Using HIV Forensics in Criminal Prosecutions

The National AIDS Trust and NAM have launched HIV Forensics: The use of phylogenetic analysis as evidence in criminal investigation of HIV transmission.

This briefing paper is aimed at HIV virologists or clinicians who may be called as expert witnesses in criminal HIV transmission cases, as well as professionals working in the criminal justice system. It explains how phylogenetic analysis should and should not be used in criminal trials for the reckless transmission of HIV.

Since the first prosecution for HIV transmission in the UK in 2001, the complexities of prosecuting what is an 'invisible crime' have become clear, and five years on there is still evidence of uncertainty and error relating to these prosecutions within the criminal justice system. This has been heightened by the realisation that it is extremely difficult to determine who infected whom and when, and so the assumptions often made by police officers and prosecutors as to who is the guilty party are not enough to prove criminal liability.

The Crown Prosecution Service in its draft policy on 'Prosecuting cases involving the sexual transmission of infections which cause grievous bodily harm' rightly requires scientific evidence of transmission to prove guilt. HIV virologists and clinicians are therefore routinely called as expert witnesses in these trials and phylogenetic analysis is one of the forms of HIV Forensics used. Phylogenetic analysis has become a key element in several cases and has been used to prove both guilt and innocence.

The manner in which phylogenetic analysis has been used in certain cases has however caused widespread concern. The one acquittal to date in criminal prosecutions of HIV transmission came after Dr Anna Maria Geretti, HIV virologist and one of the co-authors of the paper, highlighted serious flaws in the prosecution's use of phylogenetic analysis.

This paper was written in response to concern that miscarriages in justice could result from future inaccurate use of phylogenetic analysis and was co-authored by leading experts in the fields of virology, medicine, criminal law, and policy. Its use will ensure that expert witnesses involved in any future case are informed of the uses and limits of phylogenetic analysis.

Yusef Azad, of the National AIDS Trust, comments:

"With prosecutions for HIV transmission beginning relatively recently, everyone involved in these cases, including HIV clinicians and virologists, are still very much feeling their way. As no-one can witness the moment of HIV transmission, HIV forensics can play an important role in determining the guilt or innocence of the defendant. Any scientific evidence used however needs to be analysed and presented extremely carefully by HIV clinicians and virologists to avoid miscarriages of justice.

We hope that this paper will be of assistance to all HIV virologists or clinicians called as expert witnesses in criminal HIV transmission cases and plan future work exploring the use of other types of HIV forensic evidence not addressed in this paper".

Notes to the Editor:

1. HIV Forensics: The use of phylogenetic analysis as evidence in criminal investigation of HIV transmission was co-authored by Edwin J Bernard of NAM, Yusef Azad of the National AIDS Trust, Anne-Mieke Vandamme of the Rega Institute for Medical Research, Belgium, Matthew Weait of the Research Institute for Law, Politics and Justice at Keele University and Anna Maria Geretti of the Department of Virology, Royal Free Hospital, London.

2. The National AIDS Trust (NAT) is the UK's leading independent policy and campaigning voice on HIV and AIDS. It aims to prevent the spread of HIV, encourage early diagnosis, ensure people living with HIV have access to treatment and care, and eradicate HIV-related stigma and discrimination.

3. NAM is an award-winning, community-based organisation, which works from the UK. It delivers reliable and accurate HIV information across the world to HIV-positive people and to the professionals who treat, support and care for them.