Man facing custodial sentence for not disclosing HIV status in breach of...

Man facing custodial sentence for not disclosing HIV status in breach of SOPO

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On 19 February the BBC reported the story of Mr James Defalco who, after admitting breaching a requirement of his sexual offences prevention order (SOPO) is staring down the barrel of a custodial sentence.

Defalco – formerly known by the name Derek Hornett – has heard the clang of the prison gates before, however.

Background

A quick “Google” reveals Defalco has a string of convictions for sexual offences – including offences against children and the elderly – and had breached his SOPO on previous occasions (see here and here).

In 2005, following a conviction for s.20 GBH for infecting an 82-year old woman with HIV, having entered into a relationship with her because she was “financially secure”. He was given a custodial sentence of 39 months and a SOPO including a prohibition concerning his HIV status. This has been reported in varying degrees of detail and accuracy, from a requirement to “disclose his HIV status before any future sexual relationship” to a requirement that he informs anyone he is “in a relationship with” about his “condition”

We are unable to find any details of an appeal arising from this sentencing hearing.

What’s the new offence?

It appears that Defalco has breached the SOPO by failing to comply with the prohibition surrounding his HIV status. The penalty for breach of a SOPO is up to 5 years’ imprisonment. Defalco has been sent to prison previous – for 6 months – for an earlier breach of the SOPO, however that breach appears to concern the prohibition on working with/for elderly persons.

Test for imposing a SOPO

The test for imposing a sOPO is whether or not the court is satisfied that it is necessary to make such an order for the purposes of protecting the public from serious sexual harm? (SOA 2003 s 104(1)(a) and (b)).

Issues

Of particular interest is the SOPO and the HIV term; firstly, the reporting of the SOPO is inaccurate. A SOPO may not impose a requirement, it can only impose a prohibition. The important distinction being that it can only stop someone from doing something, rather than require someone to positively do something. At least, that is what the legislation says. One can no doubt imagine how easily a positive requirement can be turned into a negative prohibition: “Mr X is required to disclose…” / “Mr X is prohibited from not disclosing…”

A few years ago the Court of Appeal began to clamp down on this sort of lexical trickery, the conclusion being that the purpose of the statute was being circumvented by some (not so subtle) word play. However, that feeling seemed to disappear quite quickly and preventive orders such as SOPOs appear to be abused on a regular basis to impose a requirement on a defendant where a court thinks it necessary (an example being the requirement to make one’s internet browser history available for inspection).

So, firstly, one might wonder whether this SOPO condition to disclose the HIV status falls foul of the statute in that respect. Secondly, there is the issue of whether or not it is proportionate and necessary – a requirement of preventive orders such as SOPOs.

A blog written by Matthew Weait – a legal academic – has questioned the legality of such conditions on similar grounds. He says: “There is no evidence of which I am aware that indicates a positive correlation between disclosure and subsequent safer sex.” On that basis he questions whether or not such a “requirement” is necessary as it does not prevent people from “serious sexual harm” – his argument is that the requirement avoids uninformed consent to sexual activity, it does not protect.

Having not seen the research upon which Mr Weait relies, I question whether the distinction being drawn is apposite. If such a requirement would enable a person to decline to have unprotected sexual intercourse with him, then surely it will protect from serious sexual harm (i.e. contracting HIV). Further, if Defalco has a history of not informing potential sexual partners of his HIV status, then it is arguable that such a condition is “necessary”.

The issues are a little more complex than this blog would suggest – however due to the need to keep these blogs short, I shan’t delve any deeper into the issues. I question the legality of the SOPO condition, however not on the basis that Mr Weait does.

The comments section below is open and we’d be interested to hear readers’ thoughts on this issue, whether they are lawyers or not.

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

5 COMMENTS

  1. “Not to do anything with significant risk of transmitting HIV without the informed consent of the other party” strikes me as perfectly reasonable and avoids the double negative lexical trickery.

  2. It may be reasonable but “not…without” and “not…unless” are still double negatives; hence a SOPO so worded could be unlawful.

    It’s true that police and prosecutors regularly abuse SOPOs by means of lexical trickery to turn prohibitions from doing things into requirements to do positive acts. In most cases that is objectionable because the SOPO then becomes onerous as well as oppressive and there is a greater risk of unintended breaches.

    But in a case like this one, what the system is asking of a person with HIV is inherently doubly negative: it is allowing him to engage in sexual activity only if the other person is aware of his condition. A SOPO that genuinely only prohibits (i.e. no double negatives) cannot achieve that state of affairs as far as I can see; at best it might prohibit the subject from infecting others with HIV.

    In any event I wonder why a SOPO was thought necessary. I haven’t checked the law on assault/sexual assault, but I would expect it to cover causing a person to be infected with a disease by deception.
    If an ancillary order rally is thought necessary, there might be a case for bringing in an order designed for this specific situation – perhaps an HIV Disclosure Order (HIVDO) or an STD Disclosure Order (STDDO).

  3. CORRECTED VERSION: It may be reasonable but “not…without” and “not…unless” are still double negatives; hence a SOPO so worded could be unlawful.

    It’s true that police and prosecutors regularly abuse SOPOs by means of lexical trickery to turn prohibitions from doing things into requirements to do positive acts. In most cases that is objectionable because the SOPO then becomes onerous as well as oppressive and there is a greater risk of unintended breaches.

    But in a case like this one, what the system is asking of a person with HIV is inherently doubly negative: it is allowing him to engage in sexual activity only if the other person is aware of his condition. A SOPO that genuinely only prohibits (i.e. no double negatives) cannot achieve that state of affairs as far as I can see; at best it might prohibit the subject from infecting others with HIV.

    In any event I wonder why a SOPO was thought necessary. I haven’t checked the law on assault/sexual assault, but I would expect it to cover causing a person to be infected with a disease by deception.

    If an ancillary order really is thought necessary, there might be a case for bringing in an order designed for this specific situation – perhaps an HIV Disclosure Order (HIVDO) or an STD Disclosure Order (STDDO). (Terrible names I know – not even acronyms.)

  4. I am representing him on Friday. Case of Richards 2015 Escape Civ 7 is authority for this kind of order. The water is indeed muddy but courts now agree the a positive requirement can be used to enforce a prohibition

    • Thanks for your comment. Richards appears to be have the effect of widening the scope of SOPO prohibitions (and with it, other preventive orders) – although the judgment suggests that it merely follows Smith. I wonder whether there is a legitimate distinction to be drawn between the two; tag and HIV status disclosure. Post-Richards, one might that unlikely, as the test appears to be whether or not the positive requirement relaxes a blanket prohibition (and it matters not whether the blanket prohibition would have been unlawful per se). A worrying state of affairs if you ask me…

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