Neutral Citation Number: [2014] EWCA Crim 889

Case No: 201105243 C2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Northampton Crown Court
HHJ Fowler
T20100442
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/05/2014
Before:

LORD JUSTICE TREACY
MR JUSTICE BEAN
and
HIS HONOUR JUDGE LAKIN
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Between:

Regina
- and -
David Golding

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Simon Gladwell (who did not appear below) (instructed by Registrar of Criminal Appeals)
for the Appellant
Iain Wicks (who did not appear below) (instructed by Crown Prosecution Service
Headquarters) for the Respondent

Hearing date: 18th March 2014
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Approved Judgment


Judgment Approved by the court for handing down. R v Golding


Lord Justice Treacy:
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 18
th
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 9
th
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 7
th
October and 19
th
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 Crowns 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.
Judgment Approved by the court for handing down. R v Golding


(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 appellants 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 31
st
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 appellants 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 27
th
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 appellants 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 Kinghorns 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 appellants legal representative was at fault in
Judgment Approved by the court for handing down. R v Golding


failing to challenge the CPSs failure to follow its guidance, in failing to obtain its
own expert report dealing with HSV, and in failing to obtain the appellants 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 CSs
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 appellants 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 CSs
infection therefore, in the view of the medical experts, depended heavily on the
validity of CSs claim that she had had no other sexual partner during the relevant
period.
Judgment Approved by the court for handing down. R v Golding


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 appellants 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 Appellants 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
Judgment Approved by the court for handing down. R v Golding


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 appellants 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 18
th
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 Appellants 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 Crowns evidence as served pre-trial was capable of showing that the
appellant had infected CS, and that herpes was capable of amounting to grievous
Judgment Approved by the court for handing down. R v Golding


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 prosecutions 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 appellants own medical records were concerned, he had been in touch
with the appellants general practitioner and understood that he had the appellants
full medical records. However, he acknowledged that he did not have the Genito-
urinary Clinics records. He had only been given limited disclosure about CSs
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 appellants instructions was
that on 5
th
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 (18
th
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
Judgment Approved by the court for handing down. R v Golding


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 appellants 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 appellants. 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 appellants 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 18
th
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.
Judgment Approved by the court for handing down. R v Golding


CPS Guidance
49. The CPS guidance in force at the time (subsequently updated) requires the DPPs
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 suspects 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 Crowns failure prior to plea to exclude the possibility of another person being the
cause of CSs 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 appellants 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
Judgment Approved by the court for handing down. R v Golding


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 courts 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. CSs 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 CSs 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 CSs outbreak of herpes coincided with
Judgment Approved by the court for handing down. R v Golding


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 CSs 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
CSs 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 CSs
outbreak with the start of her relationship with the appellant, her absence of previous
history and the appellants 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 appellants 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
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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 18
th
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 appellants case. If Mr Everett had obtained the
appellants 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 Crowns 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 18
th
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 18
th
July is plainly important. We have earlier
rejected the appellants 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 appellants position, and the potential
sentence available to the judge. The judges 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
Judgment Approved by the court for handing down. R v Golding


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 appellants 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 Crowns 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 CSs 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 CSs 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.
Judgment Approved by the court for handing down. R v Golding


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 victims 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 18
th
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 appellants 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
appellants 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.
Judgment Approved by the court for handing down. R v Golding


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 appellants 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: CSs 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 18
th
July 2011; sentence was passed on 9
th
August
2011; the appellant was granted unopposed bail pending appeal on 27
th
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 appellants 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.
Judgment Approved by the court for handing down. R v Golding


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 appellants 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.