Mohammed Dica, the first person to be found guilty of transmitting HIV in England and Wales, has today won an appeal against his October 2003 conviction for grievous bodily harm, for which he was sentenced to a total of eight years in prison.
Lord Justice Igor Judge, one of the two judges adjudicating at London’s Court of Appeal, has ordered a re-trial after concluding that the original judge, HHJ Philpot, made a “wrong” ruling that effectively prevented Dica from giving evidence claiming that the two women he infected with HIV had consented to sexual intercourse knowing of the risks involved, and prevented that point being put to the jury.
Lord Judge “unhesitatingly” ordered a retrial, to take place “at the earliest possible date”, most likely early June. Until then, 38-year-old Dica will remain in custody.
According to James Chalmers, lecturer in law at Aberdeen University and NAM's specialist adviser on HIV and the law, the Court of Appeal judgment confirms the following two points:
1) The reckless transmission of HIV (and, possibly, other STIs) can amount to a criminal offence.
2) Where the complainant consents to sexual intercourse knowing of the risks involved, this will be a defence.
It also suggests the following:
1) The use of condoms is probably a defence in the event of non-disclosure, on the basis that a person who uses condoms cannot be said to have acted with the recklessness required to be guilty of the offence. The Court of Appeal is, however, somewhat ambiguous on this point. (Paragraph 11: "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.")
2) In the unlikely event that someone were to deliberately intend to transmit HIV, and the second party actually sought to be infected, consent would not be a defence.
(Paragraph 58: "We repeat that the Crown did not allege, and we therefore are not considering, the deliberate infection, or spreading of HIV with intent to cause grievous bodily harm. In such circumstances, the application of what we may describe as the principle in Brown [the "Spanner" case] means that the agreement of the participants would provide no defence to a charge under section 18 of the 1861 Act.")
A full copy of today’s ruling is available here.
Further information on this website
AIDS Treatment Update, Issue 131 - the legal ramifications of the Dica case in detail
Man found guilty of English offence of grievous bodily harm after infecting sex partners with HIV - news story, October 2003
Man gets eight years in jail for infecting two women with HIV - news story, November 2003
Second English HIV transmission prosecution rings alarm bells - news story, November 2003