Golding, R v [2014] EWCA Crim 889

Case No 201105243 C2[2014] EWCA Crim 889
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Northampton Crown Court
HHJ Fowler
T20100442
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2014
Before
LORD JUSTICE TREACYMR JUSTICE BEANHIS HONOUR JUDGE LAKIN
Between
ReginaCrownDavid GoldingDefendant
Simon Gladwell (who did not appear below)(instructed by Registrar of Criminal Appeals) for AppellantIain Wicks (who did not appear below)(instructed by Crown Prosecution Service Headquarters) for RespondentHearing Hearing date: 18th March 2014
Judgment

Introduction

[1]This is an application 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.[2]On 18th July 2011 in the Crown Court at Northampton the appellant pleaded guilty on 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.[3]The essential facts show that this appellant, a man of previous good character, met the complainant, CS, in July 2009. The 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.[4]On being diagnosed CS confronted the appellant. He initially denied 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.[5]When interviewed by the police, the appellant admitted that he had given the complainant herpes, and that he should have told her about his condition. He said he was deeply ashamed.[6]The Crown’s case was that the appellant 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.[7]At the time of pleading guilty the appellant put forward a basis of plea in these terms:
“(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 virus which once caught never leaves the carrier, and can be transmitted from the carrier to others by a number of means including sexual intercourse. (3) I did not tell [CS] that I had been diagnosed with herpes. I did not tell her because I really wanted our relationship to continue and was frightened that she would not have continued with that relationship. (4) I accept that we had sexual intercourse during our relationship and as a result she caught herpes from me. (5) I did not intend her to catch the virus from me but I accept that I behaved recklessly and as a result have assaulted her occasioning her actual bodily harm.”
[8]Those final words are not apposite to a guilty plea to a Section 20 offence. The appellant had initially hoped to plead guilty to a Section 47 offence and a document in the terms 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.[9]The history of the matter shows that on 31st August 2011, some twenty two days after sentence, the Crown commissioned a 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.[10]As a 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.[11]The matter has been further investigated over a lengthy period of time by two well qualified 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.[12]However, on that occasion the court was able to dispense with the attendance of Dr Mutton and Professor Kinghorn by exercising its powers pursuant to Section 23(1)(b) of the Criminal Appeal Act 1968 to order Professor Kinghorn to be examined before the court. That enabled him to be examined by the appellant’s counsel, and cross-examined by counsel for the Crown, and a transcript prepared. It was not necessary for a similar procedure to be adopted with Dr Mutton.[13]On behalf of the appellant an application has been made to call fresh evidence in the form of Professor Kinghorn’s 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.[14]There are a number of grounds of appeal against conviction. Briefly put,(1) the Crown failed to follow CPS Guidelines on Intentional or 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

[15]Given the degree of interrelationship between these grounds, it seemed appropriate to us to 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

[16]After the initial 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.[17]The incubation period for herpes is short. Usually from exposure to development of infection takes 48 to 72 hours. Most infections have occurred within five days of contact, but this can be as long as twenty days. HSV-2 is normally acquired through sexual intercourse; there is no realistic chance of it being acquired merely by kissing.[18]As far as the appellant was concerned, there was definitive evidence, including laboratory testing, to show that he was treated for a 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.[19]CS had, by implication in her initial witness statements, made clear that she had had no sexual partner other than the appellant at the 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.[20]As to the impact of herpes, the evidence was that whilst it was not a life threatening condition, it is incurable. The initial infection is described as an unpleasant and painful acute illness with debilitating effects. On occasion admission to hospital may be 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.[21]On the issue of 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.[22]The available medical notes were not specific as to advice provided to the appellant. According to Dr Mutton, he would have expected a full discussion to have taken place in April 2008 at the Genito-urinary Clinic following the guideline of the British Association for Sexual Health and HIV. This 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.[23]Professor Kinghorn, in the absence of particular evidence as to the advice given to the appellant, thought that it was less likely that the appellant would have been told that he was infectious when no lesions were present. However, he conceded that since the turn of the century, the state of medical knowledge in this 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

[24]The appellant at first asserted that when he attended a Genito-urinary Clinic in April 2008 he was only told that he might have herpes and he was only given general advice. He maintained that by the time of his 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.[25]He denied telling CS after she became infected that he had herpes. He said that he had told her he was suspected of having herpes. However, he went on to acknowledge in cross-examination that in interview with the police he had said that he had told CS that he had herpes, and had acknowledged to the police that he had failed to tell her about that. He agreed that in interview he had expressed regret for this.[26]He was asked about a note (CMES/1) which he had written to CS at a time before she went to the police in which he acknowledged giving CS herpes, acknowledged having lied to her, and acknowledged having tried to make her believe she had caught herpes from a former boyfriend. He explained this by saying he was merely keeping the peace in writing that note and saying what CS wanted to hear. At this point in his evidence he was still maintaining that he did not believe prior to his relationship with CS that he had herpes, and that he was ignorant of the fact that he had been diagnosed in April 2008.[27]Moving on to the question of his guilty plea, the appellant’s evidence was in conflict with that of his then solicitor, Mr Everett. He denied telling Mr Everett that he had been aware at the 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.[28]This last comment arose from the fact that when a Goodyear indication had been sought on the day of trial (which the judge declined to give), the judge had made clear that he thought that a plea to Section 20 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.[29]The basis of plea document and a document in similar terms seeking the Goodyear indication had not been discussed with him. They had merely been put in front of him and he had signed them. In short, he asserted that his plea was not a true one. It was not informed by appropriate advice from the solicitor; and he had not been given necessary assistance.[30]Finally, as to CS and the question of infection, the appellant 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

[31]CS gave clear evidence that there was no sexual activity with any other man in the period between April and September 2009. While on holiday with a friend in July 2009 she had kissed a man. It was a “brief snog”. No sexual activity took place. Her 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.[32]She said that after she had been diagnosed the appellant initially denied having herpes, but some weeks later admitted that he had, saying that he knew he had caught it from a previous partner.

The Appellant’s Trial Advocate

[33]Mr Everett acknowledged that he was unaware of the CPS guidance until after sentence. He had not obtained his own expert 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.[34]He had discussed the prosecution’s evidence with the appellant, who had not positively instructed him to obtain his own expert. Mr Everett accepted that in hindsight it would have been better to have obtained a report.[35]As far as the appellant’s own medical 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.[36]Mr Everett said that the defence case as advanced in the defence statement was that there was no evidence to show that the appellant had inflicted the 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.[37]There had in the months prior to the trial been discussion about whether a plea of guilty to Section 47 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.[38]According to Mr Everett, on the morning of the day fixed for trial (18th July 2011) he went to court by mistake, the case not being listed until the afternoon. He saw prosecuting counsel who said that a plea to Section 47 would still be acceptable to the Crown. Mr Everett telephoned the appellant, who told him that he was aware that his herpes had never gone away. This represented a change of position by the appellant, and Mr Everett considered that it put his case in difficulties.[39]The appellant was given advice about a plea on the basis of 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.[40]The parties met at court that afternoon. The question of seeking a Goodyear indication was confirmed, and the parties went before the judge, who declined to give a Goodyear indication. The judge made clear in the discussion which took place that he did not consider that a plea to Section 47 was appropriate. He considered that Section 20 was the correct charge. Whilst the judge was firm in that view, he repeatedly made clear that it was a matter for the appellant as to whether he contested the case or not.[41]The judge had other work in his list and so there was considerable time available that afternoon for further 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.[42]The appellant had an opportunity to speak to his parents, taking a copy of the basis of plea document. He then 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.[43]During the course of the discussions that afternoon, possible sentences were discussed. The judge had mentioned custody earlier that afternoon, and the possibility of a suspended sentence was mentioned between the appellant and Mr Everett, although Mr Everett made clear there was no guarantee of that. Credit for a plea of guilty was also discussed. The appellant was upset, but he was not confused. He knew what he was facing. The choice of plea was the appellant’s. Mr Everett said that he had made clear that he was prepared to contest the case, but that the appellant should realise the difficulties that lay ahead.

Our Assessment of the Fresh Evidence

[44]We 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.[45]We did not find the evidence of the appellant impressive or credible. In our judgment, he was seeking to minimise every piece of evidence against him, and to put a construction on events at its most favourable to him. His evidence was neither accurate nor truthful on key issues such as his dealings with CS and what occurred on the day when he pleaded guilty. His evidence was at odds with other objective evidence. Where his evidence conflicted with that of CS and Mr Everett, we have no difficulty in accepting their accounts rather than his.[46]As to CS, we found her to be a truthful witness. We fully accept that she did not have a sexual 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.[47]We found Mr Everett to be an honest and careful witness who gave an accurate account of his dealings with this appellant, both prior to and on 18th July 2011. We have no hesitation in accepting his account of the events of that day and rejecting that given by the appellant.[48]Having made those determinations, we move onto consider the grounds of appeal.

CPS Guidance

[49]The CPS guidance in force at the time (subsequently updated) 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.[50]Secondly, the guidance states:
“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 recklessly and actually transmitted the infection to the complainant. The mere fact that the suspect says that he did or she did and that he did or she did so recklessly is not sufficient, on its own, to meet the evidential stage of the Code test. There has to be other factual evidence to demonstrate that the suspect’s account is at least compatible with the other evidence available.”
[51]The Code speaks of the need for sufficient evidence to the 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.[52]In addition to 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.[53]The submission made was that the cumulative effect of those asserted failures was that the appellant did not make an informed decision as to his plea by 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.[54]Mr Gladwell was clearly 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.[55]Leaving aside the non-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

[56]It is convenient at this point to summarise the evidence which was available at the point at which a guilty plea was tendered. From CS there were five witness statements and also the note (exhibit CMES/1). These showed that after CS was diagnosed she confronted the appellant, who denied having had herpes and suggested CS might have caught it from a previous partner. A few weeks later the appellant admitted giving her herpes, saying that he had caught it from a previous partner. CS also suggested that the appellant had said he had given it to her so that nobody else would want her. After that the appellant had written the note referred to earlier.[57]CS made clear that if she had known the appellant had herpes, she would not have had intercourse with him. She described her symptoms as initially soreness and pain on urination, but with the symptoms worsening and 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.[58]CS’s general practitioner, Dr Maxwell, described how the initial outbreak persisted into October, and was followed with a 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.[59]Dr Mohanty, a consultant physician with expertise in sexually transmitted diseases over many years, confirmed that genital herpes is incurable and often 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”.[60]The note CMES/1, written by the appellant, contains admissions by the appellant to hiding his condition, infecting CS, and then blaming some ex-partner of hers.[61]When interviewed under caution the appellant admitted that he had kept his infection with herpes from CS, (“it was a stupid silly mistake of mine”). He had been scared to tell her and was ashamed of keeping it from her. He accepted that he should have informed CS, and admitted giving her herpes. He admitted writing the note CMES/1.[62]Whilst that evidence may be said to fall short of the standard of evidence contemplated in the CPS guidance, in our judgment it sufficed to 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.[63]In this context we leave out of account CS’s evidence as to the anguish she suffered as a 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.[64]The phrase “grievous bodily harm” means 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.[65]As to the question of inflicting the harm, we consider that there was sufficient evidence. At this stage an inference could be drawn from the coincidence of CS’s outbreak with the start of her 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.[66]On the issue of 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.[67]As 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.[68]It may be that the state of the evidence left 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

[69]The alleged shortcomings of the solicitor prior to 18th July 2011 have to be seen in that context. His failure to appreciate that the CPS had not followed its guidance in producing more 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.[70]In the circumstances we are not persuaded that the appellant was failed by Mr Everett in the preparation of his case prior to 18th July 2011 in such a way as to call into question the safety of his conviction.

An Effective Guilty Plea?

[71]Turning then to what has been identified as a core issue in the case, namely whether the plea tendered to Section 20 was sufficiently informed and 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.[72]Mr Everett undoubtedly formed a 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.[73]The appellant himself acknowledged that a factor in his decision was that he hoped to get a suspended sentence if he did not contest the matter. He was also aware that the second count involving a physical assault would not be proceeded with were a plea to be tendered. Whilst suggesting that he had been left with no 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.[74]In those circumstances, there being evidence sufficient to ground a case under Section 20 against this appellant, we are satisfied that his guilty plea was properly informed and that it was 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

[75]We next consider whether anything in the fresh evidence adduced could undermine the safety of the conviction, for example by tending to show that one of the constituent elements of the offence to which the appellant pleaded guilty could no longer be sustained.

Inflicting

[76]The fresh evidence has 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

[77]The assessment of that is for a jury to evaluate 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.

Recklessness

[78]We note that in a pre-sentence 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 victim. However, he strenuously denied the victim’s accusation that he had transmitted the disease in a bid to ensure that she would not attract other partners. He maintained that he had been in fear of the relationship ending at the time and recognised that his behaviour was unacceptable.”
[79]That is, of course, consistent with paragraphs 2, 3 and 5 of the basis of plea, which we have found that the appellant voluntarily put before the court.[80]We also note that the pre-sentence 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.[81]When the matter came back before the court for sentence about three weeks after the plea had been entered, the appellant continued to be 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.[82]Whilst there was a difference of 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.[83]We conclude that there is nothing in the fresh evidence which would undermine the admission of 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

[84]Accordingly, there is nothing in the fresh evidence which calls into question the safety of the admissions made by the appellant through his plea. Overall, the safety of his plea is confirmed.[85]For these reasons none of the grounds of appeal put forward can succeed. Accordingly, this appeal against conviction is dismissed.

Sentence

[86]The appellant appeals against his sentence. His grounds are that the sentence of 14 months imprisonment was too long: firstly, because it does not take into account the nature and extent of the injury suffered by CS, and secondly, because it is said insufficient credit was given for the appellant’s guilty plea. As to the latter point, since the guilty plea was only tendered on the day fixed for trial, the appellant having disputed his guilt up to that point, credit of only 10% is due.[87]We do not find anything in the fresh evidence which materially alters the harm done to CS. The fact is that she has suffered more than one outbreak of herpes and has to live with the knowledge that it is a lifelong condition prone to 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.[88]Even allowing for the fact that some credit is due for a guilty plea, that the appellant was of previous good character, and that he had recklessly rather than deliberately infected his victim, we are not persuaded that any proper criticism can be levelled at the sentence imposed.[89]Had matters come before this court promptly we would not therefore have entertained an appeal against sentence. However, that is not the situation. The chronology is as follows: CS’s initial outbreak was in September 2009; the appellant was charged in October 2010; he made his first Crown Court appearance in about September 2010; the guilty plea was entered on 18th July 2011; sentence was passed on 9th August 2011; the appellant was granted unopposed bail pending appeal on 27th September 2011.[90]The appellant has thus served the equivalent of a sentence of about 14 weeks in custody. He is now 31 years old and as stated was of previous good character. As a 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.[91]The 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.[92]Over that period the appellant has been on bail subject to conditions which include 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.[93]It is well 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.[94]In substitution for the term of 14 months we impose a term of 3 months imprisonment, a sentence which this appellant has already served. To that extent this appeal against sentence is allowed.

Cited in 1 later judgment