Unsafe convictions?

Why advocates have concerns over recent HIV and hepatitis B prosecutions, by Edwin J Bernard and Michael Carter

More than 18 months after the last successful prosecutions for ‘reckless’ transmission of a sexually transmissible virus in the United Kingdom, two separate guilty verdicts for grievous bodily harm were handed down in English courts in November 2008.

One case, heard at Preston Crown Court, was the thirteenth successful criminal HIV transmission conviction in the UK; the second, at Gloucester Crown Court, was the first-ever successful prosecution for ‘reckless’ sexual hepatitis B transmission.

These were the first successful prosecutions since the Crown Prosecution Service (CPS) produced guidance¹ on how and when to prosecute the transmission of serious sexual infections, and yet, in both cases, the CPS does not appear to have followed its own guidance, which states:

• Prosecutions are unlikely to take place as a result of one-off sexual encounters (the alleged hepatitis B transmission took place as a result of a single sexual encounter). “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.

• Scientific evidence must be used to show that the defendant infected the complainant, but this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.”

• Guilty pleas will not be accepted unless there is firm evidence proving the defendant’s guilt. “We will not accept a plea to section 20 [of the Offences Against the Person Act 1861 - reckless transmission] unless there is scientific, medical and factual evidence which proves the contention that the defendant recklessly and actually transmitted the infection to the complainant.”

“These cases shame the Crown Prosecution Service for ignoring their own guidelines and policies,” Chris Morley, Policy and Publications Coordinator at George House Trust, told HTU.

Reckless HIV transmission

On November 21^st, a 41 year-old HIV-positive man who pleaded guilty to ‘reckless’ HIV transmission was sentenced to one year in prison at Preston Crown Court.

The court was told that the man, who has haemophilia and acquired his HIV infection from infected blood products in his late teens, was thought to have infected his long-term female partner between 1994 and 1996. From press reports, however, it is unclear how the CPS proved this conclusively.

His lawyer argued that he had not disclosed his HIV infection to his partner due to the stigma attached to HIV. Condoms were used at the start of the relationship, but as the relationship developed the couple had unprotected sex. Shortly after the final separation, the man's female partner was diagnosed with HIV, as was a subsequent male partner to whom she is said to have transmitted the virus.

It is of note that the one-year sentence in this latest case is much shorter than those handed down in any of the previous cases ending in a conviction of reckless HIV transmission. This may have been because the accused acquired his HIV infection from infected blood products.

In his sentencing comments, Judge Andrew Woolman said: “You were the victim of both haemophilia and from the misfortune of being given infected blood.” He added, “It is a tragedy that I have to be sentencing you at all and I cannot restore back your health. [But] I have come to the conclusion that where a person puts their own needs before those of others there has to be some measure of punishment."²

The case appears to have strong similarities with early convictions for reckless HIV transmission, relying on a guilty plea and vague “scientific evidence”, leading to concerns about the nature and quality of the legal advice the man received.

“As far as we are aware the defendant did not seek the support and advice of HIV organisations who are expert in these cases,” noted George House Trust, “nor did he seem to have an expert barrister familiar with the most recent cases, none of which led to convictions.”

Reckless hepatitis B transmission

Campaigners have expressed even more concern over the first successful prosecution for the sexual transmission of hepatitis B virus on November 18th, suggesting that this may be a miscarriage of justice.

The case involved a 29 year-old man who was accused of infecting a 27 year-old woman with the virus after unprotected sex. The man was convicted of grievous bodily harm at Gloucester Crown Court after entering a guilty plea, and was sentenced to two years in prison.

The two-year sentence the man received is lower than those imposed upon individuals accused of recklessly transmitting HIV, but is still at the upper end of the sentences allowed for grievous bodily harm. The woman developed chronic infection with hepatitis B. Not all patients with chronic hepatitis B develop health problems because of the infection. Should treatment be required, a number of highly effective drugs are available.

Lisa Power, Head of Policy at the Terrence Higgins Trust (THT) called the conviction a “miscarriage of justice”, adding “it is entirely inappropriate for someone to get two years for what is in most cases a treatable …condition. But then, it's inappropriate to prosecute reckless transmission of a sexually transmitted infection in the first place."

This prosecution had a number of worrying similarities with early prosecutions for the reckless transmission of HIV. Most notably, the accused entered a guilty plea when presented with scientific evidence apparently confirming that he was the source of the complainant’s infection. Like the early prosecutions for the reckless transmission of HIV, the case involved a migrant to the UK.

Yusef Azad, Director of Policy and Campaigns at the National AIDS Trust (NAT) commented: “This is a significant and worrying case - the first successful prosecution in England for disease transmission other than HIV. Of course we want people who know they have a communicable disease to look after the health of their sexual partners, but prosecuting epidemics simply fills prisons and does nothing to prevent disease. We have serious concerns as to whether the new prosecution guidelines were properly followed in this case; we note as in the first HIV cases that it is a migrant who is targeted; we challenge the severity of the two year prison sentence for hepatitis B which in adults is…treatable.”

HIV and the law on NAMlife

For more information on HIV transmission and the criminal law in the UK, visit www.namlife.org.

Global Criminalisation Scan

The GNP+ Global Criminalisation Scan website, also launched on December 1st, is now online. A living, growing document of laws, judicial practices and case studies of criminalisation worldwide, it includes data from over 150 jurisdictions worldwide.