having relied on reasonable chastisement in the circumstances. The court concluded that there had been a violation of Art 3 on the basis that existing domestic law on the defence of lawful chastisement had failed to provide the applicant with adequate protection. Whilst the question of whether, in any given case, the treatment suffered by an applicant reached the minimum level of severity necessary to trigger the operation of Art 3 would depend on the circumstances, where the victim was a child the minimum threshold would be more easily attained. It should be noted that, whilst the court accepted that the United Kingdom could not be held responsible for the actions of a private individual, such as the applicant’s stepfather, it was responsible for a system of criminal law that allowed a person inflicting serious harm upon a child to be acquitted on the grounds that the harm was justifiable chastisement. There has been no legislative response to this decision, but the courts have attempted to alleviate the shortcomings of the domestic law by offering guidelines on the availability of the defence; see RvH (Reasonable Chastisement) (2001) The Times, 18 May. Where a parent raises the defence of lawful chastisement the jury ought to be directed to consider: (i) the nature and context of the defendant’s behaviour; (ii) the duration of that behaviour; (iii) the physical and mental consequences in respect of the child; (iv) the age and personal characteristics of the child; (v) the reasons given by the defendant for administering the punishment. Article 7: Non-retrospectivity

ABSTRACT

This is, however, foresight of a somewhat special sort. The accretion of exceptions to the marital rape exemption might on one view be described as an evolution [that] had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law; but might equally have been thought to indicate that the basic exemption, on which the complainant in SW v United Kingdom relied, remained intact and could only be altered by legislation. That was certainly the view of the Law Commission, which published a working paper on rape within marriage shortly before the matter came to a head

in the courts, and of a number of first instance judges who, however reluctantly, had seen themselves as bound by the rule. While hesitating to appeal here to Lord Simonds’ famous comparison of foresight and hindsight, if one posits an (admittedly unlikely) visit to his solicitor by Mr R to ask for advice about trying to have intercourse with his wife, it is far from clear that he would have been told with any confidence that (whatever else might be said about his conduct) he was facing a criminal conviction and a sentence of three years’ imprisonment.