SW v United Kingdom; CR v United Kingdom
The abolition by the courts of the marital rape exemption did not breach article 7, because it was a reasonably foreseeable development of the law, consistent with the essence of the offence.
Facts
SW and CR were convicted of the rape or attempted rape of their wives. At the time of the offences, the common law had traditionally recognised an exemption which meant that a husband could not be guilty of raping his wife. The House of Lords abolished the exemption in R v R in 1991, holding that it no longer formed part of the law. The applicants argued that their convictions breached article 7, because their conduct was not criminal at the time it was committed.
Legal principle
The European Court of Human Rights held that there had been no violation of article 7. The court said that article 7 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. The courts had progressively narrowed the exemption, and its abolition was a reasonably foreseeable development. Moreover, the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and freedom.
Related cases on slavery, liberty and fair trial (articles 4 to 7)
- Airey v Ireland (1979) 2 EHRR 305
- Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23
- Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564
- Brogan v United Kingdom (1989) 11 EHRR 117
- Gillan v United Kingdom (2010) 50 EHRR 45
- Golder v United Kingdom (1979) 1 EHRR 524
- Guzzardi v Italy (1981) 3 EHRR 333
- Murray v United Kingdom (1996) 22 EHRR 29
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
