Authored By: Ricca Marrieh M. Quinagoran
Middlesex University Dubai
Case name: R v Dica [2004] EWCA Crim 1103.[1]
Court: Court of Appeal (Criminal Division)
Judgement date: 5 May 2004
Parties involved: The Crown against Mohammed Dica (defendant)
Presented before: Lord Woolf CJ, Judge LJ, Forbes J
Counsel: For the appellant, Jeremy Carter- Manning Q.C. and Nicholas Mather (assigned by the Regsitrar of Criminal Appeals.) For the Crown, Mark Gadsden and Heather Stangoe (instructed by the Crown Prosecution Service, Inner London.)
Report citation: [2004] EWCA Crim 1103, [2004] 2 Cr App R 28
FACTS
The case involved a man (the appellant) who was knowledgeable of the fact that he was infected with a sexually transmitted disease (STI) known as HIV since 1995 and was accused of engaging in consensual unprotected sexual intercourse with women without disclosing his status of HIV infection. As a result, the women were infected with HIV. The man was arrested in 2002 and charged on indictment for recklessly inflicting grievous bodily harm (GBH), contrary to Section 20 of the Offences Against the Person Act 1861.[2] The prosecution contended that the man had infected the complainants with HIV and his conduct were deemed to constitute the reckless infliction of GBH. Contrarily, the defence claimed that the complainants were notified of his condition and thus, had provided consent to the risk of contracting the infection by proceeding into sexual intercourse with the man. The initial convictions, where consent was disregarded, were quashed and a new trial was ordered. The appeal was allowed, considering the significance of consent.
ISSUES
The primary issues of this case concerned whether a person who was aware of his infectious condition but proceeded to engage in consensual unprotected sexual intercourse can be found criminally liable of recklessly causing GBH under s.20 of OAPA 1861 through the transmission of a severe disease, significantly HIV, and whether the partner’s consent to the risk of contracting the disease may be a valid argument.
Notably, the following matters are acknowledged within the addressed case:
Informed Consent and the General Consent to Sexual Activities
The principal issue is the matter of consent to sexual intercourse automatically equating to the risk of disease contraction. Consent to sex is frequently believed to suggest consent to the act in question. However, it does not unconditionally imply consent to the risk of contracting STIs such as HIV. This highlights the impact of disclosure towards the legality of sexual consent. In the absence of complete awareness, an individual might engage in sexual affairs with the belief of safety. Contrarily, if the defendant fails to inform the individual regarding their condition, the supposed consent to the risk would be invalidated.
Recklessness and the Defendant’s Knowledge
The concept of recklessness is fundamental to criminal law. In order to be found guilty of recklessly inflicting GBH, the court must consider whether the defendant possessed knowledge regarding the potential harm of their actions. This illustrates the significance of assessing the defendant’s mental state as part of the requirement for recklessness in the context of criminal law. In relevance, the requirement for recklessness includes that the defendant was aware of the potential risk but opted for ignorance.
Distinction between Recklessness and Intentional Transmission
This matter is one of the key issues as it distinguishes between recklessly transmitting the disease and intentionally transmitting the disease. If the scenario were proven to be the latter, the crime would be more serious and thus, address section 18 of OAPA 1861 which underscores the intended infliction of GBH.[3] This distinction is essential in determining the degree of criminal liability as recklessness carries a different legal standard and implications in comparison to intent.
Impact on Public Policy and Bodily Autonomy
Issues of sexual conduct and the contraction of infections often demonstrate tensions between the protection of public health and personal autonomy. Public policy is expected to protect individuals from harm. Contrarily, bodily autonomy provides individuals the liberty to engage in consensual sexual intercourse, and criminalising all unsafe sexual practices may contrast with personal freedoms.
RULE
The law to be focused on within the provided scenario is OAPA 1861, particularly section 20, which explains that anyone who ‘unlawfully’ cause GBH to another individual, regardless of the presence of a weapon, can be found guilty and subject to punishment upon conviction.[4] This statute promotes public safety and illustrates the severity of non-consensual bodily harm. However, there is a lack of a distinct mental element (mens rea) in the context of GBH under s.20, which merely requires foresight of some harm. This is perceived as complex as it induces ambiguity between recklessness and intention conduct, raising concerns regarding the rightfulness in accounting defendants guilty for circumstances they had not genuinely considered as serious.
The principles considered by the court derive from case laws that highlight the significance of legal and ethical concerns regarding consent, public policy, and bodily harm. Additionally, these common laws underscore the impact on disease transmission cases such as the issue in question. These cases include:
R v Clarence (1888) 22 QBD 23.[5]
The case of Clarence structured the legal apprehension of disease transmission, consent, and bodily harm, significantly regarding sexual relationships and criminal accountability under OAPA 1861. The court had a narrow interpretation of what it meant to “maliciously inflict” and assault, asserting that consensual intercourse, regardless of knowledge of disease, was not a criminal offence. The importance of informed consent was minimised and grounded in obsolete spousal consent principles, automating consent within marital relationships. Subsequently, a doctrinally restrictive decision was implemented on criminal liability regarding disease transmission, which was upheld for over a century. In summary, this case followed the principle that consent negates assault despite deception.
R v Brown [1994] 1 AC 212.[6]
The following case of Brown is of high significance within the context of criminal law as it established the limitations of consent when utilised as a defence within cases that involved intentional harm. Moreover, this case addressed the intrusion of criminal law into the private life of individuals. The court held that the defence of consent is not valid when addressing actual or GBH under OAPA 1861, unless it is lawfully recognised such as in matters of medicine or sports. Public policy was prioritised than personal autonomy, illustrating the responsibility for harm prevention, even if consented. The case was controversial since the intrusion of private life was included. Essentially, the case introduced the threshold for harm which measures when the law’s intervention is justifiable.
R v Ireland [1997] QB 114.[7]
The case outlined the extension of legal protection to include psychological harm, recognising that psychiatric illness can constitute actual bodily harm under section 47 of OAPA 1861.[8] This case highlighted the developing apprehension of harm, acknowledging psychological trauma may be equivalent to the severity of physical violence. Relevantly, as part of the act, there had to be an intention or recklessness. Fundamentally, this case demonstrated the court’s intent to adapt 19th century legal frameworks to align with modern knowledge and evolving societal values, ensuring legal protections remain effective.
COURT ANALYSIS
Held
The Court of Appeal (CA) rejected the principles applied in the case of Clarence since there was a distinction between the general consent of sexual intercourse and informed consent to the risk of disease transmission. Following R v Ireland [1998], being reckless in spreading a disease can amount to conviction for causing harm, regardless of the presence of physical violence. Moreover, the principles in the case of Brown were considered, but the court clarified that consensual intercourse is not unlawful when the two individuals engaging in the act were aware of the health risk, unless the Parliament legislates a relevant law. However, the convictions were quashed, and a new trial was ordered as a result of the fact that the judge wrongly removed the concern of consent from the jury, denying the defendant of a fair trial.
Rationale
In the context of STIs, the case of Clarence no longer applied under s.20 of OAPA 1861 since it does not illustrate a modern standard for consent and disease transmission. Significantly, the court asserted that consent for sexual activities without the awareness of a partner’s medical condition does not align with consent to the risk of transmitting the disease. The defendant’s actions were acknowledged to be reckless, which entailed the liability under s.20 regardless of physical contact. Recklessness was considered a principal concern in the context of disease transmission when deciding upon the defendant’s conviction. Furthermore, personal autonomy and decisions on consent to risk were significantly considered, and unless the Parliament decides that these matters are criminal, they remain lawful. Moreover, the order for retrial was based on the fact that the jury should decide on the factual issues regarding the defendant’s recklessness or whether there was consent to the infection risk.
CONCLUSION
In conclusion, the decision by the court demonstrated the application of reckless and consent for s.20 of OAPA 1861, overruling outdated rationales from previous cases such as Clarence. It had been clarified that consent to sexual activities does not align with consent to the risk of contracting an infection, given that the individual does not possess the knowledge of the partner’s condition. Furthermore, the court highlighted that an individual may be convicted for GBH if they are reckless in transmitting diseases such as HIV. This rationale reflects an updated perception of harm and public well-being, balanced with the protection of individual autonomy and legal safeguards. The quashing of the conviction, along with the retrial, ensured an opportunity for a balance analysis of recklessness and informed consent.
SIGNIFICANCE
This case signifies the modernisation of the legal apprehension of liability, reckless, and consent in the context of disease transmission. The CA’s acknowledgement of informed consent, particularly with regards to serious health concerns such as HIV, evolved from the outdated precedent set in the case of Clarence. As a result, this judgement illustrates that the failure to inform a partner regarding the accused’s condition and further exposing them to serious harm is reckless and constitutes the infliction of GBH under s.29 of the OAPA 1861. The case is instrumental in ensuring criminal law reflects modern medical insights and public policy, promoting the reinforcement of individual rights to making informed decisions regarding their health. In addition, this case emphasises that legal safeguards against serious harm considers more than merely physical violence, promoting accountability in close relational contexts and providing a common law for future cases pertaining to the reckless infliction of severe infections without informed consent.
BIBLIOGRAPHY
PRIMARY SOURCES
Legislation:
Offences Against the Person Act 1861
Case Laws:
R v Brown [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
R v Dica [2004] EWCA Crim 1103
R v Ireland [1997] QB 114
[1] R v Dica [2004] EWCA Crim 1103.
[2] Offences Against the Person Act 1861, s 20.
[3] OAPA 1861, s 18.
[4] OAPA 1861, s 20.
[5] R v Clarence (1888) 22 QBD 23.
[6] R v Brown [1994] 1 AC 212.
[7] R v Ireland [1997] QB 114.
[8] OAPA 1861, s 47.
