EB, R. v

Non-disclosure by a person with a sexually transmissible disease does not, without more, vitiate the other person's consent to sexual intercourse under section 74 of the Sexual Offences Act 2003. Consent to intercourse may remain effective, although it does not extend to the risk of infection for the purposes of an offence causing harm.

Accordingly, evidence of an accused's undisclosed HIV status is irrelevant to consent in a rape trial. Where it is also highly prejudicial, it should be excluded under section 78 of the Police and Criminal Evidence Act.

The appellant was convicted of rape on 7 February 2006, sentenced to 11 years' imprisonment and recommended for deportation. He appealed against conviction with leave of the Single Judge.

The prosecution alleged non-consensual intercourse. The appellant maintained that the complainant consented. At trial, the judge admitted evidence that the appellant knew he was HIV positive but had not disclosed that fact to the complainant. The jury was directed that this could bear on both consent and the appellant's reasonable belief in consent.

The central issue was whether non-disclosure of HIV status could vitiate consent under section 74 of the Sexual Offences Act 2003, or otherwise make the evidence admissible in the rape trial.

1. Appeal allowed. The conviction was quashed because the appellant's HIV status was wrongly admitted and left with the jury.

2. The court followed R v Dica [2004] 2 Cr App R 28. A person who consents to sexual intercourse does not, merely because the other party has not disclosed a sexually transmissible disease, lose consent to the sexual act. The consent does not, however, extend to infection. It therefore cannot provide a defence to a charge for harm caused by infection.

3. Section 74 of the Sexual Offences Act 2003 did not alter that position. Sections 75 and 76 did not support an implied deception arising solely from non-disclosure of HIV status. Any wider criminalisation of undisclosed sexually transmissible disease was a matter for public and social policy rather than an extension of rape law by the court.

4. The appellant's HIV status was consequently irrelevant to whether the complainant consented. It could not support the suggested inquiry into his reasonable belief in consent. In any event, its prejudicial effect required its exclusion under section 78 of the Police and Criminal Evidence Act.

5. The court ordered a retrial on a fresh single-count indictment for rape, with re-arraignment within two months. The appellant was to remain in custody pending retrial. The case was anonymised and reporting restrictions were imposed.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the rape conviction and ordered a retrial: [2006] EWCA Crim 2945.
• Trial court — convicted the appellant of rape on 7 February 2006, imposed 11 years' imprisonment and recommended deportation. No citation is stated in the judgment.