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Publication:A 335 B
Title:S.W. v. The United Kingdom
Application No:20166/92
Respondent:The United Kingdom
Referred by:Commission
Date of reference by Commission:09-09-1994
Date of reference by State:
Date of Judgment:22-11-1995
Articles:7Conclusion:No violation of article 7

S.W. v. United Kingdom and C.R. v. United Kingdom. Both applicants were charged with rape, under 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, in breach of section 47 of the latter Act. The applicant S.W. was charged with rape, threatening to kill and assault. His trial commenced on 16 April 1991. One month earlier the Court of Appeal had upheld the conviction in R. vs. R. of another man of attempted rape of his wife (this was the applicant in the case of C.R. vs. the United Kingdom, judgment which was also given by the European Court of Human Rights at the same day). The Lord Chief Justice, Lord Lane, had ruled that, although Sir Matthew Hale had written in 1736 that a man could not rape his wife because she gave a general consent to intercourse at the time of marriage, since then the common law had developed a number of important exceptions to this rule. This was a legitimate use of the common law which could and should adapt to changing social attitudes. Since there were now so many exceptions to Hale's rule, and since the rule was anachronistic and offensive, it was the duty of the court to abandon it if possible. He considered the argument that the word 'unlawful' in section 1(1) of the Sexual Offences (Amendment) Act 1976 excluded intercourse within marriage from the definition of rape, but concluded that this statutory provision was no obstacle to his declaring that the marital immunity to rape no longer existed. At the trial of S.W., Mr. Justice Rose held himself bound by the Court of Appeal's decision in the case of R. vs. R. The defence argued that this decision had had a retrospective effect contrary to Article 7(1) ECHR. However, the judge ruled that marital immunity for rape had been whittled away by judicial decisions over the past 40 years to the extent that it no longer existed, and that this development of the common law was compatible with Article 7. The applicant was convicted by the jury of all three offences and sentenced to five years' imprisonment. He lodged an appeal against conviction and sentence, but withdrew the former after the House of Lords upheld the judgment of the Court of Appeal in R. v. R. The applicant C.R. was charged with attempted rape and assault. At his trial the defence relied also upon the above-mentioned statement made by Sir Matthew Hale. Mr. Justice Owen considered a number of exceptions to this rule developed by the common law over the last 50 years, and ruled that since there had been an implicit agreement between the applicant and his wife that their marriage was over, and since she had stopped living with him and had clearly indicated that she no longer consented to intercourse with him, this case fell within two of the exceptions to the immunity established by the case-law. The applicant then pleaded guilty to both charges and was sentenced to three years' imprisonment. He appealed to the Court of Appeal, which unanimously dismissed his case, and to the House of Lords, which unanimously upheld the Court of Appeal's judgment. Lord Keith of Kinkel explained that the common law could and should evolve to reflect changes in the position of women in society and the institution of marriage. A number of exceptions to Hale's statement had been developed by the common law, and there was no reason why the whole proposition should not be declared inapplicable in modern times. Furthermore, section 1(1) of the Sexual Offences (Amendment) Act 1976 presented no obstacle to the removal of the marital immunity, because the word 'unlawful' in the definition of rape provided by it did not mean 'outside marriage', but was in fact 'mere surplusage'. The European Court of Human Rights held that the guarantee enshrined in Article 7 occupied a prominent place in the Convention system of protection, as was underlined by the fact that no derogation from it was permissible under Article 15 in time of war or emergency. It should be construed and applied in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. It entailed that only the law could define a crime and prescribe a penalty; that the criminal law should not be extensively construed to an accused's detriment; and that an offence ought to be clearly defined in law. Nonetheless, however clearly drafted a legal provision might be, in any system of law there was an inevitable element of judicial interpretation, elucidation of doubtful points and adaptation to changing circumstances. Article 7 could not be read as outlawing this process, provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen. The Court recalled that it was for the national authorities to interpret and apply national law, and found no reason to disagree with the Court of Appeal and the House of Lords about the meaning of 'unlawful' in section 1(1) of the Sexual Offences (Amendment) Act 1976. Their decisions did no more than continue a perceptible line of case law development dismantling the marital immunity for rape. There was no doubt under the law as it stood on 12 November 1989 that a husband who forcibly had sexual intercourse with his wife could, in various circumstances, be found guilty of rape. Moreover, there was a clear movement in the case law, which was consistent with the essence of the offence, towards treating such conduct generally as within the scope of rape. This evolution had reached a stage where judicial recognition of the absence of the immunity had become a reasonably foreseeable development. The essentially debasing character of rape was so manifest that the decisions of the national courts could not be said to be at variance with the object and purpose of Article 7 nor with the fundamental objectives of the Convention, namely respect for human dignity and freedom. In short, the Court found that the national courts' decisions that the applicants could not invoke immunity to escape conviction and sentence for attempted rape upon his wife did not give rise to a violation of his rights under Article 7(1).

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)