ESU-Essex Court Chambers National Mooting Competition

Second round problem, 2003-2004

R v Young; R v Davis
In The House of Lords

David Young tested positive for the Human Immunodeficiency Virus (HIV) in January 2000. At the time, he received counselling and was advised that he should inform future prospective sexual partners of his HIV-positive status, and that he should always use condoms during sexual intercourse. In September 2000, he formed a sexual relationship with Jane Brown. Miss Brown originally expressed a wish that they should use condoms for sexual intercourse, but was persuaded otherwise by Mr Young, who claimed to her that he had tested negative for HIV earlier that year, and suggested that they practice an alternative means of contraception. After Miss Brown obtained oral contraceptives from her doctor, Mr Young and Miss Brown practiced unprotected sexual intercourse for six months until the end of their relationship. They did not use condoms for sexual intercourse at any stage. Miss Brown subsequently tested positive for HIV. It was not disputed that Mr Young was the source of Miss Brown's infection. Mr Young was convicted on a charge of unlawfully and maliciously inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. He appealed to the Court of Appeal (Criminal Division), relying on the decision in R v Clarence (1888) 22 QBD 23. The Court of Appeal dismissed his appeal, holding that Clarence, insofar as relevant, had been impliedly overruled by the decision in R v Ireland; R v Burstow [1998] AC 147.

Michael Davis tested positive for HIV in August 2000, and received counselling along similar lines to Mr. Young. In November 2000, he commenced a sexual relationship with Deborah Smith. He objected to Miss Smith's suggestion that they use condoms for sexual intercourse, claiming that there was "no reason to worry" about the transmission of disease. They practiced unprotected sexual intercourse for six months until Miss Smith learned of Mr Davis' HIV-positive status from a mutual friend, whereupon she broke off the relationship. It was not disputed that she would not have consented to sexual intercourse had it not been for Mr Davis' misrepresentation. Miss Smith has, thus far, tested negative for HIV. Mr Davis was convicted on a charge of indecent assault. He appealed to the Court of Appeal (Criminal Division), also relying on the decision in Clarence. The Court of Appeal dismissed his appeal, holding that Mr Davis' misrepresentations should be regarded as a fraud as to the nature of the act, therefore invalidating Miss Smith's consent. In reaching this conclusion, the court relied in particular on the opinion of McLachlin J in the Canadian case of R v Cuerrier [1998] 2 SCR 371.

Both Mr Young and Mr Davis now appeal to the House of Lords. The appeals will be held together. The grounds of appeal are:

  1. That in Mr Young's case, the Court of Appeal had erred in holding that Clarence had been impliedly overruled by Ireland insofar as relevant. Mr Young had not "inflicted" any injury on Miss Brown within the meaning of section 20 of the 1861 Act.

  2. That in Mr Davis' case, the Court of Appeal had erred in holding that his misrepresentation constituted a fraud as to the nature of the act.



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