Author: Kyle Ogden Covid-19 has affected everybody and restrictions are once again being imposed across the UK. Stirling University opened its doors to most undergraduate students on the 14th of September 2020 - albeit in an online setting. For most students that means returning to the University and for others, that means they will be starting their journey at the University. Just as students have had to adapt during these unprecedented times so too has the law, with court etiquette having to alter, attire to change and social distancing. At the time of writing, the first jury trial has taken place via digital technology.
Let’s get to the point. With Covid-19 making nearly every aspect of life change, does the law also need to develop to keep up with the global pandemic making indubitable changes to our social constructs? The obvious answer is yes, and this blog will investigate the matter of whether a spitting offence should now be classed as culpable homicide rather than an assault, if the victim of the attack were to die here, due to the severity of spitting and the consequences it carries. This point will be looked in detail below.
The cases that highlight this point is that of Trevor Belle, a sixty-one-year-old taxi driver and Belly Mujinga, a forty-seven-year-old railway worker; both of whom lost their lives in April this year from the virus. In each case both workers were spat on before contracting the virus, which engenders the question, would this give rise to culpable homicide?
Spitting at another person Pre-Covid, would be classified as an assault or battery in England. Assault has been defined in Scots law as ‘where one person makes an attack upon another person with the intention of effecting the immediate bodily injury of that person or producing the fear of immediate bodily injury in their mind’. Even under normal circumstances spitting would fall into this category satisfying both the mens rea and actus reus of assault.
So, would spitting fall under culpable homicide following the pandemic? Let us discuss.
Culpable homicide is hard to define. At its simplest it means ‘any unlawful killing that will not amount to murder’. The mens rea for culpable homicide differs depending on which category of culpable homicide the crime falls under.
Hume splits these categories into the following: Assault type, Unlawful Act Type, Lawful Act Type and the Voluntary Act Type. The category of culpable homicide that spitting would come under, would depend upon what the mens rea is for each case.
When dealing with a case such as Belle’s or Mujinga’s the courts should be more critical of their assessment, as this relates to people who would be classified as being in ‘higher risk categories.’ Both deceased were part of the ‘BAME’ community, who are twice as susceptible to contracting the virus. Clearly, the reasonable person can see that spitting at someone who is in a much higher risk category is going to endanger the person significantly, therefore, constituting more than an assault, especially if it is known to the attacker and the victim then later dies following the attack.
While it may seem logical for one to want the courts to move away from assault in cases such as Belle and Mujinga, the reality is that there will be a hard burden of proof for the courts to even consider the case. Furthermore, with the standard of proof being higher for criminal cases - with the prosecution having to prove their accusation beyond all reasonable doubt – it is even more difficult to get a conviction.
As it has been highlighted, Belle and Mujinga were key workers, this infers that they would meet a greater amount of people outside of the isolated spitting incident. How does one prove that they did not contract the virus from another source? On the other hand, however, looking at the English case of R v Dica, the judges recognised and amended the law insofar that reckless transmission of a disease could cause grievous bodily harm. Although this case is about a different disease and offence, it raises the point that common law has been flexible and that there is a willingness to recognise the severity of harm that diseases can cause.
Overall, it will be interesting to see whether common law will develop in such a way that will recognise a spitting offence as culpable homicide. While it will require a high standard of proof, this does not mean it is impossible, making it interesting to see if any case comes to light, whether it will end in litigation and what the ratio will be.
‘First jury trial since lockdown a success,’ Published 23 July 2020, https://www.scottishlegal.com/article/first-jury-trial-since-lockdown-a-success.  Scots law makes no distinction with assaults unlike with English law; Timothy H. Jones and Ian Taggart, Criminal Law, 2018.  Timothy H. Jones and Ian Taggart, Criminal Law, 2018.  Berry v HMA (1976) S.C.C.R. Supp. 156, per Lord Keith at 156.  Timothy H. Jones and Ian Taggart, Criminal Law, 2018.  Hume, Commentaries, I, 191; see also i, 234 at ‘3.’  Hume, Commentaries, I, 192; see also i, 234 at ‘2.’  Hume, Commentaries, I, 191; see also i, 233 at ‘1.’  Hume, Commentaries, I, 239-254.  Black Asian and Minority Ethnic.  BAME coronavirus patients up to twice as likely to die from coronavirus, according to Public Health England report, Published 2 June 2020, https://www.telegraph.co.uk/news/2020/06/02/bame-coronavirus-patients-twice-likely-die-coronavirus-according/.  Another point to note is that the antibody test is wrong half of the time, meaning it is very impractical to use this extrinsic evidence to try and push for a criminal conviction; CDC: Antibody test results are often wrong and should not be relied upon, May 27 2020, https://www.businessinsider.com/cdc-says-antibody-test-results-wrong-half-the-time-2020-5?r=US&IR=T.  R V Dica  EWCA Crim 2304.