REGINA v EB

Factual and Procedural Background

On the night of 1st April 2005, the complainant, after leaving a club, encountered the appellant at a bus stop. The appellant, wearing a fluorescent neck band, gave one to the complainant, who collected such bands. They subsequently walked to a nearby street where sexual intercourse occurred. The prosecution alleged the intercourse was without the complainant's consent, involving a prolonged assault, while the appellant claimed the intercourse was consensual. The jury rejected the appellant's account and convicted him of rape on 7th February 2006, sentencing him to 11 years' imprisonment and recommending deportation. The appellant, who is HIV positive and aware of his status since 2001, did not disclose this to the complainant. The appellant appealed against his conviction with leave of the Single Judge.

Legal Issues Presented

1. Whether the appellant's HIV positive status was relevant and admissible evidence in determining the complainant's consent to sexual intercourse under the Sexual Offences Act 2003.
2. Whether the appellant's HIV status should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 due to its prejudicial effect.
3. Whether non-disclosure of HIV status vitiates consent under the relevant sections (74, 75, and 76) of the Sexual Offences Act 2003.
4. Whether the appellant could reasonably believe in the complainant's consent, considering his HIV status and non-disclosure.

Arguments of the Parties

Appellant's Arguments

• The appellant's HIV status was irrelevant to the issue of consent in the rape charge.
• The judge's ruling to admit the HIV status evidence and his jury direction were legally incorrect.
• The Sexual Offences Act 2003 does not address implied deceptions such as non-disclosure of sexually transmissible diseases, and thus the law remains unchanged from prior to 2003.
• Reference to R v Dica was made to support the position that non-disclosure of HIV status does not vitiate consent to sexual activity.

Prosecution's Arguments

• The appellant's HIV status was relevant to the jury's consideration of whether the complainant consented, as consent requires freedom and capacity to make a reasoned choice, which includes being aware of relevant facts such as HIV infection risk.
• Non-disclosure of HIV status could impact the complainant's ability to consent and the appellant's reasonable belief in consent.
• Section 74 of the Sexual Offences Act 2003 requires the person consenting to have all relevant facts, including the risk of HIV infection, to make a valid consent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Dica [2004] 2 Cr App R 28	Clarified that non-disclosure of HIV status does not vitiate consent to sexual intercourse, but may constitute an offence under section 20 of the Offences Against the Person Act 1861 if infection results.	The court relied on this precedent to confirm that the Sexual Offences Act 2003 did not alter the legal position that non-disclosure of HIV status does not invalidate consent to sexual activity.

Court's Reasoning and Analysis

The court analysed the relevance of the appellant's HIV positive status under sections 74, 75, and 76 of the Sexual Offences Act 2003. Section 74 defines consent as agreeing by choice with freedom and capacity to make that choice. Sections 75 and 76 provide evidential and conclusive presumptions about consent but do not address implied deception or non-disclosure of sexually transmissible diseases.

The court noted that the appellant's counsel correctly submitted that the 2003 Act did not change the law regarding implied deception, such as failure to disclose HIV status. The court referred to the R v Dica judgment, which established that while non-disclosure of HIV status does not vitiate consent to sexual intercourse, it may lead to liability under other offences if infection occurs.

The court recognised that consent remains valid despite non-disclosure of a sexually transmissible disease; however, such non-disclosure may impact defenses related to harm caused by the sexual activity. The court emphasised that these issues are complex and more suited to public and social policy debate rather than judicial determination.

Regarding the appellant's reasonable belief in consent, the court found that if consent was not vitiated by non-disclosure, the question of reasonable belief did not arise. Furthermore, the court held that the evidence of the appellant's HIV status was highly prejudicial and should have been excluded under section 78 of the Police and Criminal Evidence Act 1984.

Consequently, the court determined that the admission of the appellant's HIV status was erroneous and prejudicial, warranting quashing of the conviction.

Holding and Implications

The appeal is allowed, and the conviction is quashed.

The court ordered a retrial on the single count of rape with a fresh indictment and representation for the appellant. The appellant is to remain in custody pending retrial. Reporting restrictions were imposed to anonymise the case and exclude the court's name and location, particularly to prevent disclosure of the appellant's HIV status, which was deemed inadmissible in the initial trial.

No new legal precedent was established; rather, the decision reinforced the existing legal position that non-disclosure of HIV status does not vitiate consent under the Sexual Offences Act 2003 and that highly prejudicial evidence should be excluded to ensure a fair trial.