Key issues in criminal legislation and prosecutions policy

There is no legislation that specifically criminalises reckless or intentional HIV transmission in England and Wales. Rather, the reckless transmission of HIV was the first sexually transmitted infection (STI) to be successfully prosecuted, following several failed attempts by the Crown Prosecution Service to apply the OAPA 1861 to both HIV transmission via sex and injecting drug use and to sexual herpes transmission (see: Timeline of developments in the criminalisation of HIV and STI transmission in the UK).

Two separate English Appeal Court rulings^1,2 as well as Crown Prosecution Service (CPS) policy³ and prosecutorial guidelines⁴ have further defined what behaviour by people living with HIV might come under the scope of the criminal law, and under what circumstances such behaviour might be found culpable.

However, although these rulings and CPS policy and guidelines have clarified some of the uncertainties regarding under what circumstances people living with HIV could be charged under the OAPA 1861, they have by no means covered all eventualities. In addition, although the CPS policy and guidelines are critically important, it cannot be emphasised enough that their policy and guidance only comes into effect following a police investigation, which can be distressing and invasive for both accused and complainant(s). It is only after a police investigation that the CPS will decide whether or not to prosecute.

The CPS has a two-prong test when deciding whether or not to prosecute a case of 'reckless transmission'. First, the CPS must believe it has enough evidence to prove that, at the time of alleged transmission, the accused:

• knew he or she was HIV-positive

• knew that they were capable of sexually transmitting HIV

• had sex with someone who did not specifically consent to the risk of acquiring HIV and that that person acquired HIV as a result.

Such issues, notably difficulties proving that the accused infected the complaint(s), are highlighted in the CPS documents. They have resulted in many cases being dropped⁵ and at least three individuals being acquitted.⁶ If they think they are unable to prove that the defendant – and only the defendant – could have infected the complainant, then they will have no case (see FAQs below).

The second prong of the test is whether a prosecution is in the public interest.  The CPS does not specify whether it considers public health in making this decision.⁷ The CPS documents do explain, however, that even if the person who made the original complaint wants to withdraw their complaint, it is the CPS that has the final say over whether a case goes to court.⁸ This means they may also force a complainant to testify even if they have changed their mind.

The OAPA 1861 applies in Northern Ireland (although the maximum prison sentence for Section 20 - 'reckless transmission' - is seven years). There have been no prosecutions to date. Northern Ireland has its own Crown Prosecution Service. It is unclear whether the CPS policy and guidance produced for England and Wales would be followed in the province.

There is no legislation that specifically criminalises reckless or intentional HIV transmission in Scotland. The criminal law was first used in 2001 to find an individual criminally responsible for HIV transmission under the Scottish common law offence of ‘culpable and reckless conduct’. Since then, the reckless transmission of HIV has been prosecuted under this law. In one case, the law was used to prosecute the reckless transmission of HIV and hepatitis C together. Since Scottish law focuses on behaviour (unlike English law which focuses on the harm that results from such behaviour), exposing others to the risk of HIV transmission ('HIV exposure') can be, and has also been, prosecuted under this law.

It is still unclear whether disclosure in the absence of condoms is a legitimate defence to accusations of 'culpable and reckless conduct’. Scottish law does not recognise consent as a defence to an assault charge,⁹ and, in the absence of an HIV-transmission case in Scotland where consent has been used as a defence, it is unclear whether the law would take a similar approach to cases of reckless conduct. However, it was recently clarified¹⁰ that the use of a condom in the absence of disclosure would be a defence even if transmission subsequently occurred.

Consequently, all unprotected sex by people with HIV (or hepatitis C) is potentially prosecutable whether or not disclosure prior to sex takes place and regardless of whether transmission subsequently occurs.

Four cases have reached the Scottish courts. Of the three men found guilty, the first was sentenced to five years;[ref] the second (also convicted of sexually transmitting hepatitis C) to nine years;¹¹ and the third (also convicted on three counts of HIV exposure) to ten years in prison.¹² The fourth man was deemed mentally incapable of standing trial and has been detained indefinitely in a psychiatric facility.¹³

Under all criminal and public-health laws in all four UK jurisdictions, public- health interventions, police investigations and prosecutions are also possible, and have taken place, for the transmission of other sexually transmitted infections.

CPS guidance for England and Wales does not, in fact, specifically refer to HIV but to all "sexual transmission of infection". Although the law has been used for other STIs much less frequently, in England there have been arrests and/or prosecutions for individual cases of hepatitis B,¹⁴ herpes and gonorrhoea¹⁵ transmission. Scotland has, so far, only prosecuted hepatitis C transmission in connection with an HIV transmission.¹¹