Concerns over miscarriage of justice after first UK conviction for transmission of hepatitis B

Michael Carter
Published: 21 November 2008

Campaigners have expressed concern that the first successful prosecution for the sexual transmission of hepatitis B virus 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.

Although there have been a number of successful prosecutions for the reckless transmission of HIV during unprotected sex, this is the first time that another sexually transmitted infection has been successfully prosecuted.

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.

There have been no successful prosecutions for the reckless of transmission of HIV after it was shown that phylogenetic analysis could not prove transmission between two individuals. Pressure from community organisations, activists and clinicians led to the production of guidance by the Crown Prosecution Service regarding prosecution for the transmission of HIV. This guidance notes that it is difficult to obtain evidence to secure a successful prosecution of reckless transmission of HIV. However, the guidance also included information about the prosecution of other sexually transmitted infections, including hepatitis B.

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 of the Terrence Higgins Trust 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."

Like the early prosecutions for the reckless transmission of HIV, the case involved a migrant to the UK.

Yusef Azad of the National AIDS Trust who has been a leading campaigner against the criminalisation of HIV transmission 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.”

Two prosecutions for reckless HIV transmission have resulted in not guilty verdicts because the defence barrister and solicitor were well-informed about the unreliability of “scientific” evidence that has been relied upon by the police and prosecution to either secure a guilty plea or conviction.

The defence barrister in this case, however, used language employed by prosecution counsel in the early HIV transmissions, saying his client was guilty of “biological GBH”. Lisa Power commented that this case “illustrates why it is important for someone accused of transmission to get an appropriately informed solicitor and barrister - a defence team that challenges prejudice rather than colluding with it”.

A final worrying similarity with the prosecutions for HIV transmission has been the way the case has been reported by the press. Both The Daily Mirror and The Sun included irrelevant details about the convicted individual’s ethnicity.