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Moot

Feb 16, 2016 | 0 comments

Feb 16, 2016 | Essays | 0 comments

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Moot

 

Your Ladyship this is a response from my client on an appeal to the Court of Appeal against conviction of Mr Snow with the ground of appeal being whether the decision of the judges in the case of Dica [2004] QB 1257 is applicable where the transmitted disease is curable and not treated.

Your Ladyship, the Court of Appeal in R v Dica appeared to address myriad of issues of HIV infection alongside other associated risks with intercourse, particularly the transmission of gonorrhea and syphilis. It is on this ground the case, Your Ladyship, that the earlier ruling of the case of Dica [2004] QB 1257 is applicable in the case of R v Snow delivered by Judge Stark because in the case of Dica [2004] QB 1257, the disease in question was HIV and it also addressed other related sexually transmitted diseases.

Your Ladyship, the argument of the appellant that the case of Dica [2004] QB 1257 is not applicable in the present case of R v Snow since it is based on the argument whether the transmitted disease is curable and not treatable. Your Ladyship, the argument of the appellant lack any fundamental backup and reasonable ground. In my first submission, I wish to allude to the case of R v Clarence which I believe the appellant will be quick to quote. The case held that there should be no convictions in the cases that involve sexually transmitted diseases which syphilis falls without an assault. The case of R v Clarence involved gonorrhea transmission from husband to wife during a sexual intercourse that was consensual, is not distinguishable from the present case of R v Snow. Your Ladyship, it is important to point out that both the high court judge and the appeal court judge disapproved and quashed continued application of the authority of R v Clarence decision since it was undermined by the removal of the exemption of the marital rape and the acceptance by the judiciary that bodily harm that are grievous both on psychiatric and physical, could be inflicted, for the purpose of the section 20 of the 1861 Act, an assault absence.

Your Ladyship in this case study, in his ruling, Judge Stark directed the jury that they were open to convict Mr. Snow under section 20, overruling the previous authority in the case of R v Clarence. The fact is that syphilis is a sexually transmitted disease that can be treated while HIV is incurable. However, both are severe sexually transmitted disease and therefore the case of Dica [2004] QB 1257 is very much applicable in the present case of R v Snow.

Your Ladyship, the the case of Dica [2004] QB 1257 also relied on the decision of the House of Lord in R v Brown case which stated that whether or not the complaints knew of the HIV status of the defendant was irrelevant, since consent cannot be a defense to such serious body harms inflicted upon the complainants. Given that the case of Dica [2004] QB 1257 relied on the decisions of the case R v Brown which specifically stated HIV which is sexually transmitted diseases like syphilis, makes it applicable in the case of R v Snow. HIV is a very serious disease just like syphilis and given the fact that both are severe diseases, it will be be fair to rely on rulings based on HIV to apply on both curable and treatable diseases like syphilis.

Spencer in his analysis, Your Ladyship, rightly pointed out that given the fact that transmission of HIV takes place between partners just like syphilis, in the context of voluntary sexual encounters that command respect, does not give grounds to fail to intervene or even punish the wrong doing. That said, Your Ladyship, it might be just and fair for the Court of Appeal to apply R v Dica case into this present case since HIV is very severe disease like syphilis despite the fact that it is incurable and syphilis is treatable

References

Chalmers, J. (January 01, 2002). The criminalisation of HIV transmission. Journal of Medical Ethics, 28, 3, 160-3.

Davies, M. (January 01, 2004). R v Dica: lessons in practising unsafe sex. Journal of Criminal Law London-, 68, 498-506.

Priestley, W. J. (April 01, 2004). Standard of Evidence and the Offence of Excess Alcohol,R (Huntley) v Director of Public Prosecutions; Inflicting Grievous Bodily Harm by Infecting with HIV,R v Dica; Evidence of Recent Complaint in Sexual Offences,Spooner v R; Covertly Recorded Mobile Phone Conversations as Evidence,R v E. The Police Journal, 77, 2, 174-187.

Section 20 of the 1861 Act.

Spencer J, R. (March 12, 2004). In the first of a two-part series, J R Spencer QC discusses criminal liability for reckless infection. The New Law Journal, 7119, 384-385.

Warburton, D. (January 01, 2004). A Critical Review of English Law in respect of Criminalising Blameworthy Behaviour by HIV+ Individuals. The Journal of Criminal Law, 68, 1, 55-77.

Weait, M. (January 01, 2005). Criminal Law and the Sexual Transmission of HIV: R v Dica. Modern Law Review, 68, 1, 121-134.

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