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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 20190/92                       by C.R.                       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       MM.   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 31 March 1992 by C.R. against the United Kingdom and registered on 19 June 1992 under file No. 20190/92;         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 24 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 1952, and resident in Leicester.   He is represented before the Commission by Mr. Peter Snow, Honorary Legal Officer of the Campaign for Justice in Divorce.         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 refers to the summary of the facts, which gave rise to his application, made by the Court of Appeal in his case:         "(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.         On 21 October 1989, as a result of further matrimonial       difficulties, the wife left the matrimonial home with their son,       who was then aged four, and returned to live with her parents.       She had by this time already consulted solicitors regarding her       matrimonial affairs and indeed 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       these criminal proceedings.   It seems that (the applicant) had       on 23 October spoken to his wife by telephone indicating that it       was his intention also to 'see about a divorce'.         Shortly before 9 o'clock on the evening of 12 November 1989, that       is to say some 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."         The applicant was charged with 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."         The trial judge, Owen J., ruled that the charge could go to the jury. He found, inter alia, that there was sufficient evidence to indicate an implied agreement to a separation and a withdrawal of consent. 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. The applicant then pleaded guilty to attempted rape and assault occasioning actual bodily harm, and was sentenced to three years' imprisonment.   He appealed.         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."         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.         The House of Lords' judgment was summarised by a Times Law Report 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         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 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 he is a victim of a violation of Article 7 of the Convention, as well as Article 6.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 31 March 1992 and registered on 19 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 in the time-limit fixed for that purpose, and the applicant's observations in reply were submitted on 24 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 W. v. the United Kingdom (No. 20166/92).         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. Peter Snow                    Legal officer Mr. R. Guthrie                    Assistant   THE LAW   1.     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 (Art. 7) 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 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 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 the attempted 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 applicant's case, 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 applicant's complaint 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 this part of 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.   2.     The applicant also complains that he did not receive a fair hearing in respect of the determination of his conjugal rights. He relies on Article 6 para. 1 (Art. 6-1) of the Convention. He claims that he was at no time afforded a proper determination of his civil rights and obligations with particular reference to the conjugal rights of both parties to a marriage and, moreover, that he was denied a fair trial of the charge against him by reason of the failure of the courts to observe, and give proper effect to, the statutory definition of rape (as `unlawful sexual intercourse') in section 1 (1) of the Sexual Offences (Amendment) Act 1976."         The Government's observations were not solicited on this point.         Article 6 para. 1 (Art. 6-1) of the Convention provides in its first sentence as follows:         "1.   In the determination of his civil rights and obligations or       of any criminal charge against him, everyone is entitled to a       fair and public hearing within a reasonable time by an       independent and impartial tribunal established by law..."   a.     As regards the applicant's complaints concerning conjugal rights, the Commission finds no indication that on the facts of the present case the applicant enjoyed any "civil right" with respect to the enjoyment of conjugal rights in the absence of the consent of his wife. This aspect of the case must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   b.     As regards the applicant's complaints concerning the decisions of the courts in the criminal proceedings, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see eg. No. 458/59, X v. Belgium, Dec. 29.3.60, Yearbook 3 pp.222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43 pp.71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18 pp. 31, 45).         The Commission recalls that the applicant complains that the courts erred in their construction of the 1976 Sexual Offences (Amendment) Act. It is not for the Commission to re-assess these factual elements of the case before the domestic courts. Insofar as it is alleged that as a result the applicant was wrongly convicted of an offence which did not exist at the relevant time it raises no separate issue under Article 6 (Art. 6) of the Convention.         It follows that this part of the case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES ADMISSIBLE the complaint under Article 7 of the       Convention, without prejudging the merits;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission       President of the Commission         (H.C. KRÜGER)                     (C.A. NØRGAARD)