CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                               SUR LA RECEVABILITÉ                         Application No. 20166/92                       by S. W.                       against the United Kingdom         The European Commission of Human Rights sitting in private on 14 January 1994, 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            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA            I. BÉKÉS            J. MUCHA            D. SVÁBY         Mr.   H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 25 March 1992 by S. W. against the United Kingdom and registered on 18 June 1992 under file No. 20166/92;         Having regard to:   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       29 January 1993 and the observations in reply submitted by the       applicant on 31 March 1993;   -      the observations submitted by the parties at the oral hearing on       14 January 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a British citizen, born in 1963, and detained in H.M. Prison Erlstoke, Devizes, Wiltshire.   He is represented before the Commission by Messrs. S.P. Groves & Co., Solicitors, Farnham, Surrey.         The facts of the present case, as submitted by the parties, may be summarised as follows:   A.     The particular circumstances of the case         The applicant had a stormy relationship with his wife and the marriage came under great strain in 1990 with the applicant becoming unemployed.   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 it 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.         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.   On 19 April 1991 the applicant was convicted of all three offences and sentenced to five years' imprisonment for the first offence, two years' imprisonment for the second and three months' imprisonment for the third.         At his trial the applicant had submitted that he was not liable to a charge of rape, for to hold otherwise would be contrary to the common law principle that a husband cannot commit the offence of rape on his wife.   Founded on the teachings of St. Augustine in the sixth century, the common law of England was stated by Sir Matthew Hale in his "History of Pleas for the Crown" published in 1736 as follows:-         "... 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 ..."         However, on 14 March 1991 in R. v. R. the Court of Appeal had declared that the general principle was anachronistic and an offensive common law fiction which should no longer be applied.   The conviction of the defendant in R. v. R. by a Crown Court for an offence of attempted rape against his wife was accordingly upheld.   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.         The applicant had contended at his trial 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 Aricle 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.         The trial judge, Mr. Justice Rose, assumed for the purposes of his judgment that submissions (b) and (c) were possibly correct in principle, but that this case fell within the exception contained in Article 7 para. 2 of the Convention, and he therefore rejected the submissions.         The applicant lodged an appeal against conviction and sentence in which he repeated the submissions set out in paragraphs (a) to (c) above, but before the appeal was heard the House of Lords had given the decision in R. v. R. referred to above.   The latter decision made no reference to the Convention or to Article 7 para. 1 of the Convention.   In the 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, maintaining his appeal against sentence, which at the time of lodging the application was still pending.   B.     Relevant Domestic Law and Practice   Common law         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 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".         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."   Sexual Offences (Amendment) Act 1976         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..."   COMPLAINTS         The applicant complains that his conviction for the rape of his wife constituted a violation of Article 7 of the Convention, in that such a conviction was not based on any penal offence under national or international law on the day on which he committed the offending act, namely 18 September 1990.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 29 March 1992 and registered on 18 June 1992.         On 12 October 1992 the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 29 January 1993 after one extension of the time limit fixed for this purpose, and the applicant's observations in reply were submitted on 31 March 1993.         On 8 April 1993, the Commission granted the applicant legal aid.         On 28 June 1993, the Commission decided to hold an oral hearing, consecutive to a hearing in the case of R. v. the United Kingdom (No. 20190/92).         At the hearing which was held on 14 January 1994, the parties were represented as follows:   For the Government   Mr. Huw Llewellyn                 Agent Mr. Alan Moses Q.C.               Counsel Miss Beverley Waplington          Legal Adviser, Home Office   Mr. Peter Dawson                  Administrator, Home Office   For the applicant   Mr. Alan Tyrell Q.C.              Counsel Mr. Robert Hill                   Counsel Mr. Purvaise Punwar               Counsel Mr. Simon Groves                  Solicitor   THE LAW         The applicant complains that he has been convicted in respect of conduct which at the relevant time did not constitute a criminal offence. He invokes Article 7 (Art. 7) of the Convention, which provides as follows:         "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.   Nor shall a heavier penalty be imposed than the one that       was applicable at the time the criminal offence 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."         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 a wife without her consent. There was case-law indicating that a husband could be guilty of raping his wife where a court had issued a decree nisi of divorce or a non- molestation order; where the husband had given an undertaking in lieu of an injunction not to molest his wife; 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.         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.         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. 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 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 R. v. R. the Court of Appeal and the House of Lords acknowledged that they were changing the law, not merely clarifying it. 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.         The Commission has taken cognizance of the submissions of the parties. It considers that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. It follows that the application cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits.   Secretary to the Commission            President of the Commission         (H.C. KRUGER)                          (C.A. NØRGAARD)