R v Dica [2004] EWCA Crim 1103

Facts

• Mohammed Dica was diagnosed with HIV in 1995.
• He subsequently engaged in unprotected sexual activity with two women, both of whom contracted HIV.
• Dica was aware of his HIV-positive status at the time.
• The prosecution argued that Dica recklessly transmitted HIV, fully aware of the risk.
• Dica claimed the women were informed of his HIV status and consented to unprotected sex.
• At trial, the judge instructed the jury that if Dica, knowing of his status, had consensual sexual contact with the women, he was guilty of causing serious harm—removing consent from jury consideration.
• Dica was convicted based on this direction.

Issues

1. Whether consent to sexual activity equates to consent to the risk of contracting HIV.
2. Whether the trial judge's direction to the jury improperly excluded the consideration of informed consent.
3. To what extent knowledge and recklessness are required for liability under sections 18 and 20 of the Offences Against the Person Act 1861 regarding the transmission of HIV.
4. Whether public policy should permit or restrict criminal liability for consensual transmission of serious diseases.

Decision

• The Court of Appeal rejected the trial judge’s instruction and quashed Dica’s conviction, ordering a new trial.
• The court held that consent to sexual intercourse does not automatically equate to consenting to the risk of contracting a serious disease like HIV.
• The issue of informed consent—whether the complainants were aware of and accepted the risk—should be left to the jury.
• Distinction made between consenting to the act and consenting to risk of serious harm.
• The case R v Clarence was distinguished on the grounds that public and legal awareness of sexually transmitted diseases had changed over time.
• The court clarified that recklessness for HIV transmission is established where the defendant knows their status, understands the risk, and disregards it.

Legal Principles

• Consent to sexual activity does not, by itself, constitute consent to the risk of contracting a serious illness.
• For a conviction under sections 18 or 20 of the Offences Against the Person Act 1861 in cases of disease transmission, it must be established that the defendant was aware of both their own condition and the risk, and acted recklessly.
• The legal test for recklessness relies on the defendant’s knowledge of the risk and their disregard for it, viewed from the standpoint of a reasonable person.
• Criminal liability for reckless transmission of serious diseases is justified by weighing individual autonomy against public health considerations.
• Past case law, such as R v Clarence and R v Brown, may be distinguished where changing social and medical understanding is relevant to consent and harm.

Conclusion

The Court of Appeal in R v Dica [2004] EWCA Crim 1103 clarified that consent to sexual activity does not necessarily mean consent to the risk of HIV transmission and outlined the requirements for recklessness in such cases, shaping future legal treatment of consent and serious disease transmission under the Offences Against the Person Act 1861.