R v Dica [2004] EWCA Crim 1103
The Court of Appeal held that reckless transmission of HIV through consensual intercourse could amount to inflicting grievous bodily harm under section 20 of the Offences Against the Person Act 1861. Consent to intercourse did not automatically establish consent to the risk of infection. However, consent to that risk could provide a defence, and the trial judge had wrongly prevented the jury from considering it.
The prosecution and the disputed facts
Mohammed Dica was convicted at Inner London Crown Court on 14 October 2003 of two section 20 offences. He received consecutive sentences totalling eight years. He had been told in December 1995 that he was HIV positive, and both complainants were subsequently diagnosed with HIV.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The prosecution alleged that Dica knew of his condition and was reckless about transmitting the infection during consensual intercourse. It did not allege rape or that he deliberately intended to infect either woman. Intercourse had been unprotected on at least most occasions. The court noted that protective measures, if taken, would have been relevant evidence when deciding whether recklessness was proved.
Both complainants maintained that they had not known of Dica’s condition and would not have agreed to intercourse if they had. His account was that he had told them and that they nevertheless agreed. This was a disputed factual issue, not a finding that the Court of Appeal made in his favour.
The trial judge’s two rulings
At the end of the prosecution case, Judge Philpot made two distinct rulings. First, a conviction under section 20 was legally possible despite R v Clarence (1889) 22 QB 23. Secondly, relying on R v Brown, he held that any consent to the risk was legally irrelevant: the complainants lacked the capacity to consent to such serious harm.
Following the second ruling, Dica did not give evidence, and the jury was not asked whether the women knew of his condition and consented to the risk. His appeal challenged both rulings. Lord Justice Judge delivered the Court of Appeal’s judgment on 5 May 2004.
Why section 20 could cover infection
In Clarence, a husband who knew he had gonorrhoea infected his wife, who did not know of his condition. The majority quashed convictions under sections 20 and 47. Their reasoning rested partly on the supposed requirement of an assault for section 20, a distinction between immediate violence and delayed infection, and the historical assumption that a wife consented to intercourse with her husband.
The Court of Appeal explained that intervening authorities had undermined these foundations. R v R rejected the fiction of irrevocable marital consent. R v Wilson established that section 20 did not require an assault. R v Chan-Fook, followed by R v Ireland and R v Burstow, recognised that bodily harm could include psychiatric injury and could be inflicted without physical violence.
It was therefore no answer to a section 20 charge that infection was a delayed consequence of intercourse rather than an immediate injury caused by a blow. The court held that Clarence no longer prevented prosecution for reckless transmission of a serious sexually transmitted disease. The trial judge’s first ruling was correct.
Consent to intercourse and consent to infection risk
The second ruling was wrong. The court considered separately the prosecution’s account of concealment and Dica’s account of disclosure. On the assumed prosecution facts, the women’s agreement to intercourse did not mean that they accepted the concealed risk of HIV infection. Consent to one activity did not necessarily extend to that additional consequence.
If, instead, they knew of Dica’s condition and consented to the risk, that could provide a defence. The Crown accepted on appeal that this possibility should not have been withdrawn from the jury. The Court of Appeal expressly left the factual question unresolved.
Brown concerned consensual violence and deliberate injury. It did not establish that intercourse became unlawful whenever participants knowingly accepted a health risk. The court distinguished an intention to cause serious harm from willingness to run a risk that harm might occur. It illustrated the distinction with couples who knowingly accepted risks associated with HIV or pregnancy.
The court considered that criminalising the consensual acceptance of such risks would intrude extensively into personal autonomy and private relationships. A change of that kind was for Parliament. It nevertheless held that section 20 could apply where someone who knew of a serious infection recklessly transmitted it to a person who had not consented to the risk.
Knowledge and consent were closely connected, but the ultimate question was consent. Whether the defendant was reckless and whether the other person consented were questions of fact for the particular case. The court separately observed that deliberate infection with intent to cause grievous bodily harm would engage section 18 and the restriction on consent identified in Brown; that was not the allegation against Dica.
Outcome
The appeal was allowed and a retrial ordered because the jury should have considered consent. The court did not acquit Dica on a finding that the complainants had accepted the risk. It also did not address the sentence appeal, given its decision to order a retrial.
