SW v The United Kingdom; CR v United Kingdom: ECHR 22 Nov 1995

Criminal Law Change not retrospective

The law that marital rape was an offence, was not to be treated as retrospective despite being a common law change. The Court rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of the concept of rape as had been previously understood.
Held: ‘It is however compatible with the requirements of Article 7(1) for the existing elements of an offence to be clarified or adapted to new circumstances or developments in society in so far as this can reasonably be brought under the original concept of the offence. The constituent elements of an offence may not however be essentially changed to the detriment of an accused and any progressive development by way of interpretation must be reasonably foreseeable to him with the assistance of appropriate legal advice if necessary.’ and ‘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 lawmaking is a well-entrenched and necessary part of legal tradition. Article 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 resulting development is consistent with the essence of the offence and could reasonably be foreseen.’ and the decision of the House of Lords withdrawing the husband’s immunity was no more than continuing ‘a perceptible line of case law development’ which had ‘reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law.’

Times 05-Dec-1995, [1995] 21 EHRR 363, 20166/92, [1995] ECHR 52
Worldlii, Bailii
European Convention on Human Rights 7
Human Rights
CitedRegina v R HL 23-Oct-1991
H has no right to sexual intercourse with W – rape
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . .

Cited by:
CitedRegina v Hobbs, Hobbs, Hobbs, Charge CACD 14-Feb-2002
The defendants appealed sentences of 7.5 and 3 years for conspiracy to facilitate illegal immigration. They had hired lorries with a view to bringing people in It was submitted that the sentences were outside the powers under the Act. The sentence . .
Not fully informedRegina v Crooks CACD 18-Mar-2004
The defendant appealed against a conviction in 2002 for the rape of his wife in 1970. He said that at the time that was not an offence.
Held: The words which at one point appeared to make rape of a wife lawful were a mere technicality. The . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedRegina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.165394