CONSEIL COUNCIL

DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

COURT (CHAMBER)

CASE OF S.W. v. THE UNITED KINGDOM

(Application no. 20166/92)

JUDGMENT

STRASBOURG

22 November 1995
 S.W. v. THE UNITED KINGDOM JUDGMENT 1

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:

PROCEDURE
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.

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.
2 S.W. v. THE UNITED KINGDOM JUDGMENT

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 3.
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,

3
Case no. 48/1994/495/577.
 S.W. v. THE UNITED KINGDOM JUDGMENT 3

Mr S. GROVES, Solicitor, Adviser.

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

AS TO THE FACTS

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:
4 S.W. v. THE UNITED KINGDOM JUDGMENT

"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 rape."
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.
 S.W. v. THE UNITED KINGDOM JUDGMENT 5

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 concluded:
"... [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.
6 S.W. v. THE UNITED KINGDOM JUDGMENT

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.
 S.W. v. THE UNITED KINGDOM JUDGMENT 7

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
observed:
"... 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
8 S.W. v. THE UNITED KINGDOM JUDGMENT

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 man.

(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, obiter:
"It is clear, well-settled and ancient law that a man cannot, as actor, be guilty of rape
upon his wife."
 S.W. v. THE UNITED KINGDOM JUDGMENT 9

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 it."
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 ...
...
10 S.W. v. THE UNITED KINGDOM JUDGMENT

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.
 S.W. v. THE UNITED KINGDOM JUDGMENT 11

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 added:
"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).
12 S.W. v. THE UNITED KINGDOM JUDGMENT

PROCEEDINGS BEFORE THE COMMISSION

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 4.

FINAL SUBMISSIONS MADE TO THE COURT

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.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 7 (art. 7) 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.

4
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.
 S.W. v. THE UNITED KINGDOM JUDGMENT 13

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
contention.

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 punishment.
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
14 S.W. v. THE UNITED KINGDOM JUDGMENT

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
 S.W. v. THE UNITED KINGDOM JUDGMENT 15

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
16 S.W. v. THE UNITED KINGDOM JUDGMENT

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
 S.W. v. THE UNITED KINGDOM JUDGMENT 17

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.

FOR THESE REASONS, THE COURT UNANIMOUSLY

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.

Rolv RYSSDAL
President

Herbert PETZOLD
Registrar