In the case of S.W. v. the United Kingdom (1),

      The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:

      Mr R. Ryssdal, President,
      Mr F. Gölcüklü,
      Mr C. Russo,
      Mr J. De Meyer,
      Mr S.K. Martens,
      Mr F. Bigi,
      Sir John Freeland,
      Mr P. Jambrek,
      Mr U. Lohmus,

and also of Mr H. Petzold, Registrar,

      Having deliberated in private on 24 June and 27 October 1995,

      Delivers the following judgment, which was adopted on the
last-mentioned date:
Notes by the Registrar

1.  The case is numbered 47/1994/494/576.  The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number).  The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.

2.  Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9).  They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.


1.    The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 9 September 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention.  It originated in an
application (no. 20166/92) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Commission under Article 25
(art. 25) by Mr S.W., a British citizen, on 29 March 1992.

      The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the United Kingdom recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).  The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 7 (art. 7) of the Convention.

2.    In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyers who would
represent him (Rule 30).

3.    On 24 September 1994 the President of the Court decided, under
Rule 21 para. 6 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider both
the instant case and the case of C.R. v. the United Kingdom (1).
1.  Case no. 48/1994/495/577.

4.    The Chamber to be constituted for this purpose included ex
officio Sir John Freeland, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)).  On 24 September 1994,
in the presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr F. Gölcüklü, Mr R. Macdonald,
Mr C. Russo, Mr J. De Meyer, Mr S.K. Martens, Mr F. Bigi and
Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).  Subsequently, Mr P. Jambrek, substitute judge,
replaced Mr Macdonald, who was unable to take part in the further
consideration of the case (Rules 22 para. 1 and 24 para. 1).

5.    As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the United Kingdom
Government ("the Government"), the applicant's lawyers and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38).  Pursuant to the order made in consequence, the
Registrar received the applicant's memorial on 3 April 1995 and the
Government's memorial on 6 April.  On 17 May 1995 the Secretary to the
Commission informed the Registrar that the Delegate did not wish to
reply in writing.

6.    On 2 June 1995 the Commission produced various documents, as
requested by the Registrar on the President's instructions.

7.    In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
20 June 1995.  The Court had held a preparatory meeting beforehand.

      There appeared before the Court:

(a) for the Government

      Ms S. Dickson, Foreign and Commonwealth Office,          Agent,
      Mr A. Moses, QC,                                       Counsel,
      Mr R. Heaton, Home Office,
      Mr J. Toon, Home Office,                              Advisers;

(b) for the Commission

      Mr J. Mucha,                                          Delegate;

(c) for the applicant

      Mr A. Tyrell, QC,
      Mr R. Hill, Barrister-at-law,                          Counsel,
      Mr S. Groves, Solicitor,                               Adviser.

      The Court heard addresses by Mr Mucha, Mr Tyrell, Mr Hill and
Mr Moses.


I.    Particular circumstances of the case

A.    Events leading to charges being brought against the applicant

8.    The applicant is a British citizen.  His relationship with his
wife, whom he married in 1987, was turbulent and came under great
strain in 1990 when he became unemployed.  In the early evening of
18 September 1990, she told him that for some weeks she had been
thinking of leaving him and that she regarded the marriage as over.
Prior to that date they had been sleeping separately - according to the
applicant, for one night, or according to his wife, for five nights.
The applicant did not accept that his wife meant what she said and they
had a row following which he ejected her from the house, bruising her
arm.  She went to her next door neighbours and called the police, who
subsequently visited and spoke to both the applicant and his wife
separately.  Later the same evening she re-entered the house and the
applicant had sexual intercourse with her.  Shortly afterwards she left
the house, having first tried to take their child with her.  She went
to the neighbours crying and distressed, complaining to them and to the
police, whom she telephoned, that she had been raped at knife-point.

9.    On 19 September 1990 the applicant was 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.

B.    Crown Court judgment of 30 July 1990 and Court of Appeal judgment
      of 14 March 1991 in the case of R. v. R.

10.   On 30 July 1990 the defendant in another case, R. v. R., had been
sentenced to three years' imprisonment by the Crown Court for attempted
rape and assault occasioning actual bodily harm against his wife.  The
trial judge, Mr Justice Owen, had rejected the defendant's submission
that he could not be convicted in light of a common law principle
stated by Sir Matthew Hale CJ in his History of the Pleas of the Crown
published in 1736:

      "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."

      In his judgment ([1991] 1 All England Law Reports, 747)
Mr Justice Owen noted that it was a statement made in general terms at
a time when marriage was indissoluble.  Hale CJ had been expounding the
common law as it seemed to him at that particular time and was doing
it in a book and not with reference to a particular set of
circumstances presented to him in a prosecution.  The bald statement
had been reproduced in the first edition of Archbold on Criminal
Pleadings, Evidence and Practice (1822, p. 259) in the following terms:
"A husband also cannot be guilty of rape upon his wife."

      Mr Justice Owen further examined a series of court decisions
(R. v. Clarence [1888] 22 Queen's Bench Division 23, [1886-90] All
England Law Reports 113; R. v. Clarke [1949] 2 All England Law
Reports 448; R. v. Miller [1954] 2 All England Law Reports 529; R. v.
Reid [1972] 2 All England Law Reports 1350; R. v. O'Brien [1974] 3 All
England Law Reports 663; R. v. Steele [1976] 65 Criminal Appeal
Reports 22; R. v. Roberts [1986] Criminal Law Reports 188; see
paragraphs 22-25 below), recognising that a wife's consent to marital
intercourse was impliedly given by her at the time of marriage and that
the consent could be revoked on certain conditions.  He added:

      "I am asked to accept that there is a presumption or an implied
      consent by the wife to sexual intercourse with her husband; with
      that, I do not find it difficult to agree.  However, I find it
      hard to ... believe that it ever was the common law that a
      husband was in effect entitled to beat his wife into submission
      to sexual intercourse ...

      If it was, it is a very sad commentary on the law and a very sad
      commentary upon the judges in whose breasts the law is said to
      reside.  However, I will nevertheless accept that there is such
      an implicit consent as to sexual intercourse which requires my
      consideration as to whether this accused may be convicted for

      On the question of what circumstances would suffice in law to
revoke the consent, Mr Justice Owen noted that it may be brought to an
end, firstly, by a court order or equivalent.  Secondly, he observed,
it was apparent from the Court of Appeal's judgment in the case of
R. v. Steele ([1976] 65 Criminal Appeal Reports 22) that the implied
consent could be withdrawn by agreement between the parties.  Such an
agreement could clearly be implicit; there was nothing in the case-law
to suggest the contrary.  Thirdly, he was of the view that the common
law recognised that a withdrawal of either party from cohabitation,
accompanied by a clear indication that consent to sexual intercourse
has been terminated, would amount to a revocation of the implicit
consent.  He concluded that both the second and third exceptions to the
matrimonial immunity against prosecution for rape applied in the case.

11.   An appeal to the Court of Appeal, Criminal Division, was
dismissed on 14 March 1991 ([1991] 2 All England Law Reports 257).
Lord Lane noted that the general proposition of Sir Matthew Hale in his
History of the Pleas of the Crown (1736) (see paragraph 10 above) that
a man could not commit rape upon his wife was generally accepted as a
correct statement of the common law at that epoch.  Further, Lord Lane
made an analysis of previous court decisions, from which it appears
that in R. v. Clarence (1888), the first reported case of this nature,
some judges of the Court for Crown Cases Reserved had objected to the
principle.  In the next reported case, R. v. Clarke (1949), the trial
court had departed from the principle by holding that the husband's
immunity was lost in the event of a court order directing that the wife
was no longer bound to cohabit with him.  Almost every court decision
thereafter had made increasingly important exceptions to the marital
immunity (see paragraph 24 below).  The Court of Appeal had accepted
in R. v. Steele (1976) that the implied consent to intercourse could
be terminated by agreement.  This was confirmed by the Court of Appeal
in R. v. Roberts (1986), where it held that the lack of a
non-molestation clause in a deed of separation, concluded on expiry of
a non-molestation order, did not revive the consent to intercourse.

      Lord Lane added the following observations:

      "Ever since the decision of Byrne J in R. v. Clarke in 1949,
      courts have been paying lip-service to Hale CJ's proposition,
      whilst at the same time increasing the number of exceptions, the
      number of situations to which it does not apply.  This is a
      legitimate use of the flexibility of the common law which can and
      should adapt itself to changing social attitudes.

      There comes a time when the changes are so great that it is no
      longer enough to create further exceptions restricting the effect
      of the proposition, a time when the proposition itself requires
      examination to see whether its terms are in accord with what is
      generally regarded today as acceptable behaviour.


      It seems to us that where the common law rule no longer even
      remotely represents what is the true position of a wife in
      present-day society, the duty of the court is to take steps to
      alter the rule if it can legitimately do so in the light of any
      relevant parliamentary enactment.  That in the end comes down to
      a consideration of the word 'unlawful' in the 1976 Act."

      Lord Lane then critically examined the different strands of
interpretation of section 1 (1) (a) of the 1976 Act (see paragraph 20
below) in the case-law, including the argument that the term "unlawful"
excluded intercourse within marriage from the definition of rape.  He

      "...  [W]e do not consider that we are inhibited by the 1976 Act
      from declaring that the husband's immunity as expounded by
      Hale CJ no longer exists.  We take the view that the time has now
      arrived when the law should declare that a rapist remains a
      rapist subject to the criminal law, irrespective of his
      relationship with his victim.

      The remaining and no less difficult question is whether, despite
      that view, this is an area where the court should step aside to
      leave the matter to the parliamentary process.  This is not the
      creation of a new offence, it is the removal of a common law
      fiction which has become anachronistic and offensive and we
      consider that it is our duty having reached that conclusion to
      act upon it.

      Had our decision been otherwise and had we been of the opinion
      that Hale CJ's proposition was still effective, we would
      nevertheless have ruled that where, as in the instant case, a
      wife withdraws from cohabitation in such a way as to make it
      clear to the husband that so far as she is concerned the marriage
      is at an end, the husband's immunity is lost."

12.   On 23 October 1991, on a further appeal by the appellant in the
above case, the House of Lords upheld the Court of Appeal's judgment,
declaring, inter alia, that the general principle that a husband cannot
rape his wife no longer formed part of the law of England and Wales.
It stressed that the common law was capable of evolving in the light
of changing social, economic and cultural developments.  Whilst
Sir Matthew Hale's proposition had reflected the state of affairs at
the time it was enunciated, the status of women, and particularly of
married women, had changed out of all recognition in various ways.
Apart from property matters and the availability of matrimonial
remedies, one of the most important changes had been that marriage was
in modern times regarded as a partnership of equals, and no longer one
in which the wife must be the subservient chattel of the husband
(R. v. R. [1991] 4 All England Law Reports 481).

13.   On 31 March 1992 the above appellant R. brought an application
(no. 20190/92) to the Commission.  The Commission referred his
application (C.R. v. the United Kingdom) to the Court on the same date
as the present case (see paragraphs 1 and 3 above).

C.    The trial of the applicant in the present case

14.   At the commencement of his trial on 16 April 1991, the applicant
submitted that there was no case to answer on the rape charge.  In the
first place, he argued that the trial judge, Mr Justice Rose, should
follow the Court of Appeal's approach in the case of R. v. Steele
([1976] 65 Criminal Appeal Reports 22) and should not consider himself
bound by the 14 March 1991 judgment of that court in R. v. R. in so far
as it purported to change the principle that a husband could not be
found guilty of rape upon his wife.  Secondly, he maintained that the
retrospective effect of the change in the law effected by R. v. R.
should be pronounced incompatible with Article 7 (art. 7) of the
Convention.  He referred, inter alia, to the judgment by the Court of
Justice of the European Communities in R. v. Kent Kirk (European Court
Reports [1984] 2689), dealing with a penal provision in relation to
fishing, which was allegedly imposed retroactively.

15.   With regard to the applicant's first submission, Mr Justice Rose
held on 18 April 1991 that he considered himself bound by the Court of
Appeal's judgment in R. v. R.  He was not persuaded that there was a
conflict between the ratios of that decision and the judgment in R. v.
Steele.  Moreover, the decision in R. v. R. was not reached in
ignorance of R. v. Steele but had regard to the latter.

      With regard to the applicant's second submission, Mr Justice Rose

      "...  I shall assume for the purpose of the present argument that
      the effect of Kirk is via the Treaty of Rome and the decision of
      the [Court of Justice of the European Communities] to render
      Article 7 para. 1 (art. 7-1) part of English law.  However, it
      seems to me that the effect of Article 7 para. 2 (art. 7-2) is
      to prevent reliance by the defendant on Article 7 para. 1
      (art. 7-1).

      Furthermore, ... a succession of cases ... in which the [Court
      of Justice] ... has developed the principle of protection of
      fundamental rights in cases concerning economic and financial
      matters ... it seems to me in so far as they touch upon the
      matter at all, and it is accepted that they do not deal with
      criminal offences of the kind with which I am concerned, no doubt
      preserve the fundamental right of a woman not to have
      non-consensual sexual intercourse forced upon her.

      Furthermore, the nature of the common law, developing as it does
      from judicial decision to judicial decision, but being deemed to
      be always that which it is currently declared to be, is such that
      if Article 7 (art. 7) is part of English law, Article 7 para. 2
      (art. 7-2) is not incompatible with that common law approach.
      Non-consensual sexual intercourse is in English law, as no doubt
      it is in the legal systems of many civilised nations, ... a
      criminal offence.  In so far as there was by the end of the
      19th Century in English law ... a matrimonial exception, that
      matrimonial exception has, particularly over the last 30 or
      40 years, been whittled away by judicial decision to the extent
      that ... it no longer exists.  It seems to me that to say that
      in these circumstances this defendant is in the terms of
      Article 7 para. 1 (art. 7-1) at risk of conviction in relation
      to conduct 'which did not constitute a criminal offence under
      national or international law at the time when it was committed'
      is or would be an abuse of language.  Accordingly, [counsel for
      the applicant's] second submission fails ...  Having regard to
      the conclusions which I have reached ... there is, in my
      judgment, a case to answer."

16.   On 19 April 1991 the applicant was found guilty by the jury of
all three offences (see paragraph 9 above).  He was sentenced to a
total of five years' imprisonment: five years for rape, two years for
making a threat to kill and three months for the offence of assault
occasioning actual bodily harm - the sentences of two years and three
months were expressed to run consecutively to each other but
concurrently with the five-year sentence.

17.   The applicant lodged an appeal against conviction and sentence
in which he repeated the submissions set out in paragraph 14 above.

18.   In view of the House of Lords' ruling of 23 October 1991 in
R. v. R. (see paragraph 12 above) the applicant was advised by his
lawyers on 3 January 1992 that his appeal against conviction offered
no prospect of success.  He therefore withdrew his appeal against
conviction on 15 January 1992.  His appeal against sentence was
dismissed by the Court of Appeal on 30 July 1992.

II.   Relevant domestic law and practice

A.    The offence of rape

19.   The offence of rape, at common law, was traditionally defined as
unlawful sexual intercourse with a woman without her consent by force,
fear or fraud.  By section 1 of the Sexual Offences Act 1956, "it is
a felony for a man to rape a woman".

20.   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 ..."

21.   On 3 November 1994 the Criminal Justice and Public Order Act 1994
replaced the above provisions by inserting new subsections to
section 1 of the Sexual Offences Act 1956, one of the effects of which
was to remove the word "unlawful":

      "1.  (1)   It is an offence for a man to rape a woman or another

           (2)   A man commits rape if - (a) he has sexual intercourse
      with a person ... who at the time of the intercourse does not
      consent to it ..."

B.    Marital immunity

22.   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
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 proposition of
Sir Matthew Hale quoted above (see paragraph 10) has been reaffirmed
until recently, for example in the case of R. v. Kowalski ([1987] 86
Criminal Appeal Reports 339), which concerned the question whether or
not a wife had impliedly consented to acts which if performed against
her consent would amount to an indecent assault.
Mr Justice Ian Kennedy, giving the judgment of the court, stated,

      "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] Criminal Law Reports 188) held:

      "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

23.   However, on 5 November 1990, Mr Justice Simon Brown held in
R. v. C. ([1991] 1 All England Law Reports 755) that the whole concept
of marital exemption in rape was misconceived:

      "Were it not for the deeply unsatisfactory consequence of
      reaching any other conclusion on the point, I would shrink, if
      sadly, from adopting this radical view of the true position in
      law.  But adopt it I do.  Logically, I regard it as the only
      defensible stance, certainly now as the law has developed and
      arrived in the late twentieth century.  In my judgment, the
      position in law today is, as already declared in Scotland, that
      there is no marital exemption to the law of rape.  That is the
      ruling I give."

      On the other hand, on 20 November 1990, in R. v. J. ([1991] 1 All
England Law Reports 759) Mr Justice Rougier upheld the general common
law rule, considering that the effect of section 1 (1) (a) of the
1976 Act was that the marital exemption embodied in Hale's proposition
was preserved, subject to those exceptions established by cases decided
before the Act was passed.  He further stated:

      "... there is an important general principle to be considered
      here, and that is that the law, especially the criminal law,
      should be clear so that a man may know where he stands in
      relation to it.  I am not being so fanciful as to suppose that
      this defendant carefully considered the authorities and took
      Counsel's advice before behaving as alleged, but the basic
      principle extends a long way beyond the bounds of this case and
      should operate to prevent a man being convicted by means of
      decisions of the law ex post facto."

      On 15 January 1991, Mr Justice Swinton Thomas in R. v. S.
followed Rougier J, though he considered that it was open to judges to
define further exceptions.

      Both Rougier and Swinton Thomas JJ stated that they regretted
that section 1 (1) (a) of the 1976 Act precluded them from taking the
same line as Simon Brown J in R. v. C.

24.   In its Working Paper 116 "Rape within Marriage" completed on
17 September 1990, the Law Commission stated:

      "2.8 It is generally accepted that, subject to exceptions
      (considered ... below), a husband cannot be convicted of raping
      his wife ...  Indeed there seems to be no recorded prosecution
      before 1949 of a husband for raping his wife ...


      2.11 The immunity has given rise to a substantial body of law
      about the particular cases in which the exemption does not apply.
      The limits of this law are difficult to state with certainty.
      Much of it rests on first instance decisions which have never
      been comprehensively reviewed at appellate level ..."

      The Law Commission identified the following exceptions to a
husband's immunity:

      - where a court order has been made, in particular:

      (a)  where an order of the court has been made which provides
      that a wife should no longer be bound to cohabit with her husband
      (R. v. Clarke [1949] 33 Criminal Appeal Reports 216);

      (b)  where there has been a decree of judicial separation or a
      decree nisi of divorce on the ground that "between the
      pronouncement of decree nisi and the obtaining of a decree
      absolute a marriage subsists as a mere technicality" (R. v.
      O'Brien [1974] 3 All England Law Reports 663);

      (c)  where a court has issued an injunction restraining the
      husband from molesting the wife or the husband has given an
      undertaking to the court that he will not molest her (R. v.
      Steele [1976] 65 Criminal Appeal Reports 22);

      (d)  in the case of R. v. Roberts ([1986] Criminal Law
      Reports 188), the Court of Appeal found that where a
      non-molestation order of two months had been made in favour of
      the wife her deemed consent to intercourse did not revive on
      expiry of the order;

      - where no court order has been made:

      (e)  Mr Justice Lynskey observed, obiter, in R. v. Miller
      ([1954] 2 Queen's Bench Division 282) that a wife's consent would
      be revoked by an agreement to separate, particularly if it
      contained a non-molestation clause;

      (f)  Lord Justice Geoffrey Lane stated, obiter, in R. v. Steele
      that a separation agreement with a non-cohabitation clause would
      have that effect.

25.   The Law Commission noted that it was stated in R. v. Miller and
endorsed by the Court of Appeal in R. v. Steele that lodging a petition
for divorce would not be sufficient.

      It referred also to the ruling by Mr Justice Owen in the case of
R. v. R. where an implied agreement to separate was considered
sufficient to revoke the immunity and that, even in the absence of
agreement, the withdrawal from cohabitation by either party,
accompanied by a clear indication that consent to sexual intercourse
had been terminated, would operate to exclude the immunity.  It found
this view difficult to reconcile with the approach in Steele that
filing a divorce petition was "clearly" not sufficient.  The ruling in
R. v. R. appeared substantially to extend what had previously been
thought to be the law, although it emphasised that factual separation,
and not mere revocation of consent to intercourse, was necessary to
remove the immunity.

26.   The Law Commission pointed out that its inquiry was unusual in
one important respect.  It was usual practice, when considering the
reform of common law rules, to consider the grounds expressed in the
cases or other authorities for the current state of the law, in order
to analyse whether those grounds were well-founded.  However, that step
was of little assistance here, not only because there was little
case-law on the subject but also, and in particular, because there was
little dispute that the reason set out in the authorities for the state
of the law could not be supported (paragraph 4.1 of the Working Paper).
The basis of the law was that intercourse against the wife's actual
will was excluded from the law of rape by the fictional deemed consent
to intercourse perceived by Sir Mathew Hale in his dictum.  This notion
was not only quite artificial but, certainly in the modern context, was
also quite anomalous.  Indeed, it was difficult to find any current
authority or commentator who thought that it was even remotely
supportable.  The artificial and anomalous nature of the marital
immunity could be seen if it was reviewed against the current law on
the legal effects of marriage (paragraph 4.2).

      The concept of deemed consent was artificial because the legal
consequences of marriage were not the result of the parties' mutual
agreement.  Although the parties should have legal capacity to enter
into the marriage contract and should observe the necessary
formalities, they were not free to decide the terms of the contract;
marriage was rather a status from which flow certain rights or
obligations, the contents of which were determined by the law from time
to time.  This point had been emphasised by Mr Justice Hawkins in
R. v. Clarence (1888) when he said: "The intercourse which takes place
between husband and wife after marriage is not by virtue of any special
consent on her part, but is mere submission to an obligation imposed
on her by law " (paragraph 4.3).

      In this connection, the Law Commission stressed that "[t]he
rights and duties arising from marriage have, however, changed over the
years as the law has adapted to changing social conditions and values.
The more modern view of marriage is that it is a partnership of equals"
(paragraph 4.4).  It then gave examples of such changes in the law and

      "4.11 This gradual recognition of mutual rights and obligations
      within marriage, described in paragraphs 4.3-4.10 above, in our
      view demonstrates clearly that, whatever other arguments there
      may be in favour of the immunity, it cannot be claimed to be in
      any way justified by the nature of, or by the law governing,
      modern marriage."

27.   The Law Commission made, inter alia, the provisional proposal
that "the present marital immunity be abolished in all cases"
(paragraph 5.2 of the Working Paper).


28.   In his application of 29 March 1992 (no. 20166/92) to the
Commission, the applicant complained that, in breach of Article 7
(art. 7) of the Convention, he was convicted in respect of conduct,
namely the rape upon his wife, which at the relevant time did not, so
he submitted, constitute a criminal offence.

29.   The Commission declared the application admissible on
14 January 1994.  In its report of 27 June 1994 (Article 31) (art. 31),
the Commission expressed the opinion that there had been no violation
of Article 7 para. 1 (art. 7-1) of the Convention (eleven votes to
six).  The full text of the Commission's opinion and of the two
separate opinions contained in the report is reproduced as an annex to
this judgment (1).
1.  Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 335-B of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.


30.   At the hearing on 20 June 1995 the Government, as they had done
in their memorial, invited the Court to find that there had been no
violation of Article 7 (art. 7) of the Convention.

31.   On the same occasion the applicant reiterated the request to the
Court stated in his memorial to find that there had been a breach of
Article 7 (art. 7) and to award him just satisfaction under Article 50
(art. 50) of the Convention.



32.   The applicant complained that his conviction and sentence for
rape of his wife constituted retrospective punishment in breach of
Article 7 (art. 7) of the Convention, which reads:

      "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."

33.   The Government and the Commission disagreed with the above

A.    General principles

34.   The guarantee enshrined in Article 7 (art. 7), which is an
essential element of the rule of law, occupies a prominent place in the
Convention system of protection, as is underlined by the fact that no
derogation from it is permissible under Article 15 (art. 15) in time
of war or other public emergency.  It should be construed and applied,
as follows from its object and purpose, in such a way as to provide
effective safeguards against arbitrary prosecution, conviction and

35.   Accordingly, as the Court held in its Kokkinakis v. Greece
judgment of 25 May 1993 (Series A no. 260-A, p. 22, para. 52),
Article 7 (art. 7) is not confined to prohibiting the retrospective
application of the criminal law to an accused's disadvantage: it also
embodies, more generally, the principle that only the law can define
a crime and prescribe a penalty (nullum crimen, nulla poena sine lege)
and the principle that the criminal law must not be extensively
construed to an accused's detriment, for instance by analogy.  From
these principles it follows that an offence must be clearly defined in
the law.  In its aforementioned judgment the Court added that this
requirement is satisfied where the individual can know from the wording
of the relevant provision and, if need be, with the assistance of the
courts' interpretation of it, what acts and omissions will make him
criminally liable.  The Court thus indicated that when speaking of
"law" Article 7 (art. 7) alludes to the very same concept as that to
which the Convention refers elsewhere when using that term, a concept
which comprises written as well as unwritten law and implies
qualitative requirements, notably those of accessibility and
foreseeability (see, as a recent authority, the Tolstoy Miloslavsky v.
the United Kingdom judgment of 13 July 1995, Series A no. 316-B,
pp. 71-72, para. 37).

36.   However clearly drafted a legal provision may be, in any system
of law, including criminal law, there is an inevitable element of
judicial interpretation.  There will always be a need for elucidation
of doubtful points and for adaptation to changing circumstances.
Indeed, in the United Kingdom, as in the other Convention States, the
progressive development of the criminal law through judicial law-making
is a well entrenched and necessary part of legal tradition.
Article 7 (art. 7) of the Convention cannot be read as outlawing the
gradual clarification of the rules of criminal liability through
judicial interpretation from case to case, provided that the resultant
development is consistent with the essence of the offence and could
reasonably be foreseen.

B.    Application of the foregoing principles

37.   The applicant maintained that the general common law principle
that a husband could not be found guilty of rape upon his wife, albeit
subject to certain limitations, was still effective on
18 September 1990, when he committed the acts which gave rise to the
rape charge (see paragraph 8 above).  A succession of court decisions
before and also after that date, for instance on 20 November 1990 in
R. v. J. (see paragraph 23 above), had affirmed the general principle
of immunity.  It was clearly beyond doubt that as at 18 September 1990
no change in the law had been effected, although one was being mooted.

      When the House of Commons debated the Bill for the Sexual
Offences (Amendment) Act 1976 (see paragraph 20 above), different views
on the marital immunity were expressed.  On the advice of the Minister
of State to await a report of the Criminal Law Revision Committee, an
amendment that would have abolished the immunity was withdrawn and
never voted upon.  In its report, which was not presented until 1984,
the Criminal Law Revision Committee recommended that the immunity
should be maintained and that a new exception should be created.

      In 1988, when considering certain amendments to the 1976 Act,
Parliament had the opportunity to take out the word "unlawful" in
section 1 (1) (a) (see paragraph 20 above) or to introduce a new
provision on marital intercourse, but took no action in this respect.

      On 17 September 1990 the Law Commission provisionally recommended
that the immunity rule be abolished (see paragraphs 26-27 above).
However, the debate was pre-empted by the Court of Appeal's and the
House of Lords' rulings in the case of R. v. R. (see paragraphs 11 and
12 above).  In the applicant's submission, these rulings altered the
law retrospectively, which would not have been the case had the Law
Commission's proposal been implemented by Parliament.  Consequently,
he concluded, when Parliament in 1994 removed the word "unlawful" from
section 1 of the 1976 Act (see paragraph 21 above), it did not merely
restate the law as it had been in 1976.

38.   The applicant further argued that in examining his complaint
under Article 7 para. 1 (art. 7-1) of the Convention, the Court should
not consider his conduct in relation to any of the exceptions to the
immunity rule.  Such exceptions were never contemplated in the national
proceedings, Mr Justice Rose having taken his decision in reliance on
the Court of Appeal's ruling of 14 March 1991 in R. v. R. to the effect
that the immunity no longer existed.  Mr Justice Owen's decision of
30 July 1990 in R. v. R., adding implied agreement to terminate consent
to intercourse to the list of exceptions, had not been reported by
18 September 1990 and was not a binding authority.  In any event, the
facts in the present case suggest that no such agreement existed.

39.   Should a foreseeability test akin to that under Article 10
para. 2 (art. 10-2) apply in the instant case, the applicant was of the
opinion that it had not been satisfied.  Although the Court of Appeal
and the House of Lords did not create a new offence or change the basic
ingredients of the offence of rape, they were extending an existing
offence to include conduct which until then was excluded by the common
law.  They could not be said to have adapted the law to a new kind of
conduct but rather to a change of social attitudes.  To extend the
criminal law, solely on such a basis, to conduct which was previously
lawful was precisely what Article 7 (art. 7) of the Convention was
designed to prevent.  Moreover, the applicant stressed, it was
impossible to specify with precision when the change in question had
occurred.  In September 1990, change by judicial interpretation was not
foreseen by the Law Commission, which considered that a parliamentary
enactment would be necessary.

40.   The Government and the Commission were of the view that by
September 1990 there was significant doubt as to the validity of the
alleged marital immunity for rape.  This was an area where the law had
been subject to progressive development and there were strong
indications that still wider interpretation by the courts of the
inroads on the immunity was probable.  In particular, given the
recognition of women's equality of status with men in marriage and
outside it and of their autonomy over their own bodies, the adaptation
of the ingredients of the offence of rape was reasonably foreseeable,
with appropriate legal advice, to the applicant.  He was not convicted
of conduct which did not constitute a criminal offence at the time when
it was committed.

41.   The Court notes that the applicant's conviction for rape was
based on the statutory offence of rape in section 1 of the 1956 Act,
as further defined in section 1 (1) of the 1976 Act (see paragraphs 19
and 20 above).  The applicant does not dispute that the conduct for
which he was convicted would have constituted rape within the meaning
of the statutory definition of rape as applicable at the time, had the
victim not been his wife.  His complaint under Article 7 (art. 7) of
the Convention relates solely to the fact that in deciding on
18 April 1991 that the applicant had a case to answer on the rape
charge, Mr Justice Rose followed the Court of Appeal's ruling of
14 March 1991 in the case of R. v. R. which declared that the immunity
no longer existed.

42.   It is to be observed that a crucial issue in the judgment of the
Court of Appeal in R. v. R. (summarised at paragraph 11 above) related
to the definition of rape in section 1 (1) (a) of the 1976 Act:
"unlawful sexual intercourse with a woman who at the time of the
intercourse does not consent to it".  The question was whether
"removal" of the marital immunity would conflict with the statutory
definition of rape, in particular whether it would be prevented by the
word "unlawful".  The Court of Appeal carefully examined various
strands of interpretation of the provision in the case-law, including
the argument that the term "unlawful" excluded intercourse within
marriage from the definition of rape.  In this connection, the Court
recalls that it is in the first place for the national authorities,
notably the courts, to interpret and apply national law (see, for
instance, the Kemmache v. France (no. 3) judgment of 24 November 1994,
Series A no. 296-C, pp. 86-87, para. 37).  It sees no reason to
disagree with the Court of Appeal's conclusion, which was subsequently
upheld by the House of Lords (see paragraph 12 above), that the word
"unlawful" in the definition of rape was merely surplusage and did not
inhibit them from "removing a common law fiction which had become
anachronistic and offensive" and from declaring that "a rapist remains
a rapist subject to the criminal law, irrespective of his relationship
with his victim" (see paragraph 11 above).

43.   The decisions of the Court of Appeal and then the House of Lords
did no more than continue a perceptible line of case-law development
dismantling the immunity of a husband from prosecution for rape upon
his wife (for a description of this development, see paragraphs 11 and
23-27 above).  There was no doubt under the law as it stood on
18 September 1990 that a husband who forcibly had sexual intercourse
with his wife could, in various circumstances, be found guilty of rape.
Moreover, there was an evident evolution, which was consistent with the
very essence of the offence, of the criminal law through judicial
interpretation towards treating such conduct generally as within the
scope of the offence of rape.  This evolution had reached a stage where
judicial recognition of the absence of immunity had become a reasonably
foreseeable development of the law (see paragraph 36 above).

44.   The essentially debasing character of rape is so manifest that
the result of the decisions of the Court of Appeal and the House of
Lords - that the applicant could be convicted of attempted rape,
irrespective of his relationship with the victim - cannot be said to
be at variance with the object and purpose of Article 7 (art. 7) of the
Convention, namely to ensure that no one should be subjected to
arbitrary prosecution, conviction or punishment (see paragraph 34
above).  What is more, the abandonment of the unacceptable idea of a
husband being immune against prosecution for rape of his wife was in
conformity not only with a civilised concept of marriage but also, and
above all, with the fundamental objectives of the Convention, the very
essence of which is respect for human dignity and human freedom.

45.   Consequently, by following the Court of Appeal's ruling in R. v.
R. in the applicant's case, Mr Justice Rose did not render a decision
permitting a finding of guilt incompatible with Article 7 (art. 7) of
the Convention.

46.   Having reached this conclusion, the Court does not find it
necessary to enquire into whether the facts in the applicant's case
were covered by the exceptions to the immunity rule already made by the
English courts before 18 September 1990.

47.   In short, the Court, like the Government and the Commission,
finds that the Crown Court's decision that the applicant could not
invoke immunity to escape conviction and sentence for rape upon his
wife did not give rise to a violation of his rights under Article 7
para. 1 (art. 7-1) of the Convention.


      Holds that there has been no violation of Article 7 para. 1
      (art. 7-1) of the Convention.

      Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 22 November 1995.

Signed: Rolv RYSSDAL

Signed: Herbert PETZOLD