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Victoria station, where the incident took place in March. PA

Belly Mujinga: legal experts on the questions raised when someone dies after being spat on during the coronavirus pandemic

The death of Belly Mujinga, a ticket collector in London, has added a new dimension to concerns about the Coronavirus pandemic. It is likely to be one of the most serious incidents in a series of cases that have seen people deliberately spitting or coughing on others and saying they are infected.

Mujinga was working when a man claiming to have COVID-19 spat and coughed on her and a colleague. She died two weeks later. CCTV footage of the attack on Mujinga is currently being reviewed and it remains to be seen whether prosecution will be brought in this particular case.

But her sad death raises questions about what legal action can be taken in cases where a person is suspected of using the virus as a weapon. The relevant offence in these circumstances would be constructive manslaughter. For manslaughter to be made out, an offender must commit a criminal offence, that offence must be objectively dangerous and it must cause death.

Where an offender has transmitted, or has threatened to transmit, a virus by coughing or spitting at their victim this would, in most cases, amount to a criminal offence. The legal position here is quite straightforward. To threaten someone with harm is an assault, and to apply unlawful force to their person, by spitting, for example, is a battery. Where the offender explicitly declares that they have coronavirus, or any other condition, (whether this is in fact true or not is irrelevant) it is more likely that an assault is committed. It is sufficient that the victim perceives harm, even if that harm cannot be carried out. The offender must either intend or risk that their victim will feel threatened, or that force will be applied. A number of prosecutions have already been brought against people who have threatened to transmit COVID-19 by deliberately coughing on people.

The difficulty with proving the more serious charge of manslaughter in a case relating to COVID-19, though, would be the requirement to establish, beyond reasonable doubt, a chain of causation; a link between the criminal act and the death. The real hurdle to conviction would be the ease with which coronavirus can be contracted. The prosecution would have to prove that the virus was not contracted from some person other than the defendant.

Dependent on how many people the victim has come into contact, that list of potential causes may be quite long. This is particularly the case for emergency workers and other frontline staff.

We have all been warned that people with underlying health conditions are particularly vulnerable to the virus. However, the impact of a pre-existing health condition, making the infection unexpectedly serious, would not be an impediment to criminal conviction. It is a general principle of criminal law that you must “take your victim as you find them”. A defendant could not argue that they were not responsible for the death if it had been exacerbated by an underlying health condition.

Given the successful prosecutions for non-fatal offences relating to coronavirus, and the clear statement from the Crown Prosecution Service that it will take these matters very seriously, it is not beyond reason that there could be a conviction for manslaughter in a case where someone died after being attacked by someone saying they were aiming to spread the virus.

Manslaughter is realistically the only possible offence that could be committed, however, rather than murder. To prove murder requires an intention to kill or an intention to cause serious injury. While the virus is deadly, it would be difficult to establish that someone intended to kill their victim by spitting or coughing on them. Manslaughter does not require proof of such intention to kill or cause serious injury.

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