Facts
Dica knew he was HIV positive. He had unprotected sexual intercourse with two women who did not know of his condition and who each became infected with HIV. He was charged with two counts of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861.
History
At trial the judge ruled that the consent of the complainants could not be a defence to the section 20 charges, and the consent issue was withdrawn from the jury. Dica was convicted on both counts and appealed to the Court of Appeal.
Issue
Whether reckless transmission of a serious sexually transmitted infection can amount to inflicting grievous bodily harm under section 20, and whether the consent of a sexual partner to the risk of infection can be a defence.
Held
Appeal allowed and the convictions quashed, with a retrial ordered. Reckless transmission can fall within section 20, and the consent of the complainants to the risk of infection was capable of being a defence which should have been left to the jury.
Ratio
- A person who, knowing of his infection, recklessly transmits a serious disease through sexual intercourse can be convicted of inflicting grievous bodily harm under section 20. The older view that this could not be done because there was no assault is not to be followed.
- Consent is a defence if the sexual partner knew of the risk of infection and accepted it. Consent to sexual intercourse alone is not consent to the risk of infection, so concealment of the infection means the defence is not available.
The judgments
Judge LJ (lead)
Delivered the judgment of the court. He held that the reasoning of Clarence was not to be followed on the meaning of inflict after the House of Lords decision in Burstow, that Brown did not prevent consent from being a defence because the case concerned deliberate infliction of harm, and that the trial judge had wrongly taken the issue of consent from the jury.
Key reasoning
- Section 20 requires infliction of harm, which does not need an assault. The House of Lords had read the word inflict in this way in Burstow, and a disease transmitted through sex can be harm inflicted.
- The decision in Brown concerned consent to deliberate infliction of harm for sexual gratification, whereas here the harm was not the object of the encounter, and personal autonomy supports allowing consent to the risk.
- The prosecution must prove absence of consent, which in a case of transmission means proving that the partner did not know of the risk and accept it.
Where it fits in the module
In the Non-Fatal Offences topic the case tests the limits of consent as a defence to bodily harm and the interaction with Brown. It also tests the meaning of inflict in section 20, the use of recklessness, and the role of autonomy against public health policy. Later decisions such as Konzani, which required honest belief in consent to the risk, and the debate on criminalisation of transmission, form part of the discussion.
Criticisms
- Criminalising reckless transmission burdens people who know they have an infection and may discourage testing, so the decision can work against public health aims.
- The distinction drawn from Brown is hard to sustain: consent to a risk of serious harm is permitted here but not consent to deliberate harm in a sexual context, and the line is drawn on moral grounds that are not fully explained.
- The requirement of informed consent to the risk of infection places weight on disclosure and honest belief and sets a standard that is uncertain in practice, and the court extended the criminal law through case law rather than leaving it to Parliament.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself on Find Case Law. Spotted an error? Tell us.