R v Dica [2004] QB 1257 (CA)

Facts

  • Mohammed Dica was charged with recklessly transmitting HIV to two sexual partners without disclosing his HIV-positive status.
  • The charges were brought under section 20 of the Offences Against the Person Act 1861, relating to the infliction of grievous bodily harm.
  • The complainants engaged in sexual activity with Dica but were unaware of his HIV status and the associated risk.
  • Prior law, particularly R v Clarence (1888), suggested consent to intercourse precluded liability for disease transmission; this was reconsidered in the present case.

Issues

  1. Whether consent to sexual intercourse inherently includes consent to the risk of contracting a serious disease such as HIV.
  2. Whether informed consent, specifically relating to knowledge of a partner's HIV status, is required to preclude criminal liability for disease transmission.
  3. How criminal liability should be determined in cases where an individual fails to disclose a serious, transmissible disease to a sexual partner.

Decision

  • The Court of Appeal held that consent to sexual activity does not equate to consent to the risk of contracting a serious disease; valid consent must be real and informed.
  • Since the complainants were unaware of Dica’s HIV status, they could not have given informed consent to the risk of transmission.
  • The court clarified that recklessness in transmitting disease, without disclosure and informed consent, satisfies the requirements for criminal liability under section 20 of the Offences Against the Person Act 1861.
  • The earlier immunity suggested by R v Clarence (1888) was departed from, reflecting contemporary views on disease transmission and consent.

Legal Principles

  • For consent to a risk of disease transmission to be valid in criminal law, it must be real and informed, requiring awareness of the specific risk involved.
  • Consent to sexual intercourse alone does not constitute consent to the risk of contracting a serious sexually transmitted infection.
  • The defendant's failure to disclose a serious transmissible disease may render consent invalid and constitute recklessness for the purposes of criminal liability.
  • Criminal liability for inflicting grievous bodily harm (s20 Offences Against the Person Act 1861) may arise where a defendant transmits a serious disease without the sexual partner's real and informed consent.

Conclusion

R v Dica [2004] QB 1257 established that criminal liability for the reckless transmission of serious disease depends on the absence of real and informed consent by the complainant, thereby requiring disclosure of the relevant risk by the defendant; the case shifted the law away from outdated precedent and emphasized the centrality of informed consent in both criminal law and public health contexts.

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