse with his recently estranged wife at her

parents' home, into which he had forced his way. He was subsequently

charged with rape and assault.

(c) At the time of the applicant's act, for which he was later

on charged and convicted for rape, it was a clear and well-settled law

in England that a man cannot be guilty of rape upon his wife, he being

the actor, for the wife was considered in general unable to retract the

consent to sexual intercourse which was part of the contract of

marriage. This principle was set out in the main text books on English

criminal law and it has been repeatedly upheld by the English courts,

For example in the case of R. v. Kowalski (1987, 86, Cr, App. R 339),

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".

Also, Mr. Justice Rougier in R. v. J. in November 1990 found that

the accused in the case before him should not be convicted ex post

facto of rape of his wife.

The general immunity afforded to husbands in respect of

prosecution for rape of his wife has been subject to certain specified

exceptions, none of which was applicable to the facts of the present

case. That the English law on the subject in question was as set out

above is further evidenced by the reviews of the Law Commission

referred to in the Report of the Commission in this case.

(d) The legal basis for the conviction of the applicant is found

in the judgment of 23 October 1991 of the House of Lords in R. v. R.

In the judgment, the House of Lords has for the first time declared

that the immunity in question no longer formed part of the law because

it was an anachronistic and an offensive fiction which should be swept

away.

(e) I find that as a result of the above judgment, the law as

regards one of the existing elements of the offence of rape, i.e.,

consent, has been fundamentally changed to the applicant's detriment.

It was neither a clarification of the existing elements of the offence

in question, nor an adaptation of such elements to new circumstances

which could reasonably be brought under the original concept of the

offence. In sum, I believe that the House of Lords, by their judgment

in question, made criminal a conduct which was previously not

sanctioned by the criminal law.

The fact that a change of the law so as to remove the above-

mentioned immunity was necessary does not make any difference for the

purposes of the principle safeguarded under Article 7 para. 1 of the

Convention. Such change could have been effected through legislation.

A change through the case-law of the courts could not have been

reasonably foreseeable to the applicant even with the assistance of

legal advice and consequently, in my view, there has been a breach of

that Article in this case.

Before concluding, I would like to answer briefly the question

of the applicability of Article 17 raised by Mrs. J. Liddy in her

separate opinion. Article 17 states that "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." In my

opinion, Article 17 is intended to exclude the abuse of any of the

specific rights safeguarded by the Convention for any of the purposes

set out in the same Article. The applicant at the time of the

commission of the act for which he was found guilty of rape was not

purporting to exercise his rights under Article 7 (para. 1) of the

Convention. These rights only arose at the time of his conviction.

(Or. French)

OPINION DISSIDENTE DE M. I. BÉKÉS

Je ne partage pas l'avis de la majorité lorsqu'elle estime qu'il

n'y a pas eu violation de l'article 7 de la Convention.

Le requérant se plaint d'avoir été condamné pour tentative de

viol de sa femme alors qu'au moment de la commission des faits, ceux-ci

ne constituaient pas une infraction pénale en vertu du droit anglais.

S'agissant de la question de la légalité des infractions et des

peines, il importe de présenter les textes juridiques pertinents.

Aux termes de l'article 1 (1) de la loi anglaise de 1976 relative

aux infractions sexuelles; "un homme commet un viol si (a) il a des

relations sexuelles illégales avec une femme qui au moment de l'acte

n'est pas consentante ...". Deux notions je semblent essentielles :

l'absence de consentement et l'illégalité.

En vertu du droit coutumier (common law), qui en l'espèce résulte

de la proposition de Sir Matthew Hale publiée en 1736, le mari ne peut

être coupable de viol envers son épouse. En effet, selon ce droit, les

liens du mariage créent une présomption irréfragable de consentement

de la femme à son époux. Dès lors, celui-ci ne saurait être considéré

pénalement responsable d'aucun acte sexuel illégal envers sa femme.

Ce principle, qualifié d'"exemption matrimoniale de viol",

confère au mari une immunité pénale pour ce qui est de l'ensemble des

relations sexuelles qu'il entretient avec son épouse indépendamment du

consentement de celle-ci.

C'est tout au moins ainsi que j'interprète les règles du droit

anglais pertinentes dans cette affaire.

En l'espèce, pour condamner le requérant; la "House of Lords"

jugé qu'à l'époque des faits, il ressortait clairement des termes de

la loi de 1976 que toute relation sexuelle avec une femme non

consentante constituait un viol et donc une infraction pénale, et donc

que "l'exemption matrimoniale de viol" ne faisait plus partie

intégrante du droit anglais.

Notre Commission a estimé qu'en statuant de la sorte, les

juridictions anglaises n'avaient pas excédé leur devoir légitime de

clarification du droit pénal au regard des conditions sociales de

l'époque et qu'en conséquence, le requérant n'avait pas été condamné

pour une action qui au moment où elle avait été commise ne constituait

pas un crime.

Je pense pour ma part que les juridictions anglaises ont excédé

leur pouvoir d'interprétation du droit écrit. Certes, le droit

coutumier est par nature sujet à modification au regard notamment de

l'évolution des mentalités et des comportements, mais il n'en deneure

pas moins que l'on ne saurait lui substituer ex abrupto une règle du

droit écrit. En effet, pareille interprétation extensive de la loi

emporte une incertitude juridique pour le mari, incertitude que

l'évolution des moeurs ne saurait aucunement justifier.

A mon sens, la solution eut été de légiférer en excluant

expressément l'immunité pénale du mari en cas de relation sexuelle non

consenties par l'épouse. A défaut, j'estime que l'immunité pénale du

mari consacrée par la common law constituait à l'époque de la

commission des faits le règle de droit applicable au sens de

l'article 7 de la Convention et qu'en conséquence, les juridictions

anglaises ne pouvaient légitimement condamner le requérant pour le viol

de son épouse.

Il y a donc eu violation de l'article 7 de la Convention.

J'aimereais enfin ajouter, que s'il est vrai que d'un point de

vue moral cette règle coutumière est anachronique, il appartient

justement à notre Commission de distinguer la morale de l'exigence de

sécurité juridique des ressortissants des Etats parties. La présente

affaire lui donnait l'opporunité de se pencher sur cette question et

de poser des lignes directrices pour l'avenir. Je regrette que tel

n'en ait pas été le cas.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

31.03.92 Introduction of the application

19.06.92 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

24.03.93 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

21.03.94 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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C.R. v. the UNITED KINGDOM

C.R. v. the UNITED KINGDOM

LEXI