B e f o r e :
(LORD JUSTICE LATHAM)
MR JUSTICE HENRIQUES
MRS JUSTICE GLOSTER DBE
|R E G I N A|
Smith Bernal Wordwave Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS G ETHERTON appeared on behalf of the CROWN
Crown Copyright ©
"It seems to me that in due course when this jury has to consider this question of whether or not the complainant consented, or, alternatively whether the defendant had any reasonable belief that she was consenting, the jury are going to have to be told of that statutory definition in section 74. [That is of the Sexual Offences Act 2003]. It seems to me, furthermore, that that definition involves the person whose consent is being considered being in a position to be able to make a reasoned choice in the matter, and for such a person to be in that position that person has to be put in possession of all relevant facts, and a relevant fact is the prospect that he or she might, by dint of sexual intimacy, become infected with HIV thereafter. The Crown has argued if the defence seek to raise the issue of consent then they must in effect, take on all the consequences of that, including that statutory definition."
He held that the fact that the appellant had not informed the complainant of his HIV status was a matter that the jury was entitled to take into account when determining whether or not she had, in truth, consented on the one hand, on that he had a reasonable belief in her consent on the other.
"HIV positive, you know he was thus diagnosed; that diagnosis was made in September 2001, and again I would suggest you must not let that prejudice against the defendant, it certainly does not prove that he is guilty of rape. Its relevance, I would suggest to you, is two-fold. Firstly, when you are considering whether [the complainant] consented to intercourse you will need to consider whether she had the freedom and capacity to make the choice as to whether to have intercourse with this man if she did not know he was HIV positive, and secondly, you may want to consider whether a man who knows he is HIV positive is the more or less likely to ask a woman for consent to intercourse. In considering whether or not this defendant reasonably believed that [the complainant] was consenting to sex you must look at all the circumstances, including what steps the defendant took to ascertain whether she, in fact, consented."
"For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Then, section 75 provides for evidential presumptions about consent. None of the matters set out in section 75 are of direct relevance to the issue in this case. Section 76, however, deals with conclusive presumptions about consent; and the relevant presumptions are in subsection (2), which provides as follows:
"The circumstances are that-
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant consent to the relevant act by impersonating a person known personally to the complainant."
13. The appellant's counsel point out that nowhere in those relevant sections is there any reference to implied deceptions, nor to behaviour relating to or in the context of sexually transmissible diseases. He submits that that reflects the state of the law prior to 2003, namely that, when considering the question of whether or not in certain circumstances such as this the complainant has consented or not to the sexual activity, the question of implied deceptions can have little relevance. He submits that the 2003 Act does not purport to change the law in that respect.
"In our view, on the assumed fact now being considered, the answer is entirely straightforward. These victims consented to sexual intercourse. Accordingly, the appellant was not guilty of rape. Given the long-term nature of the relationships, if the appellant concealed the truth about his condition from them, and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection, and they were not consenting to it. On this basis, there would be no consent sufficient in law to provide the appellant with a defence to the charge under s 20."
It seems to us that Mr Mackinnon's submissions based upon that paragraph in that judgment were correct. That judgment reflects the present legal position and nothing in the 2003 Act has, in our view, changed the position.