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“When, if ever, should one be criminally liable for infecting another person with a disease?”

Jake McMillan (Lower Sixth) - New College of the Humanities essay competition

The area of law surrounding criminal liability for infecting a person with a disease is complex, given the difficulty of proving causation. The Crown Prosecution Service (CPS) instructs prosecutors to “appreciate the complexity” surrounding this area. This essay will consider the current advice from the CPS on prosecutions of this nature and relevant statute and case law. The threshold for evidence in criminal law is high: the evidence must prove beyond reasonable doubt that the defendant (D) is guilty of the criminal charge. Furthermore, in order for liability to be possible, there must be foresight (mens rea) of risk of harm. A person must have knowledge of having a disease (or the obvious possibility of one) to be held responsible for knowingly spreading it to another. To answer this question of liability, examples will be given to explain the circumstances in which there should be liability, and reasons why.

Successful criminal convictions surrounding disease transmission have been for charges relating to assault. The Criminal Justice Act of 1988 (CJA 1988), states that cases of assault are determined by three principles: level of foresight (P1), motivation (or lack thereof - P2) and injury inflicted(P3) on the victim. The Offences Against the Person Act of 1861 (OAPA 1861) states under section 18 (s.18) that a defendant intended to wound and cause Grievous Bodily Harm (GBH), and their motive was to carry out that assault resulting in bodily harm. Section 20 (s.20), however, relates to an instance in which a defendant could foresee that the action carried out might cause GBH, but recklessly acted anyway. The final relevant offence to consider is against s.47, which is assault occasioning (causing) Actual Bodily Harm (ABH). The difference between GBH and ABH is the degree of harm – GBH is considered as “very serious” harm, and ABH minor wounds such as bruises and scrapes.

Deliberate and intentional transmission of a disease should be criminally prosecutable. For example, imagine D injects V with a virus. This sinister act is an intentional attempt to harm V, which according to OAPA 1861, is either an s.18 or s.47 offence. There is no doubt D intended to infect V, proven by their deliberate selection of a virus and injecting it into V. Depending on the severity of the harm, D should be charged with either occasioning s.47 ABH or s.18 GBH, determined by their premeditated intent. GBH, the more serious charge includes injuries that are of severe detriment to the victim’s health. In this example, D not only foresees harm to the victim, but intends to cause that harm (P1–foresight). Whether or not V actually suffers from the worst possible symptoms of the virus is irrelevant – D intentionally infected V with the virus, desiring the expected outcome, and therefore violated section 18 (P2–motive). In this example, the injury inflicted (symptoms) should be relevant only when deciding the degree of liability (p3-injury). There are occasions, however, when intentional spreading of a disease is not criminal, for example “Chicken-pox parties” as a vaccine alternative. A difference here is that all parties consent – the Children Act of 1989 states that parents have the power to consent their child to certain medical treatments. There is no offence in these scenarios. However, the intent to cause harm, major or minor, is a criminal offence, and therefore an offender should be criminally liable. Further, a reckless assault occurs without an intention and is punishable under s.20. The most common examples of reckless assault occur within close contact diseases, for example HIV. In criminal law, causation is defined as “the action from which the specific injury is caused and, incorporated with mens rea, creates the elements of guilt”. There are two types of causation: factual and legal. Factual causation is understood through the “but for” test. The test asks “but for the existence of X, would Y have happened?”. Legal causation states that the defendant must have committed a culpable act(1), and this act must have resulted in more than minimal harm(2). In example cases such as R v Mohammed Dica [2004], Dica passed this test. Dica was charged with occasioning s.20 GBH for knowingly transmitting HIV to two sexual partners. Had Dica not had sexual contact with his partners, they would not have contracted HIV. However, the outcome of this “but for” test is the same whether or not Dica knew of his diagnosis. For this reason, legal causation is more useful in these types of cases in proving liability. By not disclosing his condition to his partners, and yet recklessly deciding to have sexual contact, he is culpable for their contraction of HIV(1). Secondly, HIV, an incurable virus, will cause life-long impacts to the infected, even if it doesn’t lead to AIDS (i.e. impacts on: relationships, side effects, insurance, pregnancy, shortening of life - P3). This proves the act resulted in more than minimal harm(2). Lastly, it is important to prove mens rea in order for a defendant to be liable. In this case, Dica received a diagnosis of HIV in 1995, so he had clearly foreseen the potential harm that he could have caused his partners (p1-foresight). In 1995, the danger and transmission of AIDS was common knowledge – in 1987 the government delivered an AIDS educational leaflet entitled “Don’t Die of Ignorance” to every household. Dica’s diagnosing doctor would have informed him about transmission. It follows from this line of reasoning that, by having sex without disclosing his HIV diagnosis, he had mens rea of the act he was doing, and understood the risk he posed to his partners. There was insufficient evidence that his motivation was to infect them, so he was charged with s.20 (P2-(lack of) motive). Dica had to assume criminal liability. A key factor in convicting Dica, or any defendant in a similar position, is their choice in having sex without disclosing diagnosis, directly causing harm. If it wasn’t for the defendant’s actions, the victim would not have suffered (causation). Using this reasoning, it can be assumed in any close contact diseases where reckless transmission occurs, there should be criminal liability for an offence against s.20 of the Offences Against the People Act.

It becomes much more difficult to impose liability on a person for spreading disease when transmission is possible through coughing, sneezing or touching common surfaces. This is highly relevant now, given the COVID-19 pandemic. As of January 2021, over 100,000 people in the UK have died from COVID-19. This virus has a vast range and level of symptoms, with many carriers having no symptoms, meaning it is likely that a contagious person does not know the potential risks they pose. Testing often takes a few days, and disease transmission can occur before symptoms show. It is too early in the epidemiology of this virus to draw solid conclusions based on the laws and rules referenced: foresight, motive, injury, and the charges of assaults (s.18,20,47).

To combat the spread of COVID-19, the government has had to sacrifice the balance of laws by imposing a national stay-at-home order, as well as other prophylactic measures affecting the right to liberty. This has impacted what defines recklessness in s.20 cases. In 2019 it would not have been reckless to go to the shops with a cough, however it could be argued that it is in January 2021. It is unrealistic to class everyday acts as culpable acts of harm(1). It is also challenging for an individual, who gets sick, to prove the source of transmission. With sexual partners, it is possible to trace who might be the source of infection. However, with COVID-19, it is difficult to prove that a person is guilty of transmission when the virus is highly contagious and largely unknown. Given the difficulty validating one’s source of transmission of COVID-19, proving causation is near impossible.

The only circumstances where there should be criminal liability for the spread of COVID-19 are offences against s.18, where there is an intent to spread. While it is a criminal offence to disobey government-mandated self-isolation rules, this is not a punishment for transmitting a virus. It is solely a precaution to slow the spread. Criminal punishment for spreading COVID-19 would only be possible in cases where it could be proven that one person intentionally infected another, such as through injection. In R v Golding, the traceability of sexual partners allowed Golding to be proven as the source. Until it can be proven beyond reasonable doubt who infects whom, s.20 convictions are unlikely, as causation would be unprovable.

In conclusion, under certain circumstances, there should be criminal liability for infecting a person with a disease. Each case must be reviewed carefully, with all circumstances taken into account. The severity of the disease must be accounted for. Use of criteria, such as the three stated in CJA 1988, is useful in determining whether the defendant has committed an assault (a criminal offence). If the defendant has committed a criminal offence, they are criminally liable. However, these charges should be in the minority. There must be sufficient evidence of mens rea and actus reus (the action attributes to the harm), and the harm must be sufficiently severe to amount to an assault charge. Sometimes, liability for transmitting a disease is necessary, but these occasions should be in the minority. It is natural that diseases spread, and if every time someone got ill, they filed a criminal lawsuit, there would be too much pressure on the judicial system, proving the need for distinction between a virus-injector and someone who unavoidably contaminates a surface. Often, it is too complex to look for culpability when suffering an illness, and therefore, only under certain extreme circumstances, should there be criminal liability for infecting a person with a disease. It is more likely that the judicial system will experience an increase in COVID-19 civil liability cases, potentially related to safe work environments, providing PPE, and access to rapid testing.

Reference List

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