Faser MUIR (2016), City University London, LL.Dip.
On November 3rd, 2015, the Law Commission delivered a report on updating and modernizing the Offenses Against the Persons Act (OAPA) 1861. The genus for the report stemmed from a scoping consultation paper (SCP) produced by the Law Commission to determine how this 150-year-old piece of legislation was still being used in modern criminal proceedings and whether it could stand up to the demands put upon it by modern society. The determination by both the SCP and the report in general was that it could not. The Law Commission found that the Offenses Against the Persons Act could not supply the requisite scope, with sufficiently clear and concise language, to deal with the multitude of offenses it purports to cover within the context of non-fatal injury. Thus, the Law Commission concluded that a new piece of legislation would need to be introduced to set out the crimes under the umbrella of non-fatal, injurious criminal conduct with an emphasis on clarity and simplicity of language, a more commonsensical approach to scaled levels of harm with different charges introduced to delineate between minor and major harm, and the introduction of new sections handling types of crime not previously considered under the OAPA. It is the third and final recommendation by the Law Commission that I will discuss further in this paper.
The major focus of the Law Commission with regards to the new types of offense that need to be considered was in regards to intentional and reckless transmission of disease. When the original OAPA was written in 1861, there was no perceived need to include a section dealing with the reckless transmission of disease, because the type of conduct being criminalized was generally thought to be violent in nature, not as a result of consensual sexual activity. However, since the decision in R v Dica  EWCA Crim 1103, the law now states that where two people engage in sexual intercourse and both are consenting, if one of the partners is not aware of the other’s disease status, he/she cannot be said to be consenting to the risk of contracting the disease themselves. The onus falls on the carrier of the disease to disclose their status and for their partner to consent to the sexual activity, knowing full well any risks involved with such activity. A failure to disclose infection status is now tantamount to an offense of grievous bodily harm, contrary to s.20 of the OAPA. That being said, a person can only be guilty of such an offense if the disease actually transferred from the defendant to the victim.
However, there is a considerable body of thought that challenges the presumption that the transmission of disease, particularly HIV, should be criminalized at all; especially when the transmission was unintentional. UNAIDS produced a document in 2013 entitled “Ending overly broad criminalization of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations.” In this report, a number of scientists, medical professionals and legal experts advocate very strongly against the criminalization of HIV transmission when such transmission was unintentional, or the defendant’s HIV status was unknown to him at the time of the act.
The Law Commission, when considering its recommendation as to how to internalize the offense of disease transmission, evaluated four possible courses of action. First, the Commission could simply ignore the disease element of injury, and allow the decision in Dica to dictate what constitutes a reckless transmission of disease, incorporating the charge into any new legislation in much the same way the courts utilized s.20 OAPA. Second, the Commission could adopt a specific definition of what constitutes an “injury” and explicitly exclude any transmission of disease from that definition, the result of which would be to remove liability for transmission altogether from this list of offenses. Third, the Commission could provide a specific provision into the new recommended legislation outlining the nature of the injury caused by reckless transmission of HIV and where it would be criminal: the transmission was knowingly undeclared or there was significant recklessness. Fourth, the Commission could merely exempt unwilling or unknowing transmission from any schedule of offenses by way of an explicit provision. However, before putting forth an argument as to which of these solutions is best in the new legislation, it is first necessary to examine the current law.
In Dica, it was held that where consensual sexual activity led to the transmission of a disease, the defendant could be held liable for s.20 grievous bodily harm if he knew his HIV status and failed to disclose it. Therefore, it naturally follows that if the defendant had intentionally infected another person, it must be a s.18 offense. There is no reported case to confirm the law here, but taking the decision in Dica to its logical extent, there must be s.18 culpability when the defendant deliberately, rather than recklessly, infected the victim. Also, when considering any activity where there was no consent – i.e. when the disease was contracted as a result of sexual assault – there must surely be s.20 culpability. The Law Commission also argues in the SCR that this type of injury, inflicted without consent, would have fallen under s.20 of the OAPA even before the decision in Dica.
The difficulty presented in the law in this area is where a victim freely consented to the sexual activity which led to the transmission of the disease. The case law up until the decision in Dica had generally taken the position that where the victim consented to the activity that led to the infection, the infected individual cannot be held criminally liable. In R v Clarence  2 QBD 23, the defendant had infected his wife with gonorrhea. The court held that he could not be held liable under s.20 because the term “inflict” was interpreted to mean ‘with a degree of direct aggression’; a description that did not fit into this context. The requisite level of inflicting harm on the victim did not marry up to an act of consensual intercourse. There have been numerous cases that followed this same reasoning, including: R v Wilson  AC 242 and R v Ireland and Burstow  AC 147. However, this reasoning changed in Dica, where the Court of Appeal held that what mattered was not whether the victim consented to the intercourse that led to the transmission, but whether she consented to the transmission itself. Judge LJ said in his judgement:
In our view, on the assumed fact now being considered, the answer is entirely straightforward. These victims consented to sexual intercourse. Accordingly, the defendant was not guilty of rape. Given the long-term nature of the relationships, if the defendant 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 defendant with a defence to the charge under section 20.
This ruling underlined the principle that consent would only negate culpability where the victim consented to the transmission itself, rather than the act leading to the transmission. As a result, courts have used a list of criteria for satisfying whether a defendant is in a position where he might have committed a s.20 offense. First, the court must determine whether the defendant has actually infected the victim with the disease. Second, the court must evaluate whether the defendant intended to cause the victim harm in some way, either by knowingly and willfully transmitting the disease, or recklessly endangering the victim through his action or omission. Third, the court must then determine whether the victim consented to the risk of infection. Finally, the court must also attempt to determine whether the defendant honestly believed that the victim was consenting to the risk. The most problematic part of this list is the second limb of the second criterion: recklessness.
For the defendant to be held liable of reckless endangerment of the victim’s wellbeing, there must be a known element of risk by failing to disclose his infection status. However, this becomes difficult to determine when the defendant’s status is unknown at the time of transmission. Must the defendant know for certain that they are infected and fail to disclose, or would they be sufficiently culpable if they knew, but were not certain of their status? If the defendant has a suspicion of his status, then there is a problem with removing culpability, because he is still acting recklessly by failing to disclose his status to the victim. However, no such case has yet arisen at the time of writing; all cases regarding this type of offense have been where the defendant was certain of his status and failed to disclose.
However, what constitutes certainty is also worth examining. A defendant must not always be required to have conducted full medical tests and received the results for the court to be satisfied that he was certain of his status. The Crown Prosecution Service has specific guidance to prosecute cases where there is sufficient evidence that the defendant knew that there were certain symptoms and actively avoided receiving the appropriate test or finding out the results. However, the Commission is at pains to point out that where the defendant may or may not be aware of their status, they can only be held liable where there is specific and direct evidence that they ignored specific information about their possible infection. This could include being contacted directly by a previous partner, informing them of their own status, or where previous partners have all contracted the disease and the common link is the defendant. The defendant could be held liable if it seems that there were no other excluding circumstances that could explain the infections. However, the evidence must be specific; it would not be right to hold liable a defendant solely because they belong to a certain group more prevalent to contracting the disease.
The second part of recklessness in these circumstances involves the defendant knowing not only that he was at risk of placing the victim in harm’s way, but that the risk was unreasonable. This is a point drawn upon by the UNAIDS report; many drug treatments available to sufferers of HIV are capable of dropping the viral load in patients to an undetectable level. If, knowing this, a defendant was to engage in sexual activity, it may be the case that he did not think that the risk of infection was unreasonable when the disease is undetectable within his own body. Again, this type of case has never been tried in England and Wales, and therefore is mere supposition. However, when deciding on the form the law should take, it is worth bearing in mind that it may be difficult to determine the recklessness when modern HIV treatment is so effective.
Similarly, there are questions about the consent element on behalf of the victim. In R v Konzani  EWCA Crim 706, the court held that for the defendant to present a credible defense, the victim must have provided “informed consent”. The victim must know of the defendant’s status and be fully aware of the risks involved in any intercourse before providing consent. It would not be informed consent if the victim did not know about the specific nature of the risk he/she was undertaking; knowing that unprotected sex is generally a high risk activity. However, it remains unclear how the victim must become informed in order to give consent. There is a question as to whether being told of the defendant’s status from someone else or whether any obvious physical symptoms would be sufficient to inform the victim to a sufficient degree. The same problem presented with recklessness is also present here: how does the court delineate between the knowledge of the victim that the defendant is infected, or that they might be? Again, there is no authority on this set of circumstances, and the question remains whether consent given under suspicion of infection is tantamount to giving informed consent.
Following on from the practice of informed consent is the belief of informed consent. The defendant has a defense if he honestly believed the victim was consenting to the risk of infection. This belief need not be correct, or even reasonable, but it must hang on the belief that the victim was giving informed consent. There is no defense available if the defendant only believed that the victim was consenting generally to the intercourse, rather than to the specific risk of infection resulting from the intercourse. Any belief in general consent is negated, because that merely reflects an ignorance of the law and the infected person’s duty to inform any partner of the specific risk associated with contracting the disease in question.
Turning now towards the suggested reforms put forward by the Law Commission in this area, it seems that there are a few key underlying factors being considered. The Law Commission posed a series of questions to consultees in the Scoping Consultation Paper they produced before filing their report and recommendation. The purpose of posing these questions to the various consultees was to receive a broad range of responses from a number of interested parties about the way the law should change, it at all. The first question put to the consultees was whether or not any reform of the OAPA should take disease transmission into account? The majority of consultees answered in the affirmative. In particular, there is a general feeling that the current law as defined by Dica and Konzani is insufficiently clear to satisfy any further questions about culpability when disease is transmitted sexually. There is concern about what constitutes “informed consent” when parties may or may not have been made aware of the defendant’s status in a manner other than the direct conferral from medical test to defendant and defendant to victim. There is also concern in academic discourse that the decisions in R v Golding  EWCA Crim 889 and R v McNally  EWCA Crim 1051 have “blurred the parameters of so-called ‘biological GBH’” and that the possibility of “non-disclosure of infection could invalidate consent for the purposes of sexual offenses.”
The second question posed by the Law Commission was whether disease transmission should fall within the injury offenses of the revised Act. There is far greater dissent amongst the consultees here, with 9 arguing for the decriminalization of reckless disease transmission. The majority of consultees holding this view were experts in the field of HIV/AIDS or strongly linked to HIV/AIDS charities both domestically and internationally. The consultees tended towards the conclusion made in in the UNAIDS report, where only intentional transmission should be fully criminalized. Although the UNAIDS report does mention reckless transmission and the criminal liability attached to such an act, the consultees in this school of thought are quick to distinguish between the UNAIDS primary recommendation (culpability for intentional transmission) and secondary recommendation (culpability for reckless transmission). The Law Commission followed up by asking how the consultees would like to see reckless transmission decriminalized. The Commission pointed out that any exclusion of disease transmission from the schedule as an ‘injury’ would serve the dual effect of decriminalizing the disease transmission even as a result of direct physical or sexual assault. One response to this concern was to prosecute the sexual or physical assault separately, and use the transmission of disease as an aggravating factor in sentencing.
Furthermore, in response to the Law Commission’s concerns about decriminalizing intentional transmission of disease as an offense, several consultees clarified that having disease transmission – reckless or intentional – added to the schedule as an ‘injury’ would leave the law open to wide expansion. There is a concern that if disease transmission were to be classified explicitly as an ‘injury’ within the context of the reformed Act, there is a possibility that the transmission of other, more minor diseases – such as tuberculosis – could be criminalized. The consultees are hesitant to endorse such an action, especially when their mission is to treat and destigmatize these diseases. It could be argued that criminalization would serve the opposite effect, and severely impact the public health as a result. Further to this, the National AIDS Trust clarified that if a specific exemption were to be added to encompass disease transmission, it must be made clear that any method of transmission must be excluded, not simply sexual transmission. Overall, those in favour of decriminalization rationalized their position by couching it in terms of the greater public health. Their argument stems from concerns over whether criminalization of these dangerous, highly infectious diseases will prevent effective treatment. Fearful that criminalization will prevent infected persons from seeking medical help or warning any partners of their risk of exposure, these consultees opined that anything except decriminalization will hinder their efforts towards effective treatment.
A number of other consultees, including the Crown Prosecution Service, are in favour of including reckless transmission into the general offenses of injury, specifically the schedule of offenses recklessly causing injury. The justification for this position surrounds the stigmatization of certain groups, particularly HIV carriers. The concern here is that certain diseases are viewed as much more dangerous than others, and that those diseases will be prosecuted far more often, unfairly targeting sufferers of a particular disease. By including reckless transmission of any disease into the general schedule of injuries with general exceptions for minor offenses (like infecting someone with a cold), it is hoped that there will be no overt prosecution of a particular group over another. There is also a concern about the liability of the victim, should transmission receive an exemption. If the victim is placed under an equal burden for making themselves aware of any risk, it defeats the purpose of prosecuting these cases. Such logic follows more closely to the concept of contributory negligence, which is no defense in criminal proceedings. The Association of Police and Crime Commissioners are also in favour of a general injury offense for reckless transmission, albeit for practical purposes. Their belief is that it will allow police inquiries greater flexibility when dealing with the facts of individual cases. There are no specific requirements for disease transmission as an injury which need to be satisfied; this is thought to allow the police to bring more actionable cases to the Crown Prosecution Service.
Yet another school of thought amongst the Law Commission’s consultees supports the position that there should be a specific offense included in the new Act for disease transmission. Included in this cohort is the Council of HM Circuit Judges. The justification for this opinion is born out of a belief that disease transmission is a specialized offense, and as such requires particularly narrow definition. One such special factor is that this offense does not necessarily carry an element of violence or aggression. This goes back to the pre-Dica mentality of judges in these cases: without direct violence or aggression, this cannot be classified as a traditionally injurious assault. Following on from the lack of direct violence, another special element to disease transmission is the particular consideration the defendant must have as to risk. This includes investigation into the defendant’s consideration of “the seriousness of the risk, the likelihood of the risk occurring; social utility of the conduct, ability to use precautions, need if any for disclosure of infected status and victim awareness of the risk and willingness to accept it.” Obviously, this high degree of consideration goes beyond what would usually be required to investigate the acceptance of risk in a traditional recklessness offense.
The third question the Law Commission asked the consultees regarding disease transmission was whether the defendant should always be required to disclose the presence of infection. The Commission is concerned that in situations where the disease is undetectable, whether or not the defendant would still be under a duty to disclose, even if not doing so might not create any unreasonable amount of risk. The Commission foresaw three possible answers to this question; first, that the defendant must only disclose his status if the risk of infection is significant; second, that the defendant must always declare the presence of an infection; or third, that the jury would be left to decide in each, individual case. If the first or second answer was generally thought of as correct, then that would be incorporated into a specialized offense for disease transmission, whilst the third answer it seems would fall more neatly into an offense of general injury.
The view that there should be no obligation to disclose unless the risk of infection is significant, was again taken by a similar group of consultees as took the view of decriminalization. The medical professionals and various charities dedicated the prevention and treatment of HIV were convinced that only when there is a significant risk of exposure should any charges be brought. The BHIVA was also at particular pains to point out that this determination should not be left to the jury. Others within this group rejected the three answers provided by the Law Commission, citing the current law. The Terrence Higgins Trust argued that where reasonable precautions are taken, such as condom or antiretroviral drug use, then the risk should not be deemed reckless at all, and there should be no duty to disclose infection status. The overarching theme in this line of argument is that disclosure should not be considered as part of the recklessness of the offense. The recklessness comes from the act itself, not a failure to talk about the potential risk prior to the act. There is also a concern that by disclosing one’s status, and thus avoiding any liability, there might be a reduction of safe sex practices as a result. This is obviously greatly contrary to the public health in general, and could also lead to a difficulty in tracking the spread of the disease, as partners may be disclosing their status without full confirmation.
A few of the consultees maintained that the only correct approach would be to require disclosure every time. The main argument for this view is that the other options are simply inadequate to capture and guard against reckless choices. Even if it might be reasonable to assume that there was zero to extremely little chance of transmission on one occasion, how would the law deal with the same partner having intercourse multiple times? Statistically, such behaviour would increase the risk of exposure to the disease over time, whilst in every instance, still remain relatively low. How would the law protect against that kind of reckless behavior if there was an exemption from disclosure when the defendant’s viral load is low? Furthermore, this school of thought tends towards the policy belief that the law should be protecting would-be victims at every opportunity, and implementing a full disclosure requirement would certainly reduce the likelihood of infection. Also, there is a policy argument for promoting honesty in all sexual relationships; doing so promotes good sexual practice and physical and mental health.
The vast majority of consultees agreed with the third option proffered by the Law Commission, that it was a question of fact in each case. The Crown Prosecution Service believes that with such a fraught issue, over which many policy arguments are still raging, the safest option would be to have the jury decide the culpability on a case-by-case basis. The Law Society also approves of this approach. They argue that it does not nail down too prescriptive a definition as to when it would be right to disclose and when not doing so would be reckless. The general theme in favour of this argument is that each individual case is too nuanced to define when the risk is reckless and when it is reasonable. By allowing the jury to decide, it remains a common sense decision, rather than one explicitly defined in law. All agreed however, that a distinction would have to be made between non-disclosure and a pre-meditated deception.
In conclusion, the Law Commission recommended the following with regards to reforming the law on the transmission of disease:
In any new statute governing offences against the person, … the offences of causing serious injury should be capable of including the intentional or… reckless transmission of disease; accordingly disease should fall within the definition of injury […]
If it is desired to pursue further the possibility of excluding criminal liability for the reckless transmission of disease, or of creating special offences for such transmission, this should follow a wider review. […]
We do not recommend offences of exposing persons to the danger of disease, or of failing to disclose infection […]
The offence … of intentionally or recklessly causing injury, should exclude cases where the risk taken is such as to be generally acceptable in the ordinary conduct of daily life, but we consider that this is sufficiently ensured by the recklessness requirement of the offence […]
The Law Commission’s recommendations are strong and well-reasoned. However, I do not agree that the transmission of disease should be included within the general injury offenses. This is too complicated an issue, and the factors involved in every case too complex to impose the same test as for a reckless physical assault. That being said, the Law Commission is correct in stating that before any special provision is drawn up, a more thorough review of the issue needs to be undertaken. Furthermore, the Law Commission is right, in my view, not to recommend separate offenses for failing to disclose their status or exposing a victim to the disease, only if transmission actually occurs. I also believe that the recommendation not to pursue a recklessness offense if reasonable measures were taken to mitigate the risk of infection – such as condom use and antiretroviral medication – is correct. Not doing so would have an adverse effect on the stigma surrounding these diseases and most likely result in fewer partners taking adequate protection. I would agree with all the Law Commission’s recommendations on how this part of the OAPA should be reformed, except with regards to the classification of the offense of recklessly transmitting disease, which ought to be in a separate provision with separate tests.
 R v Clarence  2 QBD 23
 http://www.unaids.org/en/media/unaids/contentassets/documents/document/2013/05/2013 0530_Guidance_Ending_Criminalisation.pdf Accessed: 20/04/16
 Case comment by J Rogers, “Criminal Liability for the Transmission of HIV” (2005) 64(1) Cambridge Law Journal 20.
 Para 39 of judgment, Judge LJ.
 “Intentional or Reckless Sexual Transmission of Infection” http://www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/ Accessed: 10/04/16
 The risk is practically non-existent – a study involving 44,000 unprotected sex acts where one partner was HIV+ but with an undetectable viral load due to treatment came across not a single instance of transmission. See SCP Ch 6 fn 74; (2014) 22 Topics in Antiviral Medicine (e-1) 24-5; Article: https://iasusa.org/sites/default/files/tam/22-e1- 4.pdf Accessed: 17/04/16
 J Chalmers, Legal Response to HIV and AIDS (2008) p 146; D Hughes, “Condom use, viral load and the type of sexual activity as defences to the sexual transmission of HIV”  Journal of Criminal Law 136; SCP para 6.25 and following.
 Scoping Consultation Paper on Reform of Offenses Against the Person (2015) Law Com. para. 7.32
 SCP para. 7.33
 Reforms of Offenses Against the Person (2015) Law Com No 361, para. 6.41
 Ibid, para. 6.42
 Ibid. para. 6.43(1)
 Ibid. para. 6.43(2)
 Ibid. para. 6.43(4)
 U Schüklenk, “Should we use the criminal law to punish HIV transmission?”  Journal of Criminal Law in Context 277, reviewing M Weait, Intimacy and Responsibility (2008)
 Law Com 361, para. 6.45
 Ibid. para. 6.46(3)
 Ibid. para. 6.47
 Ibid. para. 6.48(1)
 Ibid. para. 6.48(2)
 Ibid. para. 6.49(2)
 Ibid para. 6.50(1)
 Ibid. para. 6.50(2)
 Ibid. para. 6.143
 Ibid. para. 6.144
 Ibid. para. 6.145
 Ibid. para. 6.146