The Offences Against the Person Act - Coursework Example

The present range of offences is inappropriate to deal with the problems arising from the infecting others with, transmitted diseases, for example, HIV/AIDS. Critically discuss with examples from cases or authorities. Provide a balanced and researched paper, cit comparisons from other Criminal Juristictions(France,USA and Australia).Use sections 18, 20 and 47 from Offences against the person Act. Where is Uk legislation stands on transmitted diseases. The response to the sexual transmission of HIV and AIDS is very similar globally. In several countries infecting another person with the disease either intentionally or recklessly is regarded by in la was illegal. Charges such as murder, manslaughter, attempted murder and assault have been used to varying degrees to reflect the government stance on preventing the spread of the disease. America has enacted specific laws to criminalise the activity of those that spread the disease, whilst the UK relies on existing laws to prefer charges. At present within the UK those deliberately or recklessly infecting others in the manner described above are likely to find themselves charged with offences covered by the Offences Against the Person Act 1861. To date those who have been found guilty have been convicted under s20 of this Act. Under this section the charge preferred is one of recklessly inflicting grievous bodily harm. The cases of R v Konzani1 and R v Dica2 are examples where the courts applied section 2 of the OAPA where the defendants recklessly infected others with HIV. When deliberating on what charges can be brought against those who infect others with HIV the courts will look for proof that the person is aware of their condition that they know the risk of transmission, and they are aware that it passes through sex. People in these circumstances have been found guilty of recklessly inflicting grievous bodily harm. In the case of Dica the court of appeal accepted a submission from the defence that the infected person had consented to the risk of transmission overruling the previous decision of the court where Dica had been found guilty of infecting the injured party. The case of Konzani followed a similar line on consent with the Court of Appeal clarifying how consent should be determined3. In this case, the court of appeal stated that they would only accept that the injured party had consented to the risk, if the defendant can prove that the injured party had been fully informed of their condition, and had made a conscious decision based on that knowledge. Agreeing to unprotected sex could not be viewed as consent to the risk of contracting HIV. The current guidelines on charges that can be brought against someone infecting another with HIV or AIDS are not very clear. There are a lot of ambiguities and it is not entirely clear from the present legislation whether he defendant has to have been diagnosed with HIV before they can be found guilty of reckless transmission. The case of Kouassi Adaye would appear to suggest that a diagnosis of HIV is not necessary. In this case the defendant was sentenced to 6 years for infecting someone with HIV. Mr Adaye had not been diagnosed with HIV but he had been diagnosed with other sexually transmitted diseases. The court held that he was criminally reckless as he had been told that there was a high risk of him being HIV positive due to the diagnosis of the other sexually transmitted diseases. Mr Adaye had been offered an HIV test following the diagnosis of the other diseases but had declined. Legislation is also not clear as to whether the transmission of HIV to another is limited to transfer via unprotected anal or vaginal intercourse or whether any transfer of body fluids could lead to a prosecution. There is also lack of certainty as to whether a defendant might still be prosecuted if they had used a condom but the person with whom they had had sexual intercourse had still contracted the illness. The OAPA also fails to mention how other sexually transmitted illnesses might be dealt with in relation to charges. Although these uncertainties need to be addressed the criminal justice system has to be mindful of the civil rights and human rights of those that are living with HIV. Most of the initiatives concerning the criminalisation of the transmission of illness and disease has come from within the police and the Crown Prosecution. In the Government White paper Violence: Reforming the Offences Against the Person Act 1861 issued May 1 1998 the Government addresses the issue of transmission of illness and disease. In this paper the Government recognised the recommendations by the Law Commission that the reformed Act should enable the intentional or reckless transmission of disease to be subject to criminal prosecution, though they did not fully accept this recommendation. At para 3.14 of the White paper the Government examined the present position on this matter. In their opinion the case of Clarence 18884 indicated that the unreformed 1861 Act could not be used successfully to prosecute reckless transmission. They did feel that the Act could be used were the transmission was intentional and relied on the authority in Ireland5 and Burstow6 where the Act was used to prosecute the defendant for inflicting psychiatric harm on his victim. The debate in the Paper centred on the difficulties that might be caused by the reforms by criminalising the transmission of illness or disease. The Government were concerned that the reformation could lead to a range of normal everyday activities becoming subject to prosecution if the subject recklessly infects another. There was a danger that the reforms might be interpreted to cover minor illnesses such as measles or chickenpox as these have the potential to be life threatening illnesses in some extreme circumstances. Whilst not wanting the reforms to be so draconian that such minor illnesses could be subject to prosecution the Government did not want to specifically target HIV and AIDS as this could be seen as discrimination against those that have been diagnosed with these illnesses. They felt that criminalising the transmission of these illnesses might result in less people undergoing the tests for these conditions and thereby not being able to get the treatment they need to prolong their life. The Government felt that the fear of prosecution would result in less and less HIV sufferers making their condition known and refusing treatment or diagnosis to avoid a potential prosecution if the recklessly passed the disease to another. The Government decided it would be wrong to exclude the transmission of disease totally from the criminal law and made the decision that the criminal law should only apply where it can be proven beyond reasonable doubt that the defendant had deliberately transmitted the disease to another intending to cause that person serious harm. Since 1998 no further recommendations have been made by the Government to change the existing law in this area. The use of s18 of the OAPA to prosecute the defendant for causing intentional grievous bodily harm has been reduced down to reckless transmission on conviction as proving intent to harm is extremely difficult in the case of HIV transmission. In Scotland the courts found Stephen Kelly guilty of reckless injury is 2001 when he transmitted the disease to another. Reckless injury is only a common law offence in Scotland and as the defendant did not appeal against this decision the scope of Scottish law regarding such offences has not been detailed. Scottish law is different from the law in England and Wales and therefore the OAPA does not apply. Although the terminology in Scotland is different the application of the laws in this area does not appear to be significantly different to the UK. In Scotland it is theoretically possible to bring a prosecution for reckless endangerment which could encompass HIV transmission as reckless exposure to the risk of such infection. In English law the courts do not have such an option unless the courts can prove intention to transmit the disease. In Scotland such prosecutions are brought by the Prosecutor Fiscal Service and the Crown Office. The National AIDS Trust has challenged the criminalisation of the transmission of HIV with several discussions having taken place between those living with HIV, lawyers, doctors and those representing people with HIV. Since 2003 there have been 9 convictions for the transmission of HIV. In the majority of these cases the accused pleaded guilty to reckless transmission and were dealt with on this basis. Only Dica and Konzani were found guilty of intentional transmission. In 2006 Mark James was the first gay man to be convicted for reckless transmission. Later that year a second gay man was acquitted when scientific evidence was adduced showing that the virology report could not prove the route of the transmission. As the OAPA was not drafted to cover disease transmission there are serious problems with its application in these cases. Other countries have specific criminal sanctions for dealing with the transmission of disease in general as well as specific legislation for HIV transmission. Those countries with such criminal penalties in operation tend to have a higher proportion of people who are infected with HIV. This might suggest that the prospect of criminal prosecution has actually increased the transmission of the disease. When using the criminal law to deal with HIV transmission it may be necessary for those prosecuting to have to order the clinics and support organisation for HIV sufferers to disclose records and notes of the patient. This could have the knock on effect of sufferers being unwilling to seek help and support for fear of their records being used against them. This could also leas to HIV sufferers not disclosing the details of former partners thereby increasing the risk of further transmission by their ex partners who are unaware that they might have the disease. The decline in testing for the virus is also likely to happen as sufferers would not be able to defend a charge of reckless transmission if they have knowledge of their positive testing for the disease. In the past those who have HIV that have engaged in unprotected sex have been told to advise their partner to seek Post-Exposure Prophylaxis. With the possible risk of prosecution for reckless transmission such advice to the partner can be treated as an admission of the criminal offence. The courts rejection of the defence of consent on the part of the victim has a serious effect for the defendant. It has been argued unsuccessfully in the courts that the victim by agreeing to unprotected sexual intercourse is also consenting to the risks attached to such an action. It would clearly be different if the person infected with HIV lied to the victim and did not disclose their condition in full knowledge of the risk of transmission though unprotected sex. In order for the system to be more just the Government should look towards alternative ways of dealing with reckless transmission. Most such actions are instigated by the victim who is angry at the defendant for having passed the disease to them. As the only option is a criminal charge the victim has to resort to bringing such charges. If an alternative way of dealing with their anger was available such as a civil remedy it is likely that the victims would adopt this method. In a paper produced by UNAIDS entitled Criminal Law, Public Health and HIV Transmission, June 2002 the paper made the point the ‘Criminal sanctions may be appropriate in the case where consent to engage in risky activity is obtained by deliberate deceit regarding HIV status. It is recommended that criminal sanctions not be applied for the mere non-disclosure of the HIV positive status.’ In Africa the African HIV Policy Network looked at the issuing of the criminalisation of HIV transmission. A community forum entitled ‘HIV Criminalisation: What are the Implications for African Communities? How do we respond?’ held in October 2004 attempted to address the issue and examine the implications behind the criminalisation of HIV transmission. The AHPN’s major concern was for the African communities within the UK becoming targeted and labelled as criminals for failing to disclose their HIV status. The fact that the first 3 people to be charged under the OAPA for HIV transmission were of African origin has strengthened the fear of the AHPN that African communities are being singled out. A report complied by The Global Network of People Living with HIV/Aids Europe7 and the Terence Higgins Trust showed that there are at least 36 European countries where the transmission of HIV can be classed as a criminal offence. In Austria, Sweden and Switzerland more than 30 people in each country has been prosecuted for such an offence. Countries such as Albania, Bulgaria, Luxembourg, Slovenia and the Republic of Macedonia have refused to criminalise HIV transmission or exposure. The report expresses its concerns that the criminalisation of HIV transmission is on the increase and debates on how this might affect those facing criminal charges. The report carried out a survey to discover how charges are brought within the different countries. The survey highlighted that some countries have specific HIV legislation whereas others rely on general criminal law to bring such charges. 22 of the countries that responded to the survey required intent for the charge to be made out. The Netherlands specifically criminalises reckless behaviour and 9 of the European countries criminalise negligent behaviour. V HIDenmark, France, Germany, the Netherlands, Norway, Poland, Russia, Sweden and the Ukraine treat exposing another person to the risk of HIV transmission as an offence. Where HIV exposure has been punished most of these countries have specific laws dealing with HIV. Georgia is one exception. Georgia enacted laws against HIV exposure based on the UNAIDS recommendation in 2002. The most common form of punishment in these cases is imprisonment. In some countries there are alternate punishments or additional penalties. In Armenia a convicted offender can be made to do enforced correctional labour. Other countries such as Germany, Iceland, Ireland, Portugal and Switzerland have used the imposition of fines, sometimes in place of imprisonment but on other occasions in addition to imprisonment. Damages have been as high as 80,000 Euros in Sweden where isolation has also been used as a form of punishment. The UK is among the countries to have used deportation as a form of punishment. This form of punishment has als been employed in Austria, Finland, Sweden and Switzerland. Throughout Europe there have been 130 convictions for HIV transmission. Over 90% of these convictions have occurred where the transmission happened during consensual sex. The first prosecution for HIV transmission in Sweden was in 1992. Since the introduction of criminal charges for HIV transmission most of those who have been convicted have been of African origin. Mist countries issue sentences of between 5 to 7 years for this offence. One of the biggest criticisms of the criminalisation of HIV transmission is that on many occasions imprisonment or deportation can lead to the defendant being able to receive the treatment they need for their condition. It has been argued that the discontinuation of effective treatment or deportation is a violation of the human rights of the defendant though to date no such actions have been brought against the countries responsible. It has also been suggested that deportation may violate Article 8 of the European Human Rights Charter if the defendant will be separated from his family as a result of the deportation. The use of isolation in Sweden might also raise a cause of action under Article 5. In America charges are brought against defendants for Criminal Transmission. Criminal transmission has been used in many countries in Europe. Cyprus was one of the first countries were a defendant was charged with deliberate transmission. In March 1997 Pavlos Georgiou, March 19978: was found guilty of deliberately infecting his British lover and he was sentenced to 15 months in prison. In America Dr Richard J. Schmidt, 19989 was found guilty of injecting his lover with HIV infected blood after she attempted to end their relationship. He was sentenced to 50 years imprisonment for his actions. In 1998 Brian Stewart was found guilty of deliberately injecting his son with HIV blood to avoid paying child support by killing him10. In France in 2004 Christophe Morat was found guilty of failing to disclose his HIV status to 2 women and he was sentenced to 6 years using French legislation that was designed to be used in poisoning cases11. One of his victims has formed an action group Femmes Positives to try to persuade the French Government to create laws relating to HIV transmission. At present the doctrine of ‘shared responsibility in contraception remains. From the above it can be noted that there is no uniformity in the ways in which HIV transmission is handled globally and that although there are many similarities in the prosecution of those who infect others with the disease there are very few countries with specific HIV legislation. The research that has been carried out by the various organisations seems to suggest that specific legislation may not be the answer as this is likely to ostracise those with HIV and might also impact on the number of those who seek treatment or diagnosis of their condition. The present legislation does little to assist with the problem and imprisonment seems to be an extreme response in some cases. Where the transmission is intentional imprisonment is justified and should continue. However, where the transmission is reckless or unintentional alternative forms of punishment should be available. This can only be done by finding alternative ways to placate those who have been infected by the accused. Civil remedies might be the solution in some instances along with counseling and placing requirements upon those infected to take all steps to minimise the risk of future transmission. The conclusion to be drawn from the above is that the present system is inadequate for dealing with reckless transmission. The Government should be encouraged to find alternative ways of dealing with these issues rather than criminalising the transmission. 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App. R. 144; (1996) 160 J.P. 794; Times, July 30, 1996; [1997] Crim. L.R. 452; (1996) 160 J.P.N. 1156; (1996) 93(35) L.S.G. 32; (1996) 140 S.J.L.B. 194 (CA (Crim Div)) R. v Clarence (Charles James) (1889) L.R. 22 Q.B.D. 23 Crown Cases Reserved, R. v Dica (Mohammed) [2004] EWCA Crim 1103, [2004] Q.B. 1257 R. v Konzani (Feston) [2005] EWCA Crim 706 [2005] 2 Cr. App. R. 14 (2005) 149 S.J.L.B. 389 Table of Statutes Offences Against the Person Act 1861 Read More