IN THE SUPREME COURT

B E T W E E N:
JONES
APPELLANT
and
RESPONDENT
SMITH
Heard on Wednesday 14 January 2015
Submitted by counsel for the appellant
SKELETON ARGUMENT OF THE LEAD COUNSEL
GROUND 1
Ground of response: The ambit of section 20 should not have been extended to include
transmission of HIV in this type of situation and, in any case, recklessness does not include
awareness by the defendant that he might be infected with HIV, but does not know for sure
Lead Counsel respectfully submits:
1
2
3
4

the judiciary should not overstep their constitutional and institutional competences by
extending the law to such an extent which renders the law uncertain.
the extension of the law to drug syringe cases is unprincipled as the public policy
considerations of the need to uphold sexual autonomy underlying the defence of informed
consent in Dica and Konzani do not apply.
In the interest of public health as a matter of public policy, the criminal law should not be
used to reduce HIV transmission in drug syringe cases
the correct mens rea applicable to a s20 OAPA 1861 in the context of HIV transmission is
that the defendant must know he is HIV positive to be reckless.
SKELETON ARGUMENT OF THE JUNIOR COUNSEL

GROUND 2
Ground of response: Smith's self-injection of the syringe was a free, deliberate and informed
act, Kennedy (No 2) distinguished. In particular, “irresistible impulses” arising from drug addiction
should preclude the defendant’s causal responsibility of sharing the infected needle as a matter
of public policy and, in any case, Smith was well aware of the risk of transmission of HIV
associated with sharing needle.
Junior Counsel respectfully submits:
1
2
3
4

Smith’s self-injection was free and deliberate because his addiction did not impair his
ability to choose an appropriate instrument to inject the heroin with.
Smith’s self-injection was informed because he had knowledge of all the circumstances.
The irresistible impulse of the respondent breaks the chain of causation, thereby absolving
the appellant’s criminal responsibility in the interest of promoting public health.
Informed consent was given by Smith as he was well aware of the risk of transmission of
HIV associated with sharing needles.

In contending for the grounds of appeal, counsel submits the following authorities
C v DPP [1996] AC 1
Offences Against the Person Act 1861
R v Brown [1994] 1 AC 212, [1993] 2 WLR 566
R v Dica [2004] EWCA Crim 1103, [2004] QB 1257
R v Kennedy (No 2) [2007] UKHL 38, [2008] 1 AC 269
R v Konzani [2005] EWCA Crim 706, [2005] 2 Cr App R 14
R. (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, [2014] 3 WLR 200
R v Savage [1992] 1 AC 699, [1991] 3 WLR 914
The following additional materials are also cited
Joint United Nations Programme on HIV/AIDS (UNAIDS) Criminal Law, Public Health and HIV
Transmission: A Policy Options Paper (2002)
Matthew Weait, ‘Criminal Law and the Transmission of HIV: R v Dica (2005) 68(1) MLR 121-134
Matthew Weait, Unsafe law: rights, health and the legal response to HIV (2013) 9(4) Int JLC 535564
Samantha Ryan, ‘Reckless Transmission of HIV: knowledge and culpability’ (2006) Crim LR 981992
The appellants submit that the appeal be respectfully allowed
Lead Counsel: x
Junior Counsel: x
13 January 2015