No: 200601453/C1 
Neutral Citation Number: [2006] EWCA Crim 2945
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 16th October 2006
 
B E F O R E:
 
THE VICE PRESIDENT 
(LORD JUSTICE LATHAM) 
 
MR JUSTICE HENRIQUES 

MRS JUSTICE GLOSTER DBE  
 
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R E G I N A 

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MR T MACKINNON appeared on behalf of the APPELLANT 
MISS G ETHERTON appeared on behalf of the CROWN
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J U D G M E N T 

1.	THE VICE PRESIDENT:  On 7th February 2006, this appellant was convicted of rape and subsequently sentenced to 11 years' imprisonment and recommended for deportation.  He appeals against conviction with leave of the Single Judge.
2.	The facts giving rise to the charge of which this appellant was ultimately convicted occurred on the night of 1st April 2005, after the complainant had been to a club with some friends.  
3.	Some time after 2.00 am she was walking home alone when she saw the appellant and others standing at a bus stop.  He was wearing a fluorescent neck band.  The complainant collected fluorescent bands of various sorts; so she approached him and asked him if she could have it.  He gave it to her and then walked with her to a street nearby.  There is no doubt that in that area they subsequently had sexual intercourse.
4.	The prosecution case was that that intercourse was entirely without the complainant's consent.  She had been subjected to a prolonged assault, which ultimately resulted in her being subjected to vaginal intercourse.  At no stage, on her account, did she consent to that sexual activity.  It is unnecessary for the purposes of this judgment to go into any further detail about the events of that evening as recounted by the complainant.  If she was right, this was a dreadful assault.
5.	The appellant's account was that there had been sexual intercourse; and that the complainant had consented.  There were witnesses of the event, some who had more to say about it than others; but, in particular, there were two witnesses called by the appellant whose accounts, if they were accurate and represented a true reflection of what had happened, were capable of supporting the appellant's evidence.
6.	The jury, having heard all the evidence, by its verdict clearly rejected the appellant's account.
7.	The issue before us arises out of the fact that this appellant is HIV positive.  That was established in 2001; and he knew about his HIV status.  Even on his own account he did not inform the complainant about his HIV status.  In those circumstances, prosecuting counsel sought to put in evidence before the jury the appellant's HIV status.  The defence objected on the grounds that it was irrelevant and, even if it had any relevance, was so prejudicial that it should have been excluded under section 78 of the Police and Criminal Evidence Act.
8.	The judge, ruling that the evidence was admissible, and that he was not prepared to exclude it under section 78, said as follows as to the critical part of the argument: 
"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.
9.	It was in those circumstances that the evidence was led before the jury.  Ultimately, in directing the jury, the judge had the following to say about the relevance of that evidence, at page 16 of the summing-up:  
"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." 
10.	On behalf of the appellant, Mr Mackinnon submits, as he submitted to the judge, that the HIV status of the appellant was irrelevant to the issues before the jury; the judge's ruling and his direction to the jury were wrong in law.
11.	Dealing, firstly, with the issue as to whether or not the fact of the appellant's HIV status was relevant to the question of whether or not the complainant consented, as the prosecution had to establish she did not, to the intercourse in question, the relevant sections are section 74, 75 and 76 of the 2003 Act.  
12.	Section 74 is in the following terms: 
"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.
14.	The position, he submits, is best exemplified by this Court's consideration of the problem presented by the transmission of HIV in sexual intercourse in the case of the R v Dica [2004] 2 Cr App R 28, 467.  In that case the charge against the defendant was a charge under section 20 of the Offences Against the Person Act 1861.  The complainant had had unprotected sexual intercourse, as in the present case, with the defendant, who was to his knowledge HIV positive.  Unhappily, the consequence was that was they became infected by HIV.
15.	The prosecution case was that whatever might have been the position as far as any sexual offence was concerned, if the complainants were not aware of the defendant's HIV states and therefore had not consented to the risk of being infected, that would amount to an offence under section 20 of the Offences against the Person Act 1861.
16.	In the judgment of the Court in that case, at paragraph 39, agreeing with the prosecution, Judge LJ said as follows:  
"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. 
17.	Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated.  The act remains a consensual act.  However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease.
18.	This problem is one which has been recognised, not surprisingly, for many years.  In its Second Consultation Paper Relating to Sexual Offences, in 1995, the Law Commission acknowledged that there was a case for treating a deception as to a person's HIV status or freedom from other sexually transmissible disease as being of such fundamental importance that it should nullify consent.  However, in its ultimate review, in 2000, the Commission felt that the right solution to these issues was a delicate matter requiring expertise in public health and social policy rather than the law.  In our judgment, that conclusion, which is reflected in paragraph 1.55 of Rook and Ward On Sexual Offences Law and Practice (3rd edition), in which this Court should support.  
19.	As has been indicated in an article by Professor Tempkin and Professor Ashworth, in the 2004 Criminal Law Review, page 328, the Sexual Offences Act 2003 does not expressly concern itself with the full range of deceptions other than those identified in section 76 of the Act, let alone implied deceptions.  It notes that this leaves, as a matter of some uncertainty, the question of, for example, as it is put: "What if D deceives C into thinking that he is not HIV positive when he is?"There is no suggestion in that article that whatever may be the answer to that question, an implied deception can be spelt out of the mere fact that a person does not disclose his HIV status, or his or her infection by some other sexually transmissible disease, that such a deception should vitiate consent. 
20.	The consequence seems to us to be matter which requires debate, not in a court of law but as a matter of public and social policy, bearing in mind all the factors that are concerned including the questions of personal autonomy in delicate personal relationships.  That does not mean that we in any way dissent from the view of the Law Commission that there would appear to be good reasons for considering the extent to which it would be right to criminalise sexual activity by those with sexually transmissible diseases who do not disclose that to their partners.  But the extent to which such activity should result in charges such as rape, as opposed to tailormade charges of deception in relation to the particular sexual activity, seems to us to be a matter which is a matter properly for public debate.
21.	All we need to say is that, as a matter of law, the fact that the appellant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under section 74 in relation to the sexual activity in this case.
22.	Turning then to the second basis upon which it is submitted that the fact of his HIV status could be properly considered by the jury, namely that it went to the question of whether he could properly be said to have had any reasonable belief in the appellant's consent, it seems to us, that that, firstly, depended upon the question of whether the consent could properly be said to have been vitiated, because if it was not vitiated as a matter of law, that issue does not arise.  In any event, in the context of the issue as posed by the prosecution and by the judge to the jury, it seems to us that the status of the appellant as being HIV positive was so prejudicial that it was a matter which should not have gone before the jury and should have been excluded under section 78 in any event.
23.	It follows that, as far as this conviction is concerned, it must be quashed.  The circumstances of the case would justify us considering any application for a retrial.  Miss Etherton? 
24.	MISS ETHERTON:  Yes, there is such an application.
25.	THE VICE PRESIDENT:  Mr Mackinnon? 
26.	MR MACKINNON:  The only thing I can say is that the appellant has been custody for 18 months.  I cannot really say anything in addition to that.
27.	THE VICE PRESIDENT:  Thank you, Mr Mackinnon. (Pause)
28.	Mr Mackinnon, thank you.  We think this is a case where there should be a retrial in the circumstances.
29.	MR MACKINNON:  Yes. I am not absolutely sure whether I should apply to your Lordships and Ladyship for legal aid for the retrial? 
30.	THE VICE PRESIDENT:  You should, but do not worry, we will deal with that as a matter of course any way, Mr Mackinnon.  
31.	We allow the appeal.  We quash the conviction.  We direct that the retrial should be on the single count of rape and that a fresh indictment should be preferred so charging this appellant; and that he should be re-arraigned within 2 months.  There shall be a representation order for solicitors and counsel for the purposes of the retrial.
32.	As far as venue is concerned, that should be as directed by the presiding judge.  As far as the question of whether or not the appellant should be in custody or on bail is concerned, Mr Mackinnon have you any submissions as to that? 
33.	MR MACKINNON:  I am afraid I have no submissions at this time, my Lord.
34.	THE VICE PRESIDENT:  In all the circumstances we consider it would be wholly inappropriate for there to be an order for bail.  He must be in custody until the retrial.  
35.	Finally, should there be any reporting restrictions at the moment?  Apart from the name of the complainant which is clearly automatically withheld.
36.	MISS ETHERTON:  Obviously one would not want it in the public arena that this is an appeal, for obvious reasons.
37.	THE VICE PRESIDENT:  It seems as far as Mr Mackinnon is concerned, important that nobody should pick up -- whether they would or not, I do not know -- the issue of the appellant's HIV status, which we have said should not have been before the first jury. So I think we will impose reporting restriction.  The question is:  what restrictions should we impose?  Is it something we could deal with by way purely of anonymisation.  I say that simply because, it maybe, I know not, that people will want to report the case.
38.	MISS ETHERTON:  Yes, quite.  I think that sounds very sensible.  
39.	THE VICE PRESIDENT:  What we shall do is simply anonymise the case and I shall exclude from the draft, when I correct it, both the name of the court and the place where it all happened.  Will that be all right, Mr Mackinnon? 
40.	MR MACKINNON:  My Lord, thank you, yes.