Felicity Gerry QC leading in HIV Appeal.  Felicity sought to leave to appeal both conviction and sentence on behalf of Daryll Rowe.  Mr Rowe was convicted after trial in October 2017 on 10 counts of

intentionally inflicting or attempting to inflict GBH contrary to section 18 of the OAPA 1861 / the Criminal Attempts Act by transmission of HIV. He was sentenced in February 2018 to life imprisonment with a minimum term of 12 years. Applications for leave to appeal conviction and sentence were referred to the full Court of Appeal (Criminal Division). The applications were submitted on a number of grounds which can be summarized as follows:


a.     That the submission of no case to answer should have succeed given that the evidence of causation and intention was fragile including limited control over the virus and direct evidence of low risk of infection, lack of repetitive conduct and use of                    alternative remedies
b.     That the directions to the jury were inadequate and formulaic and this was one of those rare cases where the jury should have been given a more detailed direction on intention and, in particular, should have been directed that foresight of a probability          or a possibility is not sufficient for intention thus differentiating clearly between intention and recklessness.
c.     That the jury should have been warned against prohibited reasoning from any moral culpability given that there is no legal duty to inform of HIV status and no legal duty to refrain from casual sexual encounters.
d.     That both liability for the consequences of lawful conduct and whether HIV is no longer really serious harm (but a treatable illness) were issues worthy of consideration.
e.     That the life sentence was manifestly excessive and added to the stigma surrounding HIV.

Reliance was by Felicity on the Global Commission on HIV and the law and other international publications including a recent expert consensus on phylogenetic science which are worth a read.
All applications were refused on Thursday 1st November 2018.
Felicity led Robert Ellison of 5 KBW and was instructed by Daniel Godden of Berkley Square Solicitors.
 

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Date: 09/11/2018