C.R. v. THE UNITED KINGDOM



                      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)

 

Full & Egal Universal Law Academy