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R v B [2006]

A defendant’s failure to disclose his status as HIV positive did not affect the issue of consent in relation to a charge of rape and should have been excluded from a jury as unfairly prejudicial under s 78 of the Police and Criminal Evidence Act 1984.

27 October 2006

The appellant (B) appealed against a conviction for rape. The victim (V) and B had sexual intercourse on the floor in a recess area of a street following their meeting outside a nightclub in the early hours of the morning. Two delivery drivers saw B and V on the floor together and asked V if she was in need of any help. V ran into the arms of one of the drivers and made a complaint of rape. B was arrested and informed the custody officer that he was HIV positive. He had not disclosed this to V prior to their having intercourse. At trial, the issue for the jury was consent. B submitted that the judge was wrong in: (1) allowing the prosecution to adduce evidence that he was HIV positive at the time of the offence and that it ought to have been excluded as unfairly prejudicial under s 78 of the Police and Criminal Evidence Act 1984; (2) directing the jury that his HIV status was relevant to whether V had the freedom or capacity to consent to sexual intercourse in the absence of that kn...

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