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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Golding, R v [2014] EWCA Crim 889 (08 May 2014) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2014/889.html Cite as: [2014] EWCA Crim 889 |
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ON APPEAL FROM Northampton Crown Court
HHJ Fowler
T20100442
Strand, London, WC2A 2LL |
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B e f o 
r e :
MR JUSTICE BEAN
and
HIS HONOUR JUDGE LAKIN
____________________
| Regina | ||
| - and - |
||
| David Golding |
____________________
Registrar of Criminal Appeals) for the Appellant
Iain Wicks (who did not appear below) (instructed by Crown Prosecution Service Headquarters) for the Respondent
Hearing date: 18th March 2014
____________________
VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Treacy:
Introduction
referred to the Full Court by the Registrar for an extension of time and for leave to appeal against conviction and sentence. We grant these applications and deal with this matter as an appeal.
re-arraignment to inflicting grievous bodily harm contrary to Section 20 of the Offences Against the Person Act 1861. On 9th August 2011, at the same court, he was sentenced to 14 months imprisonment.
relationship developed into a sexual one. By September 2009 the complainant had become ill. She was quickly diagnosed with Genital Herpes Simplex caused by virus type 2 (HSV-2). She suffered recurrences and returned to her doctor on 7th October and 19th November 2009.
responsibility for infecting her and the relationship continued. However, he subsequently admitted that he had caught the herpes virus from a previous partner. His GP records, which reported recurring genital herpes, revealed that he was first referred to a clinic in June 2007, and again in April 2008. After the complainant was infected, he returned to the clinic again with an outbreak in November 2009.
recklessly caused the complainant to become infected in circumstances where he was aware that he was infected with HSV, and where she had not consented to the risk of becoming infected through intercourse.
"(1) In the summer of 2009 I met and formed an attachment to the complainant in this case [CS].
(2) I had previously suffered from herpes and am aware that this is a sexually transmitted
(3) I did not tell [CS] that I had been diagnosed with herpes. I did not tell her because I
(4) I accept that we had sexual intercourse during our
(5) I did not intend her to catch the
recited had been prepared. In the event because of an oversight the wording to paragraph 5 was not altered, but evidence from the appellant's solicitor advocate was to the effect that the appellant understood the position and was intending to acknowledge an offence contrary to Section 20. That is an issue to which we will return later.
report from Dr Kenneth Mutton, a consultant medical virologist. He produced a report dated 13 September 2011 which was disclosed to the appellant's solicitors. In that report Dr Mutton raised two issues: (1) whether genital herpes could be described as "really serious bodily harm" so as to come within Section 20, and (2) whether it could be said that the appellant had infected the complainant with genital herpes in the absence of evidence of laboratory tests at that point.
result of that disclosure, the appellant lodged grounds of appeal and an application for bail. On 27th September 2011 Burnett J admitted the appellant to bail subject to conditions.
virologists, Dr Mutton and Professor George Kinghorn. That process was not complete until September 2013, representing an unfortunate delay in these proceedings. The matter was listed before a constitution of this court in December 2013. Regrettably that hearing had to be adjourned as a wholly inadequate time estimate had been applied to this case, particularly when it became clear that certain witnesses would need to give evidence.
various reports and the evidence he gave to the court in December 2013. The Crown sought to adduce the reports of Dr Mutton as fresh evidence. In addition, in the course of the hearing before this constitution, we were invited to receive fresh evidence from the appellant himself, his trial advocate, David Everett, and CS. We agreed to hear the evidence de bene esse and will consider its admissibility and/or impact later in this judgment.
Reckless Sexual Transmission of Infection. (2) The appellant's legal representative was at fault in failing to challenge the CPS's failure to follow its guidance, in failing to obtain its own expert report dealing with HSV, and in failing to obtain the appellant's full medical records. (3) The guilty plea to a Section 20 offence was not an informed and voluntary plea. (4) The medical evidence, including fresh evidence, was insufficient to show that HSV amounts to really serious bodily harm, and (5) there was insufficient evidence to show that the appellant infected CS recklessly or at all.
Fresh Evidence
receive all the proffered fresh evidence pursuant to our power to receive it if necessary or expedient in the interests of justice under Section 23(1), and then to evaluate it as necessary where it was relevant to one or more of the grounds put forward. We received no submissions to the contrary from either counsel, although there were submissions as to the accuracy or weight to be attached to evidence received from individuals, particularly the appellant.
Medical Evidence
report of Dr Mutton, referred to at paragraph 9 above, both he and Professor Kinghorn produced additional reports. By the end of that process there was virtually nothing between the two experts after further investigations had been carried out. There was definitive evidence that CS acquired genital herpes of type HSV-2 during the time she was in an ongoing sexual relationship with the appellant. The infection she complained of in September 2009 was her first infection. She had not previously been infected with herpes.
realistic chance of it being acquired merely by kissing.
virologically confirmed first episode of genital herpes in April 2008. There was no definitive evidence as to whether this was type 1 or type 2. Discordant types (HSV-1 in one partner, HSV-2 in the other) would exclude transmission between them. The evidence that CS's infection was acquired from the appellant was circumstantial and based on a primary infection having occurred in September 2009 at a point when she was involved in a sexual relationship with the appellant. However, there was no evidence as to the type of HSV involved in the appellant's infection.
relevant time. In a statement made for the purpose of these proceedings and in evidence given to us, CS confirmed expressly that this was the case. The proposition that the appellant was responsible for CS's infection therefore, in the view of the medical experts, depended heavily on the validity of CS's claim that she had had no other sexual partner during the relevant period.
required, (not in this case), and most affected people can return to work within a week or so. Episodes may recur throughout life. Generally when they do, they are milder and shorter in impact. Psychological disturbance is common in the immediate aftermath of the initial episode. HSV-2 has a higher recurrence rate than HSV-1.
recklessness, the experts acknowledge that the infection may be passed by a person who is asymptomatic at the time, although infections are most transmissible when there are clinical lesions present. They suggested that consideration needed to be given to the likely extent of the appellant's knowledge about the condition and its ease of transmissibility.
refers to condom use when lesions are present, the possibility of infectivity even when a person is asymptomatic, and disclosure of the condition to a partner.
respect available to general practitioners had improved. He also acknowledged that a GP following best practice would have included advice about asymptomatic transfer.
The Appellant's Evidence
relationship with CS he did not know that he had herpes, as opposed to suspecting that he had. However, at the end of his evidence he altered that account and said that when he had made a follow up call to the clinic at the end of April 2008 to obtain test results, he had been told he was suffering from herpes, although he could not remember exactly what advice he was given. His best recollection was that he was told to avoid sexual intercourse if he was having an outbreak (i.e. lesions on his penis). He said he had not had any outbreak between April 2008 and August 2009.
regret for this.
relationship with CS that he had herpes, and that he was ignorant of the fact that he had been diagnosed in April 2008.
relevant time that herpes did not go away, or saying to Mr Everett that he had had herpes for some time prior to his relationship with CS. He denied any such conversation over the phone on the morning of 18th July involving those matters or a possible change of plea. He said he had pleaded guilty because he was scared and confused, because he thought he would get a suspended sentence, and because he thought the judge would lean on the jury to find him guilty.
rather than to a Section 47 charge was the appropriate disposal of the case. The appellant said that he felt trapped, and that after that part of the hearing, Mr Everett had hardly given him any advice; although he did acknowledge that the solicitor had said that the choice of plea was his.
raised possibilities that she had been infected by another person, including a man whom she had kissed while on holiday shortly before her relationship with the appellant.
The Evidence of CS
relationship with the appellant had not become sexually active until towards the end of August 2009. CS said that she would never have slept with the appellant if she had known that he had a sexual infection.
The Appellant's Trial Advocate
reports because he had considered the materials served by the Crown and had concluded he did not need to get one because, although the Crown's evidence as served pre-trial was capable of showing that the appellant had infected CS, and that herpes was capable of amounting to grievous bodily harm, taken as a whole there was sufficient room to argue that the evidence was insufficiently clear to sustain a conviction. Thus it would enable the appellant to maintain his case that he was not guilty.
report.
records were concerned, he had been in touch with the appellant's general practitioner and understood that he had the appellant's full medical records. However, he acknowledged that he did not have the Genito-urinary Clinic's records. He had only been given limited disclosure about CS's medical history, but a statement from a Dr Maxwell showed that her records had been reviewed, and that there was no previous history of herpes.
virus on CS, and if he had done so, it was unknowingly. A part of the appellant's instructions was that on 5th June 2009 he had consulted his general practitioner, believing he was suffering from an outbreak of herpes, but was told that he was "all clear". When the general practitioner was contacted by Mr Everett, she said herpes had not been discussed at all on that occasion, and that if it had been discussed there would be reference to it in his medical notes, and there was none. Thus, it had become clear to the solicitor in the course of preparations for trial that the appellant could not call his doctor to provide support for his case in this respect.
rather than Section 20 would be acceptable to the Crown. The Crown had indicated a willingness to consider this, and in May 2011 the appellant had asked Mr Everett to explore the matter further. However, by June 2011 the appellant wished to maintain a not guilty stance.
represented a change of position by the appellant, and Mr Everett considered that it put his case in difficulties.
recklessness, and they discussed the question of seeking a Goodyear indication on that basis for about 15 minutes. As a result of that Mr Everett returned to his office and prepared a document seeking a Goodyear indication on the basis of a plea to Section 47. He also prepared the basis of plea document which we have already referred to. Mr Everett was able to tell us that those documents had been prepared at 11:12am on that morning.
view, he repeatedly made clear that it was a matter for the appellant as to whether he contested the case or not.
reflection. According to Mr Everett there was significant further discussion about whether the appellant should plead guilty to Section 20. In the end the appellant did so after a discussion of the strengths and weaknesses of the case. The solicitor was concerned that the appellant's position was weakened because of his change of position on an important matter as revealed that morning.
returned, saying he would plead guilty to the Section 20 charge, it being understood that the Crown would not proceed on a second count alleging a physical assault occasioning actual bodily harm on CS on a subsequent occasion. The appellant then signed the basis of plea document.
realise the difficulties that lay ahead.
Our Assessment of the Fresh Evidence
readily accept the credibility and accuracy of the evidence given by the medical experts, who were essentially in agreement. The effect of what they have to say on the safety of the conviction after a plea of guilty is assessed later in this judgment, including the slight difference of opinion relating to the appellant's state of knowledge of his condition.
rather than his.
relationship with any man apart from the appellant at a time which could be relevant to the outbreak of the virus which she suffered in September 2009.
rejecting that given by the appellant.
CPS Guidance
requires the DPP's principal legal adviser to be notified prior to any charging decision being communicated to the police. This did not occur in this case.
"Prosecutors should never proceed to trial in a case involving an allegation contrary to Section 20 unless there is scientific and/or medical and factual evidence which proves the contention that the defendant
required standard and an informed plea by the defendant who admits recklessly infecting the complainant. An informed plea by a defendant will be based on his knowledge of a diagnosis of sexual infection, taken with the scientific medical and factual evidence provided prior to entry of plea. The Code suggests that whilst a defendant may know the content of his medical records, he could not be expected to know more complex information relating to the strain of infection he had or his level of infectiousness at any particular time. It was submitted that there had been a failure to observe this guidance.
reliance on those matters, Mr Gladwell also relied on what he said was the Crown's failure prior to plea to exclude the possibility of another person being the cause of CS's infection. This is important since the Code states that failure to rule out such a possibility would mean that there would be insufficient evidence to proceed.
reason of a lack of relevant information. Mr Gladwell realistically acknowledged that the first failure identified, namely to follow internal procedures and notify the principal legal adviser, was not a factor which could advance his case. Whilst he did not suggest that he could mount an abuse of process argument or indeed rely on failure to follow the guidance as constituting a defence or bar to prosecution, he submitted that these failures were relevant to the question of whether the appellant's conviction could be regarded as safe. The matters raised went to the core question of whether the guilty plea was an informed one.
right not to attempt an abuse of process argument or to suggest that a conviction should be quashed on some broad basis of unfairness due to a failure to follow policy guidance. In this context we draw attention to R v A [2012] EWCA Crim 434 and in particular the observations of Lord Judge CJ at paragraphs 79 to 87. See also R (Barons Pub Company Limited) v Staines Magistrates' Court & Others [2013] EWHC 898 (Admin). In the absence of oppression or misconduct the decision to prosecute is for the prosecutor and an erroneous failure to apply policy or guidance will not affect the position. The task of the Crown Court, and this court if the matter goes to appeal, is to deal with the case on the merits. If the failure to adhere to policy guidance means that there is an insufficiency of evidence, then the remedy is in the court's hands.
referral to the principal legal adviser, which we consider to be irrelevant, it does seem to us that there was a failure fully to put into effect the CPS guidance. Although there was, in our judgment, a failure to obtain, in particular, detailed medical and/or scientific evidence of the sort envisaged, medical and factual evidence had in fact been gathered and served by the Crown, and the matter proceeded to a trial. Any shortcomings, including insufficiency of evidence, could have been addressed by the trial process. In these appellate proceedings complaints relating to a lack of safety in the conviction can be dealt with by admitting and examining the fresh evidence, particularly in relation to the issues of whether the appellant infected CS, whether the harm done amounted to grievous bodily harm, and whether the appellant was reckless.
The Evidence at Plea
referred to earlier.
resulting in excruciating pain. Tablets and cream from a nurse had been of no effect and she had had to call out the emergency doctor. After that the symptoms continued to worsen. After diagnosis CS felt "absolutely disgusting and dirty" and "soul destroyed and inadequate". She had not slept well. She was in constant fear of a new outbreak, and her mental state fluctuated. It was implicit in what CS said that she had not had any relationship with another male at a relevant time.
recurrence requiring treatment in November 2009. He confirmed from CS's records that she had no previous history of herpes. He stated that there would be a recurrence of painful genital ulcers, and that there was no cure for the condition.
recurs. He stated that the first onset of genital herpes is always very severe and that thereafter recurrences are less severe. He noted that the appellant had previously been diagnosed with genital herpes, and that in November 2009 his medical records showed a recurrence, thus demonstrating that he had been infected before his sexual relationship began with CS in August 2009. The timing of CS's outbreak of herpes coincided with transmission during a sexual relationship with the appellant. Dr Mohanty described herpes as "a devastating condition".
raise a prima facie case against this appellant. There was sufficient to enable a properly directed jury to conclude from all the circumstances that this appellant was the person responsible for infecting the previously herpes-free CS. The evidence of the painful symptoms, their effect at the time, their recurrence, and the prospect of their recurrence without effective cure for an indefinite period was in our judgment sufficient for a jury to consider that it amounted to really serious bodily harm.
result of learning of her infection. As Dhaliwal [2006] 2 Cr App R 24 makes clear, the ambit of bodily harm is restricted to recognisable psychiatric illness and does not cover psychological disturbance. There was no such evidence before the court, merely CS's account of how she felt. This would be insufficient to constitute bodily harm.
really serious bodily harm, but it is not necessary that the harm should be either permanent or dangerous. See R v Ashman [1858] 1 FF 88. It is not a precondition that the victim should require treatment or that the harm should have lasting consequences. In assessing whether the particular harm was grievous, account has to be taken of the effect on and the circumstances of the particular victim. See R v Bollom [2004] 2 Cr App R 6 at paragraph 53. Ultimately, the assessment of harm done in an individual case in a contested trial will be a matter for the jury, applying contemporary social standards.
relationship with the appellant, her absence of previous history and the appellant's previous history. His initial lies to CS, and his admissions in the note (CMES/1) are also relevant in this context.
recklessness, a jury might properly infer that state of mind from the evidence of appellant's admitted history of suffering from herpes prior to September 2009, and his acknowledgement that he should have told CS of his history prior to embarking upon a sexual relationship with her.
R v Dica [2002] 2 Cr App R 28 indicates, a person who is suffering from a sexual disease and who has sexual intercourse with a partner, not intending deliberately to infect her, but knowing that she was unaware of his condition, may be guilty of recklessly inflicting grievous bodily harm. There is no necessity for an assault to have been committed before there can be an infliction of grievous bodily harm. See R v Ireland & Burstow [1998] 1 Cr App R 177. As Dica shows, the decision as to the constituent elements of a Section 20 charge are fact and case specific and matters for a jury to consider. Obviously if a defendant enters an informed and voluntary plea of guilty, he is to be taken to acknowledge that the necessary elements of the offence are established.
room for this appellant to have argued before a jury, or indeed to a judge at the close of the prosecution case, that the evidence was insufficient on one or more of those elements, but that is not the test. The question is whether there was evidence upon which a jury could properly convict. It seems to us that as matters confronted this appellant on the day appointed for his trial, there was sufficient evidence to sustain a Section 20 case against him.
Failings by the Solicitor
robust evidence than was presented to the court does not detract from the fact that the Crown had presented sufficient evidence to render a conviction of Section 20 possible. On the basis of the materials we have seen, Mr Everett appears to have been a conscientious defence solicitor. Whilst he might have sought his own expert report, as will be seen, the additional fresh medical evidence would not materially have advanced the appellant's case. If Mr Everett had obtained the appellant's records from the Genito-urinary Clinic, they would have confirmed that the appellant had been diagnosed with herpes, but would not have shed light on what advice was given to the appellant. The appellant was known to have previously been diagnosed with herpes and had admitted as much to the police and to CS. To this day it is not scientifically proven that the appellant suffered from HSV-1. It would have been legitimate for Mr Everett, had the matter proceeded to a trial, to exploit such potential gaps as existed in the Crown's case.
An Effective Guilty Plea?
voluntary, our conclusion as to what occurred on 18th July is plainly important. We have earlier rejected the appellant's account of events on that day and accepted that of Mr Everett. We are entirely satisfied that there were detailed discussions about the relevant issues in the case, the strengths and weaknesses of this appellant's position, and the potential sentence available to the judge. The judge's indication at the Goodyear hearing that he considered a Section 20 rather than a Section 47 plea as the appropriate one was an indication he was entitled to give. He repeatedly made plain that the appellant was free to contest the matter and take issue as to any of the elements in the case.
view as to the way in which the judge was likely to view a suggestion that this infection did not amount to grievous bodily harm if there were a trial, and he communicated this in strong terms to his client. Whether he was pessimistic or not in this respect may be a matter of impression, but what is clear to us is that he set the various issues out before his client, and left it to his client to make his own decision. We accept, even allowing for the pressures which any defendant in this situation will experience, that this appellant understood the options, and after due consideration made a decision to plead guilty to the Section 20 charge. Having seen Mr Everett, we entirely accept that he would have been careful to go through the basis of plea document in detail as part of the process that day.
real choice in the matter, he acknowledged that Mr Everett had told him that the decision was his, and although he knew he would get credit from pleading guilty, he was also aware of the real possibility of imprisonment.
voluntary. This was an unequivocal plea of guilty, freely made. In our judgment, there is nothing in the conduct of or advice given by Mr Everett which could undermine the appellant's acknowledgement of guilt.
The Effect of the Fresh Evidence
Inflicting
reinforced the Crown's position in our judgment. It is now proved conclusively that CS suffered from a primary infection as opposed to a recurrence of an earlier infection. The short incubation period points strongly towards the appellant. Additionally, the experts regard CS's explicit confirmation, which we have accepted as true, that she had no other partner at any relevant time as a crucial factor in confirming the strength of the circumstantial evidence. Accordingly, the case against the appellant is strengthened rather than weakened.
Grievous Bodily Harm
rather than the experts. We have already concluded that the combination of CS's evidence and the originally served medical evidence was sufficient to establish a prima facie case in this respect. There is nothing in the fresh medical evidence which invalidates that assessment. To the extent that Dr Mutton and Professor Kinghorn may have tended towards the view that infection with HSV-2 was actual bodily harm rather than grievous bodily harm, (and neither expressly said so), that is not a matter for them.
report prepared about ten days after the guilty plea was entered, that the appellant admitted to the probation officer that he was:
"…fully aware he had the disease and that he should have been open and honest with the
voluntarily put before the court.
report records that the appellant stated that he knew he was infectious if he had an outbreak and that he had had such an outbreak in July 2009 shortly before entering his relationship with CS. When the appellant was asked about this before us, his somewhat unconvincing answer was that he could not recall saying this, or indeed the comments set out at paragraph 78 above.
represented by Mr Everett and, consistent with the pre-sentence report, there was no suggestion that the appellant wished to resile from his plea or from any element of it. The appellant had made damaging admissions in the note (CMES/1) and to the police, and he made, as we have found, important concessions to Mr Everett on the morning of 18th July which led to the creation of the basis of plea document.
view between the experts, in the absence of concrete evidence as to the advice given to the appellant as to his infectiousness, it seems to us that the difference of emphasis in their evidence is immaterial given the other evidence as to the appellant's state of mind.
recklessness. That was, in any event, a matter primarily for the appellant based on his own state of knowledge. There is nothing to detract from the effect of the appellant's admission by his plea that he knew that there was a risk and went ahead anyway. If anything his position in relation to this issue is weakened by the additional material contained in the pre-sentence report.
Conclusion
reasons none of the grounds of appeal put forward can succeed. Accordingly, this appeal against conviction is dismissed.
Sentence
recur at intervals. Whilst we could not when analysing grievous bodily harm take account of the significant emotional effects of the fact of infection upon her, we are fully entitled so to do in considering for the purposes of sentence the harm she has suffered, and will continue to suffer.
recklessly rather than deliberately infected his victim, we are not persuaded that any proper criticism can be levelled at the sentence imposed.
result of his imprisonment the appellant lost his job which he had had for about three years. We are satisfied that since being released on bail he has made very strenuous efforts to obtain employment, but without success. We accept that he has applied for several hundred vacancies, but has disclosed the fact that he is on bail appealing against conviction and sentence. Perhaps unsurprisingly no one has been prepared to take him on. He has found this demoralising, having been constantly in full time employment since finishing his education at 18. He now has a long-term partner with whom he lives and they have a young child.
reality from his point of view is that his life has been "in limbo for a long time" pending the resolution of this appeal. This matter has been hanging over his head for some two and a half years, that delay being none of this appellant's making.
reporting regularly at a local police station. Those conditions have been faithfully observed and the appellant has not reoffended. He has no doubt had the anxiety of these impending proceedings to deal with, along with the prospect of a return to custody.
recognised that a court should take account of the effects of substantial delay in the process, and additionally, we accept that the delay has had a detrimental effect on this appellant's life. In all the circumstances we have come to the conclusion that, exceptionally, we should not take a course which will necessitate a return to custody after all this time. Accordingly, notwithstanding our view as to the propriety of the initial sentence, we exercise our power to reduce that sentence in the light of what has occurred subsequently.