R v Mohammed Dica
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge |
| Judgment Date | 05 May 2004 |
| Neutral Citation | [2004] EWCA Crim 1103 |
| Docket Number | Case No: 200306721/B3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 May 2004 |
[2004] EWCA Crim 1103
Lord Chief Justice Of England and Wales
Lord Justice Judge and
Mr Justice Forbes
Case No: 200306721/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HHJ PHILPOT AND A JURY
INNER LONDON CROWN COURT
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr J. Carter-Manning QC and Mr N. Mather for the Appellant
Mr M.J. Gadsden and Miss H.E. Stangoe for the Crown
This is an appeal by Mohammed Dica, with leave of the trial judge, against his conviction at Inner London Crown Court before HHJ Philpot and a jury on 14th October 2003 of two offences of causing grievous bodily harm, contrary to s.20 of the Offences Against the Person Act 186He was sentenced to consecutive sentences of 3 1/2 years' and 4 1/2 years' imprisonment, a total sentence of 8 years' imprisonment. His appeal against sentence was referred to the full court by the Registrar.
The appeal raises issues of considerable legal and general public interest about the circumstances in which a defendant may be found guilty of a criminal offence as a result of infecting another person with a sexually transmitted disease. In the present case we are directly concerned with HIV. However we understand that there have been significant recent increases in the recorded rates of syphilis and gonorrhoea, and that a significant proportion of sexually active young women, and many young men, are infected with chlamydia. Accordingly, although we agreed to accept submissions from the Terence Higgins Trust, the George House Trust and the National AIDS Trust in relation to HIV, and some of the problems faced by those with this condition, for which we are grateful, the issues which arise in this appeal are not confined to that devastating disease.
The Facts
The facts relevant to this appeal can be summarised briefly.
The appellant was told in December 1995 that he was HIV positive. Appropriate medication was then started.
The first complainant, L, was born on 12th December 1966. She was a refugee from Somalia who arrived in the United Kingdom in November 1994. She said that she was first introduced to the appellant in 1997, and they subsequently met on a number of occasions. She explained that she was having matrimonial difficulties, and he told her that he had left his wife. The relationship between them developed from there.
According to L, when they had sexual intercourse, the appellant would say "Forgive me in the name of God". He however insisted that they should not use protection, telling her that she could not become pregnant because he had undergone a vasectomy. After a time she experienced thrush and swollen glands. She eventually went to hospital where she was diagnosed HIV positive.
She was cross-examined at trial, when it was suggested that she might have contracted HIV from sources other than the appellant.
The second complainant was D. She met the appellant in December 2000. In February 2001 they had protected sexual intercourse, but on subsequent occasions during their relationship, sexual intercourse was unprotected. When she found that she was developing similar symptoms to those suffered by L, she sought medical advice. She was diagnosed as being HIV positive. Apart from the appellant, her only other sexual partner during the previous 18 years had been her husband.
The appellant was arrested on 11th July 2002. When cautioned, he replied, "I am terminally ill, and need to go to hospital today for an operation, I will tell you everything, I did it." A few days later he was interviewed in the presence of his solicitor. He said that he had first met L in Kenya in 1988 and had a casual relationship with her. He had met her again in the United Kingdom. He had told her he was HIV positive when their relationship restarted, and she responded by saying that she thought that she was also infected. He said that she had been involved with between six and ten different men. In relation to D, he asserted that he had met her in 1994, when they had had a "one night stand". The relationship resumed in 2001, when she knew that he was HIV positive. Thereafter he was charged, and after caution he replied, "I've understood."
It is perhaps important to emphasise at the outset that the prosecution did not allege that the appellant had either raped or deliberately set out to infect the complainants with disease. Rather, it was alleged that when he had consensual sexual intercourse with them, knowing that he himself was suffering from HIV, he was reckless whether they might become infected. Thus, in the language of the counts in the indictment, he "inflicted grievous bodily harm" on them both.
It was not in dispute that at least on the majority of occasions, and with both complainants, sexual intercourse was unprotected. Recklessness, as such, was not in issue. If protective measures had been taken by the appellant that would have provided material relevant to the jury's decision whether, in all the circumstances, recklessness was proved.
Although both women were willing to have sexual intercourse with the appellant, the prosecution's case was that their agreement would never have been given if they had known of the appellant's condition. The appellant would have contended that he told both women of his condition, and that they were nonetheless willing to have sexual intercourse with him, a case which in the light of the judge's ruling, he did not support in evidence. The suggestion would have been strongly disputed by them both.
The Trial
At the end of the Prosecution case, Judge Philpot made two critical but distinct rulings. First, he concluded that notwithstanding the well-known decision by the Crown Cases Reserved in R v Clarence (1889) 22 QB 23, it was open to the jury to convict the appellant of the offences alleged in the indictment, on the basis that its standing as "an important precedent has been thoroughly undermined, and … provides no guidance to a (first) instance judge". His second conclusion, which in a sense was more far-reaching, was that whether or not the complainants knew of the appellant's condition, their consent, if any, was irrelevant and provided no defence. Accepting the Crown's argument as advanced to him, the judge believed that the decision in the House of Lords in R v Brown & ors [1994] 1 AC 212 deprived the complainants "of the legal capacity to consent to such serious harm".
Following that ruling the appellant elected not to give evidence, and the issue whether the complainants consented to have sexual intercourse with him knowing of his condition was not left to the jury.
Mr Carter-Manning QC, arguing the case on behalf of the appellant before this Court, contends that both these rulings were wrong in law. We must therefore examine them both. We have been fortunate that Professor John Spencer QC of Selwyn College, Cambridge, had, as a result of these convictions, published two articles in the New Law Journal of 12th and 26th March 2004, entitled "Liability for reckless infection", which were of considerable assistance to us.
R v Clarence
Clarence had sexual intercourse with his wife when he knew, but she did not, that he was suffering from gonorrhoea. It was not suggested that he intended to cause her to become infected, and it was assumed that if she had known of the risk, she would not have had consensual sexual intercourse with him. In the result, she became infected with gonorrhoea, and accordingly suffered grievous bodily harm.
The indictment included two counts, the first alleging the infliction of grievous bodily harm, contrary to s.20 of the 1861 Act, and the second, assault occasioning actual bodily harm, contrary to s 47. The Recorder of London directed the jury that if the facts were proved the defendant could be convicted on either count, notwithstanding that the complainant was his wife. Clarence was convicted on both counts. By a majority of 9 to 4, his appeal was allowed. He had not committed an offence against either s.20 or s 47 of the 1861 Act. If Clarence remains authoritative, this case is indistinguishable and therefore this appellant should not have been convicted. His convictions, like Clarence's, would have to be quashed.
In Clarence the main majority judgments were given by Wills and Stephen JJs. It is reasonable to infer that Manisty J agreed with them both, and Lord Coleridge CJ and Pollock B certainly agreed with both judgments, adding brief judgments of their own. The remainder of the majority, that is Matthew, AL Smith, Grantham JJs and Huddleston B expressly agreed with Stephen J.
Clarence has achieved notoriety as support for the proposition that a married woman is deemed to consent to sexual intercourse with her husband. A husband could not be indicted for rape of his wife. This "irrevocable privilege", as Hawkins J described it, was finally identified as a fiction in R v R [1992] 1 AC 599. However the artificial notion that sexual intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be treated as if it were consensual sexual intercourse permeated much of the reasoning of the majority, and was fundamental to the outcome in relation to both counts. For present purposes, it is sufficient to illustrate the impact of this artificial notion in relation to s 47 by considering Pollock B's observations at p. 62:
"The second count charges an assault … I should be inclined to hold that … an assault must in all cases be an act which in itself is illegal and … I cannot assent to the proposition that there is any true analogy between...
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