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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
    1. Entick v Carrington (1765) 19 St. Tr. 1030
    2. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
    3. Liversidge v Anderson and Another [1942] AC 207; [1941] 3 All ER 338
    4. London Tramway Co. v London County Council [1898] AC 375
    5. Harris v Minister of the Interior (no.2) (1952) 4 SA 769; in the Appellate Division of the Supreme Court of South Africa
    6. Collins v Minister of the Interior [1957] 1 SA 552 (AD); in the Appellate Division of the Supreme Court of South Africa.
    7. R v Inland Revenue Commissioners and others, ex parte Rossminster Ltd (CA) [1980] AC 952; [1979] 3 All ER 385
    8. R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 (CA)
    9. Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208
    10. Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)
    11. R v R (Rape: marital exemption) [1991] 4 All ER 481
    12. R v C [2004] EWCA Crim 292: [2004] 3 All ER 1: [2004] 1 WLR 2098 (CA).
    13. Re Spectrum Plus Ltd [2005] UKHL 41; [2005] 4 All ER 209
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v C [2004] EWCA Crim 292: [2004] 3 All ER 1: [2004] 1 WLR 2098 (CA).


[1] This appeal against conviction, brought with leave of the full court, raises a short but interesting point of principle.

[2] Barry C is 58 years old. On 18 April 2002, before Judge Cracknell and a jury in the Crown Court at Kingston-upon-Hull, he was convicted of a number of counts in a 17 count indictment alleging sexual and violent offences against four different women over a 20-year period from 1967 to 1987.

[5] The material facts are straightforward. The appellant and PN were married in 1967, when she was 19 years old. They had two children. There was a history of matrimonial abuse and violence, and the marriage came to an end in 1971. The incident of rape occurred while they were married, after PN had suffered a miscarriage, which led to her admission to hospital. On her return, the appellant wanted to have sexual intercourse with her, when she did not agree. We derive a summary of the incident from the summing up.

'She was weak . . .

I said I didn't want sex but he started hitting me. I had a tampax to control the bleeding but he pulled my knickers off and the tampax came out and he sat there sniffing them. I had to take the tampax out. He carried on hitting me with his feet and hands and his feet. He got me on the floor and raped me on the floor of the living room. He made me feel sick. I didn't agree with sex. He called me "frigid" or a "frigid bitch" and afterwards he said, "If you'd done as you were told it wouldn't have happened."'

[6] That is a sufficient description of the relevant facts. On the victim's account this was a clear case of rape. By its verdict, the jury accepted her evidence and rejected his denial: hence this conviction.

[7] Neither the trial, nor the verdict are impugned. The appeal arises from the trial judge's refusal to stay count 3 as an abuse of process. The argument, persuasively deployed by Mr Marson QC, is simply expressed. In our jurisdiction it was not until the decision of the Court of Appeal in March 1991 in R v R (rape: marital exemption) [1991] 2 All ER 257, [1992] 1 AC 599 that a man could be convicted of raping his wife during the subsistence of a marriage. Before then, in law a woman was deemed to have given irrevocable consent to sexual intercourse with her husband. This count, alleging rape, would not have been treated as an offence of rape at the time when it was committed, nor prosecuted. Therefore it was an abuse of process.......

[9] To sustain his argument, Mr Marson methodically sought to demonstrate the historical basis for his contention that a man could not be convicted of raping his wife while the marriage subsisted, and what he described as the continuing acceptance of this principle, beginning with the decision of Byrne J in R v Clarke [1949] 2 All ER 448. The defendant was charged with raping his wife. Counsel moved to quash the indictment on the basis that it did not reveal an offence known to law. The application failed. A non-cohabitation clause had been made by justices in favour of the wife. That was sufficient to revoke her consent to sexual intercourse. However Byrne J started with what was described as the 'general' proposition that a husband 'cannot be guilty of a rape on his wife'. The proposition was taken from Sir Matthew Hale's Pleas Of The Crown:

'. . . by their mutual matrimonial consent and contract the wife hath given herself in this kind unto her husband, which she cannot retract.'

[10] ...We notice however that this was not a view shared by all the judges in the Crown Cases Reserved in R v Clarence (1888) 22 QBD 23, [1886-90] All ER Rep 133. Even the judgment of Hawkins J, which was most emphatic in its support of this matrimonial 'privilege', acknowledged that it would be unlawful for the privilege to be exercised if the result would be to infect his wife and endanger her health:

'So to endanger to cause her to suffer from loathsome disease contracted through his own infidelity cannot, by the most liberal construction of his matrimonial privilege, be said to fall within it . . . I cannot conceive it possible seriously to doubt that a wife would be justified in resisting by all means in her power, nay, even to the death, if necessary, the sexual embraces of a husband suffering from such contagious disorder.'

[11] We also believe that Hale's proposition would have been pressed to withstand the approach of the Court of Appeal in R v Jackson [1891] 1 QB 671, [1891-4] All ER Rep 61, a decision which we immediately acknowledge was not concerned with the issue of rape in marriage, but with the survival of medieval concepts of the wide general dominion which husbands were entitled to exercise over their wives.

[12] Mrs Jackson refused to live with her husband. He obtained an order for restitution of conjugal rights. She still refused to live with him. His response was to capture her and keep her in confinement in order as he put it, to regain her 'affection'. Lord Halsbury LC was scathingly dismissive of the 'dominion' argument:

'More than a century ago it was boldly contended that slavery existed in England; but, if anyone were to set up such a contention now, it would be regarded as ridiculous. In the same way, such quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in respect of personal chastisement are not, I think, now capable of being cited as authorities in a court of justice in this or any civilised country . . . I only mention the subject because it appears to me that the authorities cited for the husband were all tainted with this sort of notion of the absolute dominion of the husband over the wife . . . I confess to regarding with something like indignation the statement of the facts of this case, and the absence of a due sense of the delicacy and respect due to a wife whom the husband has sworn to cherish and protect.'

[14] In his judgment in R v Jackson, Lord Esher MR was no less forceful than Lord Halsbury:

'A series of propositions have been quoted which, if true, make an English wife the slave, the abject slave of her husband . . . I do not believe that an English husband has by law any such rights over his wife's person, as has been suggested.'

[15] The obstructed development of the common law, and the delayed identification of Hale's proposition as a fiction is readily understood. The issue was never taken to conclusion in a higher court. Faced with a count of rape by a husband on his wife, the court would be invited to quash the count, or to uphold a submission that there was no case for him to answer. If it did, or accepted the submission, the prosecution did not then enjoy any right of appeal. And even if a judge allowed the case to proceed to the jury, it still could not reach the Court of Appeal unless there was a conviction. So, by a series of decisions which did not require the principle to be addressed in this court, a number of exceptions were grafted onto the principle for which Hale provided the untested authority. These included, for example, the existence of a decree nisi (not a decree absolute) R v O'Brien [1974] 3 All ER 663, an undertaking given by the husband not to molest his wife (R v Steele (1976) 65 Cr App R 22), and the existence of a formal deed of separation (R v Roberts [1986] Crim LR 188). In R v Steele we notice that Geoffrey Lane LJ suggested that the wife's deemed matrimonial consent could be eliminated by agreement between the spouses. It was not necessary to decide whether in modern society such an agreement would be inferred from the marriage promises made by each spouse to the other, or whether the agreement might be tacit, either through the development of the marriage, or indeed, as the matrimonial courts long recognised, when the husband married his wife 'tamquam soror'.

[16] These exceptions demonstrated that Hale's unqualified statement that a wife could not retract her consent to sexual intercourse was wrong. At the time perhaps their cumulative significance was not fully appreciated, because in each of the cases in question, the exceptional circumstances enabled justice to be done.

[17] At the same time, another line of authorities demonstrated that even if a wife might be deemed to consent to full sexual intercourse, her husband might nevertheless be found guilty of indecently assaulting her and of assaulting her occasioning actual bodily harm or wounding or inflicting grievous bodily harm. In R v Kowalski (1987) 86 Cr App R 339, the defendant was charged with indecent assault, and assault occasioning actual bodily harm, but not rape of his wife. The precise circumstances do not require repetition. She was forced at knifepoint to fellate him, and then to have sexual intercourse. Dismissing an appeal against conviction for indecent assault, even if it was a preliminary to sexual intercourse, it was held that marriage did not imply consent to fellatio. As it was plainly absent the offence was established. Without a count alleging rape the court did not have to grapple with what then would have been the difficult task of deciding what 'acts in the nature of familiarity or preliminary to sexual intercourse would fall within the shadow of the protection that a wife has against prosecution for rape . . . of his wife'. In R v Miller [1954] 2 All ER 529, [1954] 2 QB 282 it was held that a husband who had forcible sexual intercourse with his wife after she had presented a petition for divorce could not be convicted of rape, but that he could be convicted of occasioning his wife actual bodily harm. Lynskey J reflected a longstanding view that if a husband used force or violence in order to have sexual intercourse with his wife against her will, he would make himself liable, not for rape, but for whatever offence of violence might be appropriate, including wounding, or causing actual bodily harm, or common assault, and that actual bodily harm included 'shock' or 'an injury to [the wife's] state of mind'. It is difficult to imagine any incident of rape which would not at the very least cause some such injury.

[18] We have taken some time to describe the historical development of this issue because Mr Marson forcefully reminded us more than once that the incident with which this conviction is concerned occurred in 1970. [He asks us to] consider what his client would have been told if he had sought legal advice in about 1970. His solicitors would no doubt have warned him that it was morally wrong to force himself on his wife, and that he should not do so, but if they were to give him conscientious advice about the true state of the law, they would have to say that if he raped his wife he would not be committing a criminal offence. This represented the common understanding of the legal position.

[19] We do not agree that this is anything like a complete statement of appropriate legal advice in 1970. The solicitor would have started by pointing out to his client that to rape his wife would be barbaric, and that he would not condone it. He would then have told his client that the courts had developed and could be expected to continue to develop exceptions to the supposed rule of irrevocable consent, and that if ever the issue were considered in this court, the supposed immunity of a husband from a successful prosecution for rape of his wife might be recognised for what it was, a legal fiction. He would in any event also have told his client that depending on the circumstances he might be convicted of indecent assault on his wife, punishable with imprisonment, and would be liable to be convicted of offences of violence ranging from common assault, by putting her in fear of violence, up to and including wounding or causing grievous bodily harm if he injured her in order to force her to have sexual intercourse. Any such offences, too, would be punishable by imprisonment. What is more, in 1970, the solicitor would have had to advise his client that persistent and unreasonable demands for sexual intercourse, if his wife was unwilling, and a single incident of rape, would have enabled her to found a petition for divorce on the grounds of cruelty, or depending on precisely when the incident occurred, his unreasonable behaviour. This conduct would also have entitled her either to a non-molestation order, or a non-cohabitation clause, depending on the jurisdiction in which she sought relief. The solicitor's advice would be that if he raped his wife after that, the supposed immunity would be gone, and he would then certainly be liable for the specific crime of rape. Before such an order, notwithstanding the repetition of Hale's principle in the authorities, he might be liable for rape, probably liable for indecent assault, and certainly liable for the appropriate offence of violence. On this view therefore he would have been told that he could not rape his wife with complete impunity....

[20] Eventually, in 1989 and 1990 the issue of deemed consent was, at last, properly examined in the High Court of Justiciary in Scotland (S v HM Advocate 1989 SLT 469 and this Court in England (R v R). In Scotland, Lord Emslie, the Lord Justice-General, observed that rape had always been essentially a crime of violence and aggravated assault, and doubted whether it was ever contemplated by the common law that a wife 'consented to intercourse against her will and obtained by force'. In R v R, in a constitution of five judges presided over by Lord Lane CJ, sitting with the President, and three other Lord Justices, this court decided with Lord Emslie that-

'The idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health and however proper her objections (if that is what Hale meant) is no longer acceptable. It can never have been other than a fiction, and fiction is a poor basis for the criminal law . . . 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 the victim.'

[21] The House of Lords agreed that a husband was 'criminally liable for raping his wife'. In a speech with which each member of the House agreed, Lord Keith of Kinkel pointed out:

'That part of Hale's proposition which asserts that a wife cannot retract to the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases. On grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times.'

He expressly agreed with Lord Lane CJ's observation that a new offence was not being created, but rather: 'It is the removal of a common law fiction which has become anachronistic and offensive.'

[22] We need not discuss either the 'declaratory' theory of the effect of judicial decision relating to the development of the common law, nor whether by its decision, the House of Lords was retrospectively creating a new offence where none existed before. The stark fact is that R was convicted and S's conviction in Scotland was approved. The decision applied to events that had already taken place, as well as those in the future.

[26] As a man may properly be convicted today of having raped his wife before the fiction of deemed consent was finally dissipated in March 1991, it cannot be said that a prosecution for rape must be deemed to be an abuse of process. There may, of course, be other well-known grounds for a successful application for the proceedings to be stopped, and in any event the proceedings will not start unless there is a reasonable prospect of a successful prosecution. This appellant knew perfectly well that to rape his wife was wrong, and that his marriage certificate did not entitle him to force his unwanted sexual attentions on her, nor did he suggest that he believed that he would be immune from prosecution if he did so. There was nothing particular about the facts of this case which would have justified an order to stop it. Accordingly, the decision of the judge was right, and this appeal must be dismissed.