Dica, R. v

For an offence under section 20 of the Offences Against the Person Act 1861, grievous bodily harm may be inflicted without an assault or direct physical violence. Reckless transmission of a serious sexually transmitted disease through consensual intercourse may therefore fall within the section.

Consent to intercourse is not, without more, consent to the risk of infection. Concealment of a known serious disease may leave the other participant without any legally effective consent to that risk. Conversely, a person who knowingly consents to the risk of infection has a defence under section 20. Recklessness and consent remain factual, case-specific questions for the jury.

The appellant was convicted at Inner London Crown Court of two offences under section 20 of the Offences Against the Person Act 1861, after two former sexual partners were diagnosed HIV positive. The prosecution alleged that he knew of his own HIV status and recklessly infected them during unprotected intercourse. It did not allege rape or deliberate infection.

The trial judge held that R v Clarence (1889) 22 QB 23 did not prevent conviction, but also ruled that any consent by the complainants was irrelevant under R v Brown & ors [1994] 1 AC 212. The appellant appealed against conviction and sentence. The central issue was whether consent to a known risk of HIV infection could provide a defence to a section 20 charge.

1. Appeal allowed and retrial ordered. The trial judge was right to hold that section 20 of the Offences Against the Person Act 1861 could apply to reckless transmission of HIV. He was wrong, however, to withdraw the issue of consent from the jury.

2. The reasoning in R v Clarence (1889) 22 QB 23 no longer governed section 20. Later authority, especially R v Wilson (Clarence) [1984] AC 242 and R v Ireland: R v Burstow [1998] 1 CAR 177, established that section 20 does not require an assault or direct or indirect physical violence. If the remaining elements are proved, physical injury caused by disease may be inflicted for the purposes of the section.

3. A complainant who agrees to sexual intercourse while ignorant of the defendant’s serious infectious condition does not thereby consent to the risk of infection. The distinction between consent to an act and consent to its concealed harmful feature was supported by R v Tabassum [2000] 2 CAR 328 and R v Cort [2003] 3 WLR 1300.

4. Conversely, an adult who knows of the risk and nevertheless consents to sexual intercourse may consent to that risk. The public-policy rule in R v Brown & ors [1994] 1 AC 212, concerning deliberate serious violence for sexual gratification, did not make consensual intercourse unlawful merely because a participant knowingly ran a risk of disease. Parliament, rather than the courts, would have to extend criminal liability to consensual risk-taking of that kind.

5. The ultimate question is consent, not knowledge alone. In every case, both recklessness and consent to the risk are questions of fact. The court added, obiter, that consent would not defend deliberate infection intended to cause grievous bodily harm under section 18.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and ordered a retrial: [2004] EWCA Crim 1103.
• Inner London Crown Court: On 14 October 2003, the appellant was convicted by HHJ Philpot and a jury of two section 20 offences and sentenced to consecutive terms totalling eight years’ imprisonment.