HM Advocate v Paxton

Judgment Date13 August 1984
Docket NumberNo. 15.
Date13 August 1984
CourtHigh Court of Justiciary


Lord Cameron and a jury.

No. 15.

Crime—Rape—Alleged rape by a husband of his wife—Spouses living apart without legal separation and meeting socially on a regular basis—Whether sufficient to revoke implied surrender by wife to husband—Competency.

An accused was charged on indictment with the rape of his wife. At his trial the prosecutor led evidence that there was no legal or formal separation of the parties and that they met regularly for social outings. They exchanged kisses in the accused's car before parting on these occasions. At the end of the evidence for the prosecutor it was submitted on behalf of the accused, in terms of sec. 140A of the Criminal Procedure (Scotland) Act 1975, that there was no case for him to answer in that a charge of rape was not competent on these facts.

Held (1) that by entering into the legal state of marriage there is by implication a "surrender" by the wife to the husband so that the latter cannot commit rape upon her but where it is admitted that the parties are not living at bed and board this voluntary surrender has been recalled.

(2) That where a husband, in these circumstances, overcomes the resistance of his wife by means which would otherwise warrant a conviction for rape he is guilty of that crime; and submissionrepelled.

John William Paxton was charged in the High Court in Edinburgh on indictment with the rape of his wife. After evidence had been led by the advocate-depute it was submitted on his behalf that there was no case for him to answer on that charge in terms of section 140A of the Criminal Procedure (Scotland) Act 1975.

After legal debate the trial judge, Lord Cameron, delivered the following opinion in repelling the submission.

LORD CAMERON:—[His Lordship dealt first with another ground for the same submission with which this report is not concerned.]

There remains what Mr Macaulay called the question of competency. Put shortly it came to this. The indictment charges rape on a woman of the same name as the panel. It is not libelled in the indictment that the panel is the husband of the complainer, while the domicile of citation and the address of the complainer are stated to be different. The complainer in evidence deponed that she is the wife of the panel and that they are still legally married. This evidence was not challenged. On these simple and unchallenged facts Mr Macaulay submitted that the proceedings under this indictment were manifestly and...

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1 cases
  • R v R [1991]
    • United Kingdom
    • House of Lords
    • 23 October 1991
    ...considered the supposed marital exemption in rape in that country. In two earlier cases, H.M. Advocate v. Duffy 1983 S.L.T. 7 and H.M. Advocate v. Paxton 1985 S.L.T. 96 it had been held by single judges that the exemption did not apply where the parties to the marriage were not cohabiting. ......
2 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill How Judges Decide Cases: Reading, Writing and Analysing Judgments. 2nd Edition Contents
    • 29 August 2018
    ...v Duffy 1983 SLT 7, HCJ 5, 6 xx How Judges Decide Cases: Reading, Writing and Analysing Judgments HM Advocate v Paxton 1985 SLT 96, 1984 JC 105, 1984 SCCR 311, HCJ 5, 6 Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, [1998] 2 All ER 673, (1998) 41 BMLR 1, CA 124 Howard v Walker [1947] KB ......
  • Law, Patriarchies, and State Formation in England and Post‐Colonial Hong Kong
    • United Kingdom
    • Wiley Journal of Law and Society No. 28-2, June 2001
    • 1 June 2001
    ...Lacey, C. Wells, and D. Meure, Reconstructing the Criminal Law (1990)332.46 HM Advocate v. Duffy [1983] SLT 7 and HM Advocate v. Paxton [1984] JC 105;New Law J., 13 January 1984, cited in Edwards, op. cit., n. 14, p. 194. Why Scotland,given its tradition of clans, took a more radical approa......

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