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