R v David Golding
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWCA Crim 889 |
| Date | 08 May 2014 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201105243 C2 |
[2014] EWCA Crim 889
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Northampton Crown Court
HHJ Fowler
T20100442
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
Mr Justice Bean
and
His Honour Judge Lakin
Case No: 201105243 C2
Simon Gladwell (who did not appear below) (instructed by Registrar of Criminal Appeals) for the Appellant
Iain Wicks (who did not appear below) (instructed by Crown Prosecution Service Headquarters) for the Respondent
Hearing date: 18th March 2014
Introduction
This is an application referred to the Full Court by the Registrar for an extension of time and for leave to appeal against conviction and sentence. We grant these applications and deal with this matter as an appeal.
On 18 th July 2011 in the Crown Court at Northampton the appellant pleaded guilty on re-arraignment to inflicting grievous bodily harm contrary to Section 20 of the Offences Against the Person Act 1861. On 9 th August 2011, at the same court, he was sentenced to 14 months imprisonment.
The essential facts show that this appellant, a man of previous good character, met the complainant, CS, in July 2009. The relationship developed into a sexual one. By September 2009 the complainant had become ill. She was quickly diagnosed with Genital Herpes Simplex caused by virus type 2 (HSV-2). She suffered recurrences and returned to her doctor on 7 th October and 19 th November 2009.
On being diagnosed CS confronted the appellant. He initially denied responsibility for infecting her and the relationship continued. However, he subsequently admitted that he had caught the herpes virus from a previous partner. His GP records, which reported recurring genital herpes, revealed that he was first referred to a clinic in June 2007, and again in April 2008. After the complainant was infected, he returned to the clinic again with an outbreak in November 2009.
When interviewed by the police, the appellant admitted that he had given the complainant herpes, and that he should have told her about his condition. He said he was deeply ashamed.
The Crown's case was that the appellant recklessly caused the complainant to become infected in circumstances where he was aware that he was infected with HSV, and where she had not consented to the risk of becoming infected through intercourse.
At the time of pleading guilty the appellant put forward a basis of plea in these terms:
"(1) In the summer of 2009 I met and formed an attachment to the complainant in this case [CS].
(2) I had previously suffered from herpes and am aware that this is a sexually transmitted virus which once caught never leaves the carrier, and can be transmitted from the carrier to others by a number of means including sexual intercourse.
(3) I did not tell [CS] that I had been diagnosed with herpes. I did not tell her because I really wanted our relationship to continue and was frightened that she would not have continued with that relationship.
(4) I accept that we had sexual intercourse during our relationship and as a result she caught herpes from me.
(5) I did not intend her to catch the virus from me but I accept that I behaved recklessly and as a result have assaulted her occasioning her actual bodily harm."
Those final words are not apposite to a guilty plea to a Section 20 offence. The appellant had initially hoped to plead guilty to a Section 47 offence and a document in the terms recited had been prepared. In the event because of an oversight the wording to paragraph 5 was not altered, but evidence from the appellant's solicitor advocate was to the effect that the appellant understood the position and was intending to acknowledge an offence contrary to Section 20. That is an issue to which we will return later.
The history of the matter shows that on 31 st August 2011, some twenty two days after sentence, the Crown commissioned a report from Dr Kenneth Mutton, a consultant medical virologist. He produced a report dated 13 September 2011 which was disclosed to the appellant's solicitors. In that report Dr Mutton raised two issues: (1) whether genital herpes could be described as "really serious bodily harm" so as to come within Section 20, and (2) whether it could be said that the appellant had infected the complainant with genital herpes in the absence of evidence of laboratory tests at that point.
As a result of that disclosure, the appellant lodged grounds of appeal and an application for bail. On 27 th September 2011 Burnett J admitted the appellant to bail subject to conditions.
The matter has been further investigated over a lengthy period of time by two well qualified virologists, Dr Mutton and Professor George Kinghorn. That process was not complete until September 2013, representing an unfortunate delay in these proceedings. The matter was listed before a constitution of this court in December 2013. Regrettably that hearing had to be adjourned as a wholly inadequate time estimate had been applied to this case, particularly when it became clear that certain witnesses would need to give evidence.
However, on that occasion the court was able to dispense with the attendance of Dr Mutton and Professor Kinghorn by exercising its powers pursuant to Section 23(1)(b) of the Criminal Appeal Act 1968 to order Professor Kinghorn to be examined before the court. That enabled him to be examined by the appellant's counsel, and cross-examined by counsel for the Crown, and a transcript prepared. It was not necessary for a similar procedure to be adopted with Dr Mutton.
On behalf of the appellant an application has been made to call fresh evidence in the form of Professor Kinghorn's various reports and the evidence he gave to the court in December 2013. The Crown sought to adduce the reports of Dr Mutton as fresh evidence. In addition, in the course of the hearing before this constitution, we were invited to receive fresh evidence from the appellant himself, his trial advocate, David Everett, and CS. We agreed to hear the evidence de bene esse and will consider its admissibility and/or impact later in this judgment.
There are a number of grounds of appeal against conviction. Briefly put, (1) the Crown failed to follow CPS Guidelines on Intentional or Reckless Sexual Transmission of Infection. (2) The appellant's legal representative was at fault in failing to challenge the CPS's failure to follow its guidance, in failing to obtain its own expert report dealing with HSV, and in failing to obtain the appellant's full medical records. (3) The guilty plea to a Section 20 offence was not an informed and voluntary plea. (4) The medical evidence, including fresh evidence, was insufficient to show that HSV amounts to really serious bodily harm, and (5) there was insufficient evidence to show that the appellant infected CS recklessly or at all.
Fresh Evidence
Given the degree of interrelationship between these grounds, it seemed appropriate to us to receive all the proffered fresh evidence pursuant to our power to receive it if necessary or expedient in the interests of justice under Section 23(1), and then to evaluate it as necessary where it was relevant to one or more of the grounds put forward. We received no submissions to the contrary from either counsel, although there were submissions as to the accuracy or weight to be attached to evidence received from individuals, particularly the appellant.
Medical Evidence
After the initial report of Dr Mutton, referred to at paragraph 9 above, both he and Professor Kinghorn produced additional reports. By the end of that process there was virtually nothing between the two experts after further investigations had been carried out. There was definitive evidence that CS acquired genital herpes of type HSV-2 during the time she was in an ongoing sexual relationship with the appellant. The infection she complained of in September 2009 was her first infection. She had not previously been infected with herpes.
The incubation period for herpes is short. Usually from exposure to development of infection takes 48 to 72 hours. Most infections have occurred within five days of contact, but this can be as long as twenty days. HSV-2 is normally acquired through sexual intercourse; there is no realistic chance of it being acquired merely by kissing.
As far as the appellant was concerned, there was definitive evidence, including laboratory testing, to show that he was treated for a virologically confirmed first episode of genital herpes in April 2008. There was no definitive evidence as to whether this was type 1 or type 2. Discordant types (HSV-1 in one partner, HSV-2 in the other) would exclude transmission between them. The evidence that CS's infection was acquired from the appellant was circumstantial and based on a primary infection having occurred in September 2009 at a point when she was involved in a sexual relationship with the appellant. However, there was no evidence as to the type of HSV involved in the appellant's infection.
CS had, by implication in her initial witness statements, made clear that she had had no sexual partner other than the appellant at the relevant time. In a statement made for the purpose of these proceedings and in evidence given to us, CS confirmed expressly that this was the case. The proposition that the appellant was responsible for CS's infection therefore, in the view of the medical experts, depended heavily on the validity of CS's claim that she had had no other sexual partner during the relevant period.
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