Rape - defendant convicted in 2002 for raping his wife in 1970 - defendant's convention rights not infringed

R v Crooks: CA (Lord Justice Judge, Mr Justice Nelson and Mr Justice McCombe): 18 March 2004

The defendant married in 1967.

There was a history of matrimonial abuse and violence, and the marriage came to an end in 1971.

In 2002, the defendant was convicted of a number of sexual and violent offences, including the rape of his wife in 1970, the judge having refused to stay the count of rape as an abuse of process.

He appealed against the conviction of rape on the grounds that the judge's ruling was wrong because it was not until the decision of the Court of Appeal in March 1991 in R v R [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, and the trial therefore contravened article 7(1) of the European Convention on Human Rights.

Geoffrey Marson QC (assigned by the Registrar of Criminal Appeals) for the defendant; Andrew Campbell QC (instructed by the Crown Prosecution Service, Kingston-upon-Hull) for the Crown.

Held, dismissing the appeal, that R v R had removed a common law fiction, which had become anachronistic and offensive; that that decision applied to events that had already taken place, as well as those in the future; and that, accordingly, a man might properly be convicted of raping his wife even if the incident occurred before the fiction of deemed consent was finally dissipated in 1991, and the prosecution of this defendant for rape did not infringe his rights under the convention.