It is now clear that, in both England and Wales and in Scotland, the reckless transmission of HIV is a criminal offence. “Recklessness” means that the defendant was aware that he was running an unjustified or unreasonable risk. The offence is not limited to HIV, but applies to other serious sexually transmitted infections.

It is probably not essential that the defendant has received a positive result from an HIV test, if he knew that for some reason he was at a particularly high risk of being HIV-positive. In the Kouassi Adaye case, it appears that Adaye had been diagnosed with a number of STIs and advised that he was at a high risk of being HIV-positive but did not attend a testing appointment. However, Adaye pled guilty and no court has yet confirmed that a person can be criminally reckless in the absence of a positive test result. It should, however, be clear that declining to take an HIV test cannot be regarded as providing any sort of immunity from criminal prosecution.

If HIV is not transmitted, there will be no offence under English law unless the defendant had intended to transmit HIV – which would be extremely difficult to prove. In Scotland, it might be at least theoretically possible to bring a prosecution for the offence of “reckless endangerment” in such a case.

Following the Court of Appeal decisions in the Dica and Konzani cases, if the HIV-positive person discloses the fact that they are HIV-positive to their sexual partner, and their partner consents to the risk of transmission, this will be a defence to a criminal charge. It is not yet clear whether the use of condoms, without disclosure, will operate as a defence, although the Court of Appeal did suggest in the Dica case that a person who used condoms might not be said to be legally “reckless”. Given that only a very small fraction of cases of HIV transmission will result in prosecutions being brought, it is thought that a prosecution for HIV transmission by protected intercourse is unlikely – and if no transmission occurs then there can normally be no prosecution anyway, at least in England and Wales.

Prosecutions for HIV transmission by way of unprotected oral sex are also thought to be unlikely. One Canadian court has taken the view that unprotected oral sex is insufficiently risky to be caught by the criminal law (R v Edwards 2001 NSSC 80): the point has not arisen in the UK. (In Canada, it only arose because (a) prosecutions are possible in Canada for exposure as well as transmission, and (b) the prosecution in Edwards had alleged both unprotected anal sex – denied by the defendant, and unprotected oral sex – admitted by the defendant. The court therefore had to decide whether the defendant’s admission was enough in itself to justify a conviction, and held it was not.)

Prosecutions may involve leading evidence of confidential information: although doctor-patient (and similar) communications are legally confidential, they are not “privileged” and thus protected from disclosure to a court. In the Stephen Kelly case, concern was raised over the fact that the police were able to use Mr Kelly's blood samples, given under strict rules of confidentiality as part of a confidential clinical trial, to convict him. In the leader Article of the ‘Scots Law News’ (99), concern was expressed that such an apparent breach of confidentiality risks ‘Undermining confidentiality (and) strikes at the heart of serious research’. In reality, without the unique gene sequencing carried out by the University of Edinburgh’s laboratories as well as the insistence that medical and scientific records be released, the case could not have been brought. When use of the records as evidence was challenged in Court, the Judge, Lord Mackay of Drumadoon said, 'The interests of the accuses required to be balanced against the public interest. In my opinion, when that exercise is undertaken, the balance is in favour of the evidence being admitted…In the absence of any irregularity in the obtaining of the evidence and, having regard, in particular, to the facts that the accused voluntarily undertook all the tests and that he authorised the Ruchill team to release the first test to the prison medical authorities, I have reached the view that the circumstances of this case warrant the objection being repelled’