R v B (2006)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 16 October 2006 |
| Neutral Citation | [2006] EWCA Crim 2945 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200601453/C1 |
| Date | 16 October 2006 |
[2006] EWCA Crim 2945
The Vice President (Lord Justice Latham)
Mr Justice Henriques
Mrs Justice Gloster Dbe
No: 200601453/C1
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR T MACKINNON appeared on behalf of the APPELLANT
MISS G ETHERTON appeared on behalf of the CROWN
: 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.
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.
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.
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.
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.
The jury, having heard all the evidence, by its verdict clearly rejected the appellant's account.
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.
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.
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."
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.
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.
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."
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...
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