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)