Charlotte – Year 12 Student
Editor’s note: Year 12 student Charlotte writes here in response to the law question set for the New College of the Humanities essay competition, 2021. Set against the backdrop of the ongoing coronavirus pandemic and the often contested social restrictions put in place – for example, ‘Stay Home. Protect the NHS. Save Lives.’ – the challenging question asks: when, if ever, should one be criminally liable for infecting another person with a disease? CPD
This question is a frequent point of discussion for many, especially in relation to the current climate we find ourselves in, but consequently poses serious issues surrounding enforcement and regulation. It is often hard to distinguish between fine discrepancies, in relation to whether the individual was blissfully unaware, or actively concealing knowledge of their disease. We must also have evidence to prove whether there was intent involved or if the transmission was a subconscious mistake. An in depth analysis must be undertaken to deduce if the infection significantly affected the other individual in question, or if it happened to be a mild, recoverable form of the disease. It is necessary to discover whether there is a cure for the disease, or if the victim will remain scarred, for life, from these actions. This difficulty in proving and presenting credible levels of evidence to reach a punishable threshold, raises many concerns and I believe the best option may be to turn this policy into a case on case basis punishment style, weighted, dependent on the severity of these factors.
One significant element of this debated question, which I personally believe would warrant a criminal conviction, is in relation to a circumstance where an individual is found to have an incurable form of a disease because of this reckless conduct. A prime example of this case being the process of infecting an individual with an STD, such as HIV. This exact event happened back in 2017 when, Darryl Rowe, a hairdresser, originally from Edinburgh, faced charges of four counts of causing grievous bodily harm with intent and six counts of attempted GBH in relation to 10 other male individuals. These charges were laid following one of the victims HIV positive tests back in March of 2016, which caused alternative leads of the investigation to be further explored. Darryl, irrespective of denying his knowledge of positive diagnosis by medical professionals, actively sought to infect multiple other individuals, even though it was proven he had a fully-fledged understanding of the long-term consequences his actions would have. This intent calls for criminal liability on his part, as there was purpose behind his conduct and the cure for this disease is proving largely elusive. His reckless manner has caused not only the victim in question, but also many others who the charges relate to, to suffer endlessly, with the daily struggle of this disease.
Secondly, a similar issue arises surrounding the current, global pandemic of Coronavirus, where if an individual fails to self-isolate in line with government guidelines following a contact or positive test for the virus, they risk spreading the disease further, irrespective of the issues raised1 surrounding our civil liberties. This horrible virus, which is becoming increasingly transmissible, but also increasingly deadly, especially surrounding the new UK variant, could have potentially life threatening consequences for any individual who contracts it. Irrespective of a death rate 10x higher for over 80’s, the virus can also cause someone who has no prior health conditions and who is fit and healthy, to take ill. Therefore, if in the event an individual has a severe reaction as a response to this contact, I believe an individual should be criminally liable. Just as my point of view is reflected, in Australia, where Greg Hunt, the Health Minister, warned that transmission could be punishable by a lifetime in prison. This was supported by the move of New South Wales, which introduced a 5000-dollar fine on the spot, if an individual was found to have spat or coughed on a frontline health worker. However, in relation to pin pointing the area and event in which the transmission occurred, it becomes extremely difficult in many circumstances to locate the origin and therefore the individual who spread it, so enforcement of this rule would prove difficult to regulate.
In contrast to a point I previously alluded to, I also believe that in certain circumstances an individual should not be held fully accountable for the transmission of the disease, if there is no evidence of prior knowledge of having it. In relation to Covid19, it can be largely asymptomatic at first, for many have the virus without even knowing until it is potentially too late. Therefore, it would not be ethically correct to punish someone who has no prior knowledge of his or her infection and had continued to proceed in a normal manner and, as a consequence, infected another individual. This absence of knowledge would be easier to prove by discovering whether they had produced a positive test or if the individual had certain visual symptoms that fell in line with the symptomatic list. We must also note that as a matter of law, it is merely not a case of proving deliberate (rather than accidental) conduct, which creates criminal liability, but also an individual’s state of mind and whether it is in the public interest to prosecute. Therefore, this plays just as significant of a role as the actual conduct that caused the situation.
Individuals in jail are also subject to the spreading infectious diseases on a daily basis, not only due to a lack of personal space and standard level of cleanliness, but also due to the sharing of equipment used for tattoos and drug injections. Within prisons, for obvious reasons, to restrict the sense of complete normality for those incarcerated, the resources provided are largely rationed. This limited access to soap, clean water and laundry, leads to an increase exposure to harmful pathogens that often pass on more readily in overcrowded environments where there is also a delayed access to medical facilities. It is extremely difficult to ration the use of injections and illegal activity when dealing with someone who may be irrational and dangerous and if provided with better resources, they may be more inclined to engage in acts of theft and bribery. However, the absence of these correct services and methods, means individuals form cults to share belongings with individuals whom they trust, irrespective of health conditions, allowing diseases to spread extremely easily without acknowledgement or precaution. In this case, I do not believe an individual should be criminally liable for spreading diseases, as in a harsh monotonous atmosphere of a prison, not only is illegal activity encouraged by prisoners, but it is seen as a rare opportunity for enjoyment. Alongside this, inmates have little access to the correct space or resources a normal individual would need to take the precautionary measures required to limit the spread of harmful diseases. We must also once again consider the mental state of those involved, as lengthy prison sentences often have adverse effects on one’s mental health and if the individual is already incarcerated, there are sanctions to use as a result of deducing the person criminally liable, other than increasing the term of imprisonment.
We must also account for those individuals who, for economic reasons, are unable to stop working, irrespective of having a disease such as Covid19 or feeling rather under the weather. This might be due to a lack of responsiveness by the employers, an absence of sick days or an incapability to function daily without a full and frequent income stream. Individuals may have young children or large families to provide for and an absence from work is simply not a feasible option. Although because of this decision, an individual risks infecting more and more people, a personal balance of pros and cons led them to this path and therefore we may wish to show them more consideration.
There is also another element to be considered, in the form of secondary levels of infection, concerning food production and sales. A prime example of this being under the Public Health Act of 1936, in which Mary Mallon, an Irish born individual who had moved to the USA, proceeded to work in the food industry, irrespective of her knowledge of her typhoid positive status. This caused the deaths of 3 locals due to the contraction of the disease and irrespective of there being no initial infection, as a result of consumption of her products, these people were found to have typhoid. Consequently, local authorities were made aware of her actions, and therefore, proceeded to arrest her and she was imprisoned following her refusal to isolate as instructed. There is also a similar case in which a Scottish butcher sold meat infected with salmonella and consequently killed several people, consequently he was charged with manslaughter, as officials deemed he had failed to meet the duty of care in following proper food hygiene rules.
In addition, we must acknowledge scenarios in which one could be deemed irresponsible, but not be made criminally liable. For example if I attended a public venue such as the cinema with a heavy cough or cold, my actions would be classified largely anti-social and careless, as not only would my illness cause disruption to others, but I could pass on my cold to someone else. This scenario would most likely not result in death or permanent damage and due to its mild nature; I believe this event could not be justified as punishable by law.
Overall, I believe every case is entirely different and the degree of certainty in relation to one’s intent or prior knowledge and ability to prove these claims, varies massively. However, I do strongly believe that if their conduct results in someone’s health being endangered in terms of life altering circumstances or results in a loss of life then an individual should be held to account and charged for reckless acts of misconduct, potentially leading to manslaughter and GBH charges.
1 The current government lockdown, is argued to go largely against the Human Rights Act of 2000, in which we were declared the right to freedom, in moderation with the law, to live our lives in the manner we wish to do so.
References
https://www.bmj.com/content/369/bmj.m1327
https://www.google.co.uk/amp/s/
www.dailyrecord.co.uk/news/scottish-news/hiv-hairdresser-faces-new-gbh-11332484.amp
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