Introduction

In recent years, the use of the criminal law to prosecute HIV-positive individuals for engaging in activities that may transmit HIV has attracted the attention of policy- and lawmakers in various countries, including the UK. This has been accompanied by the prosecution internationally of a few high profile cases, including one successful prosecution under Scots Law.

Neither English nor Scots Law carry legislation specific to accommodate criminal prosecutions for HIV transmission, and would rely therefore upon use of common and case law.

Interest in this area of law and HIV is relevant not only for legal professionals and policy makers, but also for those providing services and, in particular to people with HIV.

This article summarises cases of interest both in terms of HIV and also relevance with respect to transmission of other STIs.

Timeline

• 1888: In the leading case of R v Clarence, it is held that the transmission of an STI cannot amount to the offence of “inflicting grievous bodily harm” under the Offences Against the Person Act 1861 (England and Wales), because the term “infliction” implies some sort of attack, rather than simply causing harm.
• 1992: Media outcry after a HIV-positive man is accused of deliberately infecting four women with HIV. It is thought that no criminal law applies, and so no prosecution is brought. The Home Secretary states in Parliament that he has no plans to legislate to make the deliberate transmission of HIV a criminal offence.
• 1993: The Law Commission publishes a review of the law on offences against the person, proposing that there should be offences covering the reckless and intentional transmission of diseases, including HIV.
• 1997: The House of Lords decides, in R v Ireland, that a man who causes psychiatric injury to a woman by means of silent telephone calls can be guilty of “inflicting grievous bodily harm”. Commentators subsequently note that this seems to have the effect of overruling the decision in R v Clarence, and opens the door to prosecutions for the reckless transmission of HIV under English law.
• 1998: A prosecution is brought in York for the transmission of hepatitis B, but the trial judge rules (seemingly on the basis of R v Clarence) that this cannot be a criminal offence.
• 1999: the Home Office publishes a consultation paper following on from the 1993 Law Commission proposals, suggesting that there should be legislation to make it an offence to deliberately – but not recklessly – transmit HIV or other diseases.
• 2001: First conviction in the UK for the transmission of HIV: Stephen Kelly is convicted in Scotland (where a different system of criminal law applies) of the offence of “reckless injury” after infecting his girlfriend with HIV.
• 2002: A prosecution is brought in London for the transmission of viral herpes (Sullivan) but is dropped after the judge hears that the complainant had sought hospital treatment for the symptoms of herpes ten months before having sex with the defendant.
• February 2003: the first English prosecution for the transmission of HIV (Mvula) is abandoned after evidence that the defendant did not know she was HIV-positive at the time of the alleged offence.
• October 2003: the first English conviction for the transmission of HIV – Mohammed Dica is convicted of two counts of “unlawfully and maliciously inflicting grievous bodily harm”.
• January 2004: Kouassi Adaye pleads guilty to one charge of inflicting grievous bodily harm by transmitting HIV.
• May 2004: Court of Appeal hears an appeal against Dica’s convictions and confirms that the reckless transmission of HIV is an offence under English law – R v Clarence no longer representing the law - but quashes Dica’s convictions and orders a retrial on the basis of a misdirection by the trial judge on the effect of consent. The court confirms that consent by the complainant to the risk of infection is a valid defence to a charge of recklessly transmitting HIV.
• May 2004: Very shortly after the Court of Appeal’s decision in the Dica case, Feston Konzani is convicted of three counts of inflicting grievous bodily harm by transmitting HIV. His appeal against conviction is dismissed in March 2005.
• March 2005: After a fourth trial (the second having been abandoned for unspecified legal reasons, and the third abandoned after the jury failed to reach a verdict), Mohammed Dica is convicted of one count of inflicting grievous bodily harm by transmitting HIV (one of the complainants in the first trial having felt no longer able to give evidence).
• April 2005: Paulo Matias pleas guilty to one charge of inflicting grievous bodily harm by transmitting HIV.
• May 2005: Two further Scottish prosecutions for the reckless transmission of HIV are halted, at least temporarily: one (Giovanni Mola) because the accused is no longer in Scotland and cannot immediately be brought back from Italy to stand trial; a second (Christopher Walker) because the accused is found unfit to stand trial and is ordered to be detained in a psychiatric hospital.