Lord Keith of Kinkel:

My Lords, in this appeal to the House with leave of the Court of Appeal (Criminal Division) that court has certified the following point of law of general public importance as being involved in its decision, namely: "Is a husband criminally liable for raping his wife?"

The appeal arises out of the appellant's conviction at Leicester Crown Court on 30 July 1990, upon his pleas of guilty, of attempted rape and of assault occasioning actual bodily harm. The alleged victim in respect of each offence was the appellant's wife. The circumstances of the case were these. The appellant married his wife in August 1984 and they had one son born in 1985. On 11 November 1987 the couple separated for about two weeks but resumed cohabitation at the end of that period. On 21 October 1989 the wife left the matrimonial home with the son and went to live with her parents. She had previously consulted solicitors about matrimo- nial problems, and she left at the matrimonial home a letter for the appellant informing him that she intended to petition for divorce. On 23 October 1989 the appellant spoke to his wife on the telephone indicating that it was his intention also to see about a divorce. No divorce proceedings had, however, been instituted before the events which gave rise to the charges against the appellant. About 9 p.m. on 12 November 1989 the appellant forced his way into the house of his wife's parents, who were out at the time, and attempted to have sexual intercourse with her against her will. In the course of doing so he assaulted her by squeezing her neck with both hands. The appellant was arrested and interviewed by police officers. He admitted responsibility for what had happened. On 3 May 1990 a decree nisi of divorce was made absolute.

The appellant was charged on an indictment containing two counts, the first being rape and the second being assault occasioning actual bodily harm. When he appeared before Owen J. at Leicester Crown Court on 30 July 1990 it was submitted to the judge on his behalf that a husband could not in law be guilty as a principal of the offence of raping his own wife. Owen J. rejected that proposition as being capable of exonerating the appellant in the circumstances of the case. His ground for doing so was that, assuming an implict general consent to sexual intercourse by a wife on marriage to her husband, that consent was capable of being withdrawn by agreement of the parties or by the wife unilaterally removing herself from cohabitation and clearly indicating that consent to sexual intercourse had been terminated. On the facts appearing from the depositions either the first or the second of these sets of circumstances prevailed. Following the Judge's ruling the appellant pleaded guilty to attempted rape and to the assault charged. He was sentenced to three years' imprisonment on the former count and to eighteen months imprisonment on the latter.

The appellant appealed to the Court of Appeal (Criminal Division) on the ground that Owen J.:

made a wrong decision in law in ruling that a man may rape his wife when the consent to intercourse which his wife gives in entering the contract of marriage has been revoked neither by order of a court nor by agreement between the parties.

On 14 March 1990 that court (Lord Lane CJ, Sir Stephen Brown P, Watkins, Neill and Russell L.JJ.) delivered a reserved judgment dismissing the appeal but certifying the question of general public importance set out above and granting leave to appeal to your Lordships' House, which the appellant now does.

Sir Matthew Hale, in his History of the Pleas of the Crown [1736] vol. 1, ch. 58 p. 629, wrote:

But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.

There is no similar statement in the works of any earlier English commentator.