Konzani, R v

For an offence under Offences Against the Person Act 1861, section 20, consent to sexual intercourse does not itself amount to consent to the risk of HIV infection. Consent is a defence only where the sexual partner has given informed consent to that specific risk.

A defendant who knows of, but conceals, HIV status will ordinarily be unable to rely on either informed consent or an honest belief in it. An honest belief assists only if it concerns consent which, if given, would provide a defence. Exceptionally, knowledge obtained independently of the defendant may provide an evidential basis for informed consent or an honest belief in it.

The appellant knew that he was HIV positive and had unprotected sexual intercourse with three women without telling them of his condition. Each contracted HIV. He admitted recklessness and the infliction of grievous bodily harm, but contended that the complainants’ consent to unprotected intercourse implied consent to the risk of HIV infection.

At the Crown Court at Teesside, he was convicted on three counts contrary to section 20 of the Offences Against the Person Act 1861 and received consecutive custodial sentences. He appealed against conviction and sentence. The central issue was whether consent to intercourse, and any asserted honest belief in consent, provided a defence to reckless transmission of HIV.

1. The court dismissed the appeal against conviction. The trial judge correctly directed the jury that the prosecution had to prove the absence of willing and conscious consent to the risk of HIV infection. The jury were entitled to find that consent to intercourse was not informed consent to that specific risk.

2. R v Dica [2004] EWCA Crim 1103 established that informed consent may provide a defence where a sexual partner knows of the defendant’s HIV status and nevertheless accepts the risk. The court confirmed that the partner’s knowledge, rather than disclosure by the defendant personally, is what makes consent capable of being informed. A defendant who conceals the condition will usually have deceived the partner and cannot realistically assert informed consent.

3. An honest belief in consent is relevant only where the believed consent would itself be a valid defence. There was no evidence from which the jury could infer that the appellant honestly believed that any complainant consented to the specific risk of infection. The court accepted that unusual facts, such as a partner’s independent knowledge of the condition, could require the issue to be left to a jury. No such facts arose here.

4. The mental element under section 20 was recklessness in the R v Cunningham [1957] 2 QB 396 sense: foresight that bodily harm might result and a decision to take that risk. Recklessness was admitted.

5. The court also rejected the sentence appeal. A victim’s compassion or wish for leniency should not normally determine sentence. The individual sentences and their aggregate were neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction and held that the sentences were neither manifestly excessive nor wrong in principle.
• Crown Court at Teesside On 14 May 2004, convicted the appellant of three counts under section 20 of the Offences Against the Person Act 1861 and imposed consecutive custodial sentences.