UK: Long-awaited guidelines for prosecuting criminal HIV transmission published

It has taken a year longer than anticipated, but the Crown Prosecution Service for England & Wales has finally published their policy on prosecuting criminal HIV transmission.

Thankfully, the document bears almost no relation to the draft version originally published in September 2006, following consultation with HIV experts and advocates.

Naturally, then, a (right wing) think-tank quoted in the (right wing) Daily Mail believes the CPS is being too lenient.

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

"Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time," he added.

"These rules are too lenient, and they will lead people to think they will not be prosecuted."

On the other hand, my story for aidsmap.com, includes criticism from academic and practicing lawyers who think the guidance is wishy-washy (HIV is never mentioned by name), vague (condoms are never mentioned by name) and fails to elucidate any further on the real question we all really, really want to know: under what circumstances is someone likely to be prosecuted for reckless HIV transmission?

The Daily Mail story, and my aidsmap story, are below (for balance).

Interestingly, the Daily Mail changed its story (the original is now gone forever, sadly) within hours of its publications from being quite surprisingly balanced, to one that seems to wish the CPS guidelines had changed the law and made all unprotected sex by HIV-positive people a criminal act. I should also warn that if you click on the link to the Daily Mail website, you will see one of the most offensive (and laughably reactionary) comments I've ever read.

HIV carriers could escape jail for passing on infections to others
By STEVE DOUGHTY
Last updated at 10:47am on 15th March 2008

Anyone deliberately infecting a sexual partner with HIV through a one-off encounter should not be charged with a crime, prosecutors ruled yesterday.

A single sexual incident will not count as evidence that they have deliberately tried to infect their partner with the virus, the Crown Prosecution Service said.

Cases of intentional or reckless transmission of sexual infection will only be brought against those who have infected a series of partners, or have infected one partner during a period of regular risky sex.

The rules were set out to clarify the law on reckless infection and to guide prosecutors on how to deal with a crime that can lead to a life sentence for those convicted.

They also said that those accused of reckless HIV infection are themselves "victims", because they suffer from a devastating condition.

Eleven defendants have been taken to court in England for transmission of the Aids virus.

Ten of the cases ended in a conviction. Defendants are charged with causing grievous bodily harm under the 1861 Offences Against the Person Act.

The first person to be jailed for infecting partners was given eight years in 2003 for infecting two women.

The sentence on Mohammed Dica, a married father-of-three, was cut to four and a half years after a re-trial found that he had deliberately infected only one woman.

The guidance, set out in a CPS policy document, said it would be necessary to prove a "sustained course of conduct" in order to find a defendant guilty - in other words a single sexual encounter does not amount to a crime.

"It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards, thereby increasing the risk of infection to an unacceptable level," it said.

The document also said: "We appreciate too that those who are defendants in these cases may be seen as victims themselves, as they also have the infection that they are alleged to have transmitted to another person."

The statement set out a series of other reasons for prosecutors to be cautious before bringing charges.

Those newly told that they have an infection could be in a state of shock or might not have fully understood the diagnosis.

Prosecutors were told that someone who spread a sexual infection could also have a defence to a charge if the victim knew of their infected status.

The Director of Public Prosecutions, Sir Ken Macdonald, said: "Although these types of cases are rare, we are publishing this statement because we recognise the importance of consistent decision-making. We hope that it provides clarity."

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

"Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time," he added.

"These rules are too lenient, and they will lead people to think they will not be prosecuted."

Guidelines on prosecuting criminal HIV transmission for England & Wales finally published
Edwin J. Bernard, Wednesday, March 19, 2008

Last Friday, the Crown Prosecution Service (CPS) for England and Wales published its long-awaited policy statement and legal guidance for prosecutors for cases involving the intentional or reckless sexual transmission of serious infection.

Although the policy statement (which can be read here) and legal guidance (which can be read here) have generally been welcomed by the two major HIV policy organisations, because they clarify some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, some legal experts say the documents are vague – for example, neither HIV nor condoms are specifically mentioned – and leave important questions unanswered.

The CPS issued the first draft of its policy statement in September 2006. Following widespread criticism of both the policy and CPS’ lack of understanding regarding issues of harm, transmission and the relationship between scientific evidence and causation, the policy went back to the drawing board, missing its original February 2007 deadline.

“We have consulted widely on the development of this policy statement and have benefited substantially from listening to the views and concerns of others,” the latest CPS policy statement notes. “We have greatly appreciated their input; however, the content of this policy statement is the responsibility of the CPS alone.”

“We are publishing this statement because we recognise the importance of, and the need for, consistent decision-making,” it continues. “We also recognise the potential tension between public health and criminal justice considerations. However, the criminal law exists in part to protect those who are the victims of unlawful conduct by others, including through the unlawful transmission of sexual infection.”

Of note, the guidance does not specifically mention HIV, although all thirteen prosecutions that have taken place in England & Wales since 2003 have been for reckless HIV transmission.

What is clarified?
Two national HIV policy organisations, Terrence Higgins Trust (THT) and the National AIDS Trust (NAT) have already published documents providing initial, brief explanations of how the CPS policy may apply to reckless and intentional HIV transmission. (The THT document can be downloaded here, and the NAT document can be downloaded here.)

In short, the policy clarifies that:

• Prosecutions are likely to talk place within relationships, and not as a result of one-off sexual encounters. “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.

• Scientific evidence must be used to show that the defendant infected the complainant, but that this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.

• The defendant has to have known they were infected when transmission took place to be convicted, although there are some other, very limited circumstances (termed ‘wilful blindness’ e.g. where someone has refused to test despite explicit clinical advice to do so because of symptoms) that could result in prosecution and conviction.

• In order to be convicted, the CPS must prove that that the defendant understood that they were infectious to other people as well as understood how the particular infection is transmitted.

• Informed consent of the complainant to the risk of HIV infection is a defence against a charge of reckless HIV transmission. Disclosure is one way of informing the complainant, but the CPS will allow for other possible ways in which the complainant might have been ‘informed’ of the defendant’s HIV status – whether from a third party, or a hospital visit, or from obvious symptoms of infection.

• Consistent condom use is a defence against a charge of reckless HIV transmission. However, the word ‘safeguards’ is used, rather than condoms, because it appears that the CPS is trying to cover a wide range of differently transmissible conditions.

• Transmission must take place for a recklessness charge. There is no crime of ‘attempted reckless transmission’. THT says it has “seen a number of cases where local CPS officers have tried to bring non-existent charges, mainly of ‘attempted recklessness’, which is clearly nonsense. All such cases have foundered upon reaching court. It is very helpful that the CPS have stated clearly that this is not appropriate. However, it is possible to bring a charge of attempted intentional transmission, and there is no defence of consent available in charges of intent. To date, nobody has been successfully prosecuted for intentional transmission.”

Positive responses
The CPS policy document says in its conclusion that, “cases involving the intentional or reckless sexual transmission of infection may raise very difficult and highly sensitive issues. We recognise that obtaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult and that accordingly it is unlikely that there will be many prosecutions.”

Both THT and NAT – who along with the African HIV Policy Network, the British HIV Association, Positively Women and the (now defunct) UKC – were consulted on the policy document, cautiously welcome its publication.

"For years now we have seen huge variations in how justice has been administered in this area of the law. This has caused problems for police, courts and people caught up in prosecutions." said THT’s Head of Policy, Lisa Power. "The new CPS guidance will go a long way towards removing confusion, cutting the most inappropriate investigations short and clarifying where people with HIV and other STIs stand if they transmit them."

NAT’s Chief Executive, Deborah Jack, notes that, “this new guidance from the CPS is helpful in clarifying the prosecution process. The level of evidence needed to prove intentional or reckless sexual transmission of infection has rightly been set very high and it is unlikely that there will be many prosecutions. However whilst prosecutions continue the National AIDS Trust will work to ensure the best possible advice is available to prosecutors, lawyers, police, support organisations, healthcare workers and people living with HIV.”

‘Disappointing’ and vague
However, academic lawyer, James Chalmers, Senior Lecturer at the University of Edinburgh School of Law, says that, “it’s disappointing that the CPS are too coy to use the word ‘condom’ in the document... In terms of intelligible public guidance it leaves a lot to be desired.”

He also criticises the document for leaving the most important question unanswered. “Aside from acknowledging the importance of scientific evidence, I don't think the document takes us much further forward,” he tells aidsmap.com. When you strip out the guidance as to what the law is, you're not left with very much of a guide as to when the law will be used. The difficult question was always ‘when will the CPS consider it in the public interest to prosecute?’ and that question is left unanswered.”

And defence lawyer, Khurram Arif, of London solicitors, Hodge Jones & Allen, who has successully defended three clients against reckless HIV transmission charges, notes that, although “it is encouraging to see that the guidelines actually specify that scientific and medical evidence should be gathered as part of the investigation,
I think the CPS will always get stuck on the point of causation.”

In addition, both THT and NAT admit they are disappointed with various parts of the guidance. “The CPS are less clear about condom breakage during sex. THT believes it should be an adequate defence, if a condom is found to have broken during sex and HIV transmission occurs as a result, for the defendant to have promptly advised their partner to get PEP. We will be pressing for further clarity on this.”

Yusef Azad, NAT’s Director of Policy and Campaigns, also tells aidsmap that he is disappointed that “there is no definition of what constitutes reckless behaviour in relation to HIV transmission. In some ways this could be a good thing [because] at least we don't have an incorrect or unhelpful definition. But the CPS leave it instead to individual clinicians to advise in each case with a worrying possibility of inconsistent approaches and clinicians simply rehearsing their own ethical opinions rather than providing obejective expert advice.”

Finally, it should be noted that the CPS only become involved once a case has been investigated by the police, and that so far there is no guidance for the police in this area. Khurram Arif points out that in his experience, “I have not come across many [police] officers who are familiar with any CPS guidelines.”

However, both NAT and THT plan to work with the Association of Chief Police Officers to help create a more unified – and better-understood – criminal justice system policy now that the CPS guidance has been published.