There’s a superficial interest in this story about the man who deliberately infected lovers with HIV. Which is to point out that GBH is GBH, whatever the other circumstances, and appealing to current fashionable nostrums isn’t a good defence. The other is a rather deeper point which leads to the conclusion that we don’t in fact need quite so many politicians, quite so much politics, for we’ve the Common Law. Leading to the idea that perhaps we can fire more than a few of the taxgobblers?
The story itself:
A hairdresser has been sentenced to life in prison for deliberately infecting men with HIV after meeting them on Grindr.
Daryll Rowe, 27, had requested a more lenient punishment, claiming the disease was no longer terminal and that those diagnosed had “good and high life expectancy”.
His lawyers asked the judge to pass a sentence that would not add to the “social stigma” of HIV, but inform the public the virus is not what it was in the 1990s.
On Wednesday afternoon at Brighton Crown Court, Judge Christine Henson QC disagreed, and made history by sentencing Rowe to life with a minimum term of 12 years.
He is the first person in the UK to be convicted of grievous bodily harm with intent in relation to HIV.
It was most certainly deliberate – ripping the tops of condoms, taunting the victims days later with his HIV status and their presumed one. Vile creature in fact.
It’s not murder as no one has died and it wouldn’t have been murder before anti-retrovirals either, as death (I think, still?) must take place within a year and a day of the action.
Which brings us to the defence that was tried:
Felicity Gerry QC, defending, had highlighted comparable cases from around the world, urging the judge to pass a sentence that would not add to the “social stigma” of HIV, but inform the public the virus is not what it was in the 1990s.
OK, true, it’s the defence lawyer’s job to find anything at all in mitigation. But still, a low sentence because of social stigma?
And on to the more important point. The argument in favour of us having quite as much government as we do is that the world changes, thus the laws must change to deal with it. There’s a modicum of good sense in that point too. Except when there isn’t of course. With respect to the law maybe we could have another system, where we’ve the general principles laid out and then in each specific case we just work through those?
Sure, we cannot run any system entirely on one or the other idea but this is, to stretch matters a little to be sure, the great difference between the Roman and Common Law systems. Largely speaking, over in foreign on the continent, there are legal systems which detail what may be done by whom and how. And they really do detail the how. This means that when things change, as the world tends to do, a new law is necessary. Or at least an official recognition that this new activity should be governed in this manner.
The European Union’s laws largely operate in this manner.
Then we’ve our own legal system, based as it is upon the Common Law. We’ve basic principles encoded into it, some by legislation, some by long practice. Any new case that comes up can be judged by those principles so encoded. For example, we don’t need a new law about infecting people with HIV. It’s grievous bodily harm and we can sentence as such, job done.
This is all rather more important in business law – well, leaving liberty aside and talking instead of economics. Common Law would insist that you don’t poison the customers, nor in fact anyone else. The EU plus Roman law gives us obscenities like REACH. Where any and every new elemental combination must be proven safe – minimum costs being around €250,000 – before anyone can do anything about it. You’ve also got to have a licence to be able to trade of deal in such things. One reading of the law would be that to be a trader in odd metals and substances (oxides, chlorides, that sort of thing) would require millions in expenditure upon licences before starting. A strict interpretation stating that a rare earth trader (ooh, like, say, I used to be) should have a separate licence for each of the 17 (well, 16, Prometheum’s different), in fact a separate licence for each salt of the now 16. One for scandium oxide, one for scandium chloride, one for scandium metal, one of Al Sc….each one costing substantial sums. And then the same again for cerium, and lanthanum, and….
Yes, That’s gone a long way from Grindr to REACH but the point stands. As this HIV case shows if we’ve the general principles encoded in some manner than we don’t need to have new laws all the time, we can just run those new incidences through the old principles. As opposed to the other system, which demands new rules and new processes for each and every circumstance. And, sadly, the army of politicians to come up with them for us.
Which leads to an idea. Let’s leave the system imposing the Roman Law, start using more of our own Common sort and we get to fire more than a few of the bastard politicians. What a plan, eh?
this is why the EU is so concerned about linking trade with regulations. They know even if you’re not deliberately competing, different systems will lead to different regulatary environment.
Roman Law also leads to a society that pays very close attention to the wording and not the ‘spirit’ of the law or a contract. In France, back in the day, they introduced a law requiring motorcyclists to wear a helmet. But very few bikers wore helmets, they carried one on the attachment on the side of the seat (that most bikes have). Because, of course, ‘wear’ and ‘carry’ are both porter in French.
That is merely poor drafting, as there is a way to say “wear on the head” in French. I much prefer that lawmen and judges look to the wording rather than look within to conjure a law’s “spirit,” as I was pleased both that Gorsuch, in joining the majority, found that the law was defective for poor drafting (“void for vagueness”), while Thomas, in his dissent, found no basis for that verdict in the text of the Constitution. (https://www.continentaltelegraph.com/2018/04/17/excellent-news-immigrants-cant-be-deported-for-crimes-of-violence-says-scotus/) So let’s hope that French bikers “wearing” their helmets undeployed could not be convicted for violating this law’s “spirit.” The goal… Read more »
Naturally a British court will start from the wording of the law. But where there is ambiguity (and, despite – or because of – the best efforts of legislators, there will always be ambiguity) they will take into account how a reasonable person (the mythical ‘man on the Clapham omnibus’) would interpret it. I prefer this system, that has served us quite well over many centuries. YMMV
When teaching the user how to operate a microwave oven, an instruction manual written in English by Japanese but you can figure out what it means, may be acceptable. When throwing the accused into the slammer, I insist that the State get it right, just as I insist that the baseball player do what the rules say to put out the runner. He must tag the runner, not just exhibit prowess.
“There will always be ambiguity,” and new ambiguities will emerge, but any particular ambiguous passage can be corrected. Textualism has also served us well.
In criminal cases, any doubt over ambiguity rests in favour of the defendant – ‘beyond reasonable doubt’ – and for more serious cases, with a jury.
Almost, we do have some strict liability laws in the UK where the reverse it true. Try claiming the 13 year old you had sex with told you they were 16 and see where it gets you. Doesn’t matter if they looked it and you believed them.