Criminal Liability for Transmission of Herpes Simplex Virus: R v Golding [2014] EWCA Crim 889
| Author | James Roebuck |
| Published date | 01 August 2014 |
| Date | 01 August 2014 |
| DOI | http://doi.org/10.1350/1740-5580-78.4.294 |
| Subject Matter | Court of Appeal |
294
The Journal of Criminal Law
Criminal Liability for Transmission of
Herpes Simplex Virus
RvGolding [2014] EWCA Crim 889
Keywords: Herpes Simplex Virus (HSV-2); Reckless transmission; Basis of
plea; Medical evidence
On 18 July 2011 at the Crown Court at Northampton, the appellant,
Golding, pleaded guilty to inicting grievous bodily harm contrary to s. 20
of the Offences Against the Person Act 1861. On 9 August 2011, he was
sentenced to 14 months’ imprisonment.
The appellant was a man of previous good character, who met the
complainant, CS, in July 2009. Their relationship developed into a sexual
one and by September CS had become ill and was diagnosed with Genital
Herpes Simplex type 2 (HSV-2). The appellant had rst been referred to a
sexual health clinic with herpes in June 2007 with repeated visits in
subsequent years. CS had not previously suffered from herpes.
The Crown’s case was that the appellant had recklessly infected CS in
circumstances where he was aware that he was infected with genital
herpes, and where CS had not consented to the risk of infection.
The appellant put forward a basis of plea accepting that he had
previously suffered from herpes and was aware that this is an incurable
sexually transmitted virus. He admitted that he met CS in the summer of
2009 and did not tell CS that he had been diagnosed with herpes. He
further accepted that CS caught herpes from him, although he stated that
he did not intend her to catch the virus.
The subsequent appeal against conviction was based on the following
grounds: (i) the Crown failed to follow CPS guidelines on intentional
or reckless sexual transmission of infection; (ii) the appellant’s legal
representative was at fault in failing to challenge this failure and in failing
to obtain his own medical report on HSV-2 and the appellant’s own
medical records; (iii) the guilty plea to s. 20 was not an informed and
voluntary plea; (iv) the medical evidence, including fresh medical evidence
obtained since the trial, was insufcient to show that HSV-2 amounts to
really serious bodily harm; and (v) there was insufcient evidence to show
that the appellant infected CS recklessly or at all. The appellant also
appealed against his sentence of 14 months’ imprisonment for the offence.
The Court of Appeal received fresh evidence from two medical
virologists. The court also heard evidence from the appellant, his trial
advocate, and CS.
Held,dismissing tHe appeal against conviction but allowing tHe
appeal against sentence, although the Crown had not followed the CPS
guidance on prosecuting offences of this type, any shortcomings in this
regard could be addressed by the trial process. Whilst the evidence could
be said to fall short of the standard contemplated in the CPS guidance it
‘sufced to raise a prima facie case against the appellant’ (at [62]). A jury
would be entitled to conclude that genital herpes amounted to grievous
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