Criminal law protects society from intentional, negligent or reckless behaviour that put people and economic interests either at risk of harm or actual harm. Through referencing and adapting segments of existing English law, using cases that now act as precedent and by creating new legal definitions that specifically relate to disease[1], this essay will argue that one should be held criminally liable for infecting another person with a disease when under the Offences Against the Person Act 1861 they are acting ‘maliciously’ and when their actions are considered a public nuisance.
Firstly, the Offences Against the Person Act 1861, s. 20.[2] states that a person should be held criminally liable if they ‘unlawfully and maliciously wound or inflict Grievous Bodily harm upon any other person with or without any Weapon or Instrument’[3]. Lord Justice Bowen defines the word malicious as ‘when one does an act which he knows will injure either the person or property of another’. As such, one should be held criminally liable for the infection of another person under the Act, should they act in a ‘malicious way’ that leads to GBH. Drawing on points made by Lord Justice Bowen, in the context of disease, a person should be characterised as ‘malicious’ and charged for GBH if they: ‘firstly, have knowledge or ought to have knowledge of the disease alongside its infectiousness, and secondly, if they foresee the harm the disease could cause another person.’
Addressing the former part of my definition, if the subject is aware that they are infected with an infectious disease, and proceeds to do an act that results in transmission, they should be charged for acting maliciously and so criminally prosecuted for GBH. A similar logic can be seen in Konzani [2005] EWCA Crim 707. Konzani was HIV positive and aware of his condition. He had unprotected sexual intercourse with three complainants without informing them of his condition. Consequently, the three complainants contracted HIV. As such, he was convicted for acting with malice as the concealment was incongruent with honesty.
However, what has not been explored is the question of suspected infection. This is particularly important for diseases that can be mistakenly diagnosed, for example Covid-19 and the flu. In accordance to the definition of what should constitute as acting with ‘malice’ in the context of disease, it should only be reasonable to assume someone of having knowledge and so acting with ‘malice’ if their symptoms leave no room for any other diagnosis. If there is uncertainty, such as during the period between taking a Covid-19 test and receiving lab results, it is unreasonable to assume that a person should be charged under the Act if something occurs. This is because of the fact that the subject would not have ‘adequate’ knowledge, and hence, under the definition established could not act maliciously nor be incongruent with honesty, additionally such a decision follows the doctrine of precedent established in (Konzani [2005]) that specifically refers to intent and malice, the subject could not have intent and thus, act with malice as they’d be unaware of their disease. As such, in that circumstance, it is not the subject that is at fault should unknowing transmission occur as they completely lacked in knowledge of the disease and the harm it could cause. Had the subject been told to isolate during the ‘period of uncertainty’ and does not follow the guidelines is a different question that will be addressed later on.
In reference to the second part of my definition of foreseeing harm. The action of foreseeing harm should be defined as ‘when the subject would be aware of all possible implications of another person contracting the disease’. If the subject were to foresee the harm that could be caused by the disease, and go on to take the risk of it, they should be charged with acting with malice and hence GBH. This was seen in Cunningham [1957] 2 QB 396, where the removal of a gas meter caused gas to leak into a woman’s property, this led to her being poisoned by the gas and killed, in which it was clear that the subject was aware that exposure to such high volumes of gas would cause death. Moreover, if the subject only saw some harm, in the case of diseases only a cough, and not death due to lung failure they should still be held with acting maliciously, as the subject still foresaw the harm it could cause, yet still acted in a way that resulted in its transmission.
To summarise my first point, through using the Act and previous cases, I have created a new legal definition that specifically relates to that of disease. As established in the Act, if the subject is aware of their condition and does acts that result in transmission, they should be prosecuted[4]. During a ‘period of uncertainty’ only a person whose symptoms leave no other diagnosis should be prosecuted should they unknowingly transmit their disease. Finally, if the subject foresaw the most minute implications another person could face due to the disease and still commits acts that put the health of other people in danger, they should face criminal prosecution.
Secondly, a person should be criminally liable for the infection of another person with a disease if their actions are considered to be a public nuisance. According to precedent established in Goldstein [2004] 2 All ER 589 at [3][5], a public nuisance is ‘an act not warranted by law which endangers the life, health, property or comfort of the public’. Hence, one should be held criminally liable for infecting another person with a disease if their actions constitute as being a public nuisance. In the context of disease, acting as a public nuisance should be one in which: ‘the disease is infectious, dangerous and causes significant harm and one where the subject is aware that their conduct constitutes as a nuisance.’
Primarily, exposing the public to the risk of disease is a public nuisance. If the subject proceeds to commit and act that endangers the life, health and property of the public, they should be prosecuted and held criminally liable. This has already been established, although, the question of which disease can ground a public nuisance arises. Through rulings seen in Henson (1852) Dears 24, a disease that warrants criminal liability was one that was ‘contagious, infectious, and dangerous’, this was additionally established in Vantandillo (1815) 4 M & S 73. Using the precedent established, a threshold for the level of contagiousness, infectiousness and dangerousness should be created with the consultation of professionals, that would define diseases that are dangerous enough to be considered a public nuisance. As such, if a person were to breech isolation that they were told to incur with a disease that falls into the threshold, such as Ebola, they should be held as a criminal public nuisance.
Additionally, where the subject is aware that their conduct constitutes as a nuisance, such as going out even if they were told to isolate, as a result of the risk of disease transmission created, they should be held criminally liable. On the other hand, similar to the example in my first point, should the subject only be suspected is important to consider. If the subject is only suspected to have a disease that falls within the threshold, and proceeds to avoid their isolation and go out, they should be charged as acting as a criminal public nuisance. This is due to two main reasons: regardless of infection the subject is aware that their conduct is a nuisance, as they are going against restrictions, and whilst there is a substantial difference between creating a risk of infection and risking creating a risk of infection, in both circumstances the subject would still be endangering the life, health and property of the public.
In summary of my second point. If the person does an act that endangers the safety of the public, they should be criminally liable for acting as a public nuisance. However, a defined list must be created with the aid of medical professionals that details which diseases are dangerous, infectious and contagious enough to constitute acting as a public nuisance should the person go against an act warranted by law (isolation). It must be clarified that such a list must be created in the interests of public health and human rights, rather than ostracising a particular group. As well as this, the level of harm incurred must also be taken into account when assuming the level of liability one should be held accountable for, similar to that produced under the Theft Act 1968. If the subject is aware that their act constitutes as a public nuisance or a ‘grey area’, and still proceeds to do such an act, they should be held criminally liable, regardless of whether infection is only suspected or confirmed.
In overall conclusion, one should be held criminally liable for infecting another person with a disease if they act in a malicious manner in which they, had knowledge or ought to have knowledge of the disease alongside its infectiousness, and secondly, if they foresee the harm the disease could cause another person. If the subject is aware of both of these and commits an act, they should be criminally charged for GBH. Moreover, one should also be held criminally liable if they act as a public nuisance that goes against procedures put in place to reduce the spread of the illness. If the subject is aware that their actions endanger the life, health, property or comfort of the public or their disease falls into a threshold, they should be held criminally liable.
References:
10. https://www.sentencingcouncil.org.uk/wp-content/uploads/Theft-offences-definitive-guideline-Web.pdf
[1] Legal definitions created will be written in Italics. [2] I will refer to this as ‘the Act’. [3] The Offences Against the Person Act 1861, s. 20. states that ‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily Harm upon any other Person, either with or without any Weapon or Instrument, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable’. [4] Konzani [2005] EWCA Crim 707 [5] Goldstein sent some salt and a cheque in repayment of a debt to a friend; he intended the inclusion of salt to be a joke but a post worker mistook it for anthrax. He was indicted for public nuisance.