Why NAT opposes prosecutions for reckless HIV transmission
NAT has consistently opposed prosecutions for reckless HIV transmission. Read here a brief summary of 'Why NAT opposes prosecutions for reckless HIV transmission'.
Table of UK cases
This grid shows all the known cases in the UK where there has been a prosecution for the reckless sexual transmission of serious infections. See BHIVA conference poster 'Do judges understand HIV?' for an analysis from case transcripts of misconceptions about HIV in court proceedings.
Crown Prosecution Service (CPS) Guidance on Prosecutions
In March 2008, after a lengthy consultation process, the CPS published a Policy Statement and Legal Guidance on 'Prosecuting cases Involving the Intentional or Reckless Sexual Transmission of Infection'. This Guidance provides helpful clarification on the circumstances in which prosecutions for HIV transmission might take place.
The full CPS guidance can be read on the CPS website.
Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales
NAT and THT have published a leaflet which explains clearly for individuals issues around prosecutions for HIV transmission. Download Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales (updated May 2010) here.
Hard copies of the leaflet can be requested from firstname.lastname@example.org
Prosecutions in Scotland
There have been four prosecutions in Scotland for HIV transmission on grounds of ‘culpable and reckless conduct’. The fourth of these prosecutions also resulted in conviction on three counts of exposing sexual partners to the risk of HIV infection, even though no transmission occurred. Convictions only for exposure are not possible in England, Wales and Northern Ireland.
On 1 May 2012 the Crown Office and Procurator Fiscal Service (COPFS - the Scottish prosecution authority) published Guidance on 'Intentional or Reckless Sexual Transmission of, or Exposure to, Infection'. NAT, THT and HIV Scotland, along with a number of individual legal and medical experts, were closely involved in the development of the document.
NAT continues to have concerns about prosecution policy in Scotland, and in particular the prosecution of 'exposure' where no transmission has taken place. Nevertheless the Guidance brings welcome clarity for people with HIV and does limit the occasions when a prosecution might be considered. NAT will now campaign for the implementation of the Guidance and for police in Scotland to agree investigation guidance in line with prosecution policy.
NAT have worked with THT and HIV Scotland to publish a resource on 'Prosecutions for HIV & STI Transmission or Exposure: A guide for people living with HIV in Scotland' - this easy-read guide to the law is recommended to people with HIV in Scotland and those who support them who maybe concerned about this issue.
'The Association of Police Officers (ACPO) has agreed Investigation Guidance relating to the Criminal Transmission of HIV. For more information on how the police are advised to investigate these allegations go to Police Investigations
HIV Forensics - Phylogenetic Analysis and RITA Testing
In response to concerns about the inappropriate use of scientific evidence during prosecutions for the reckless transmission of HIV, NAT and NAM have produced HIV Forensics: The use of phylogenetic analysis as evidence in criminal investigation of HIV transmission.
This briefing paper is aimed at professionals working in the criminal justice system as well as HIV virologists or clinicians who may be called as expert witnesses in criminal HIV transmission cases.
It explains how scientific evidence known as phylogenetic analysis should and should not be used in criminal trials for the reckless transmission of HIV.
Read the HIV Forensics briefing paper.
There have been recent claims from some quarters that phylogenetics can prove direction of transmission but this has been challenged as unfounded by experts - see aidsmap for more information.
In a number of countries new tests known as 'RITA tests' are being used to assess whether someone diagnosed HIV positive has been recently infected (they are also sometimes known as 'STARHS tests' or 'incidence tests'). In the UK newly diagnosed individuals are also being told the result of this RITA test. There is a danger that these tests are misused in criminal proceedings in an attempt to prove responsibility for infection when in fact they do not provide the necessary degree of certainty or accuracy at an individual level.
NAT has produced a report on RITA tests and criminal prosecution - 'HIV Forensics II: Estimating the likelihood of recent HIV infection - Implications for criminal prosecutions'.
More information on RITA testing can be found on the HPA website.
It is especially important that any patient given a RITA test result is carefully advised that it only gives an approximate indication of recency. The HPA have published a Patient Information Sheet which should also be given to the patient in these circumstances.
NAT and THT have expressed serious concerns to the Sentencing Guidelines Council about the long custodial sentences being given to those convicted of reckless HIV transmission. Read NAT and THT's joint consultation response here.
The Sentencing Guidelines Council has however reaffirmed the appropriateness of 'a significant custodial sentence' for those convicted of this offence. We are currently drafting a further response to the Sentencing Guidelines Council in advance of it issuing its final guidance.
To share your thoughts and experiences on criminal prosecutions for HIV transmission please contact Yusef Azad, Director of Policy and Campaigns: email@example.com / 020 7814 6732.