R v Adaye (2004) unreported
Should the reckless and/or intentional transmission of HIV be deemed a criminal offence, and if so, which offence.
Facts
The defendant had been warned by a doctor in Africa who had been treating him for sexually transmitted infections generally that he was at high risk of having already contracted HIV and thus ought take a medical test to determine whether he was HIV positive. The defendant failed to do so and proceeded to recklessly engage in sexual intercourse with another, resultantly giving them HIV.
Issues
Can a person be charged with having recklessly transmitted HIV to another where they did not have actual knowledge of their HIV positive status, but rather ‘second degree’ knowledge or wilful blindness as to the matter.
Decision/Outcome
The defendant pleaded guilty to all charges brought against him and the Court found that one did not require actual knowledge, but rather it sufficed that the defendant had been aware that they ‘knew it was highly likely, if not certain’ that they were HIV positive, as per Lynch J. This judgment is considered informative in supplementing other recent case law on HIV transmission, most notably R v Dica (Mohammed) (2004) EWCA Crim 1103, which confirmed that an individual can be found guilty of grievous bodily harm under s. 20 for recklessly transmitting HIV to another via sexual intercourse, and that the victim’s consent to intercourse could not be equated with consent or acceptance of a risk of infection. The impact of R v Adaye may subsequently be that a charge of GBH may be brought where the defendant has only ‘second degree’ knowledge of the harm they may be causing.
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Updated 19 March 2026
This article remains broadly accurate as a summary of R v Adaye (2004) and its relationship to R v Dica [2004] EWCA Crim 1103. The core legal principles described — that reckless transmission of HIV can ground liability under s. 20 of the Offences Against the Person Act 1861, and that wilful blindness may suffice in place of actual knowledge — remain good law.
However, readers should be aware of several subsequent developments. In R v Konzani [2005] EWCA Crim 706, the Court of Appeal clarified that a complainant’s informed consent to the risk of HIV transmission (as distinct from mere consent to intercourse) could provide a defence, but that such consent must be based on genuine disclosure of the defendant’s status. This important qualification to Dica is not mentioned in the article.
More broadly, the Crown Prosecution Service has published charging guidance on the reckless transmission of serious disease, and prosecutorial practice in this area has continued to evolve. The article’s description of Dica as confirming that consent to intercourse cannot be equated with consent to the risk of infection remains accurate, but the position is more nuanced following Konzani. Readers should consult up-to-date sources when relying on this area of law.
The article’s reference to Adaye as unreported and the description of Lynch J’s reasoning cannot be independently verified against a published judgment, and readers should treat the case summary with corresponding caution.
