United Kingdom of Great Britain and Northern Ireland

Last updated on: 6 February 2014

Criminalisation of HIV transmission/exposure

United Kingdom of Great Britain and Northern Ireland
Whether Specific law enacted: 
No
Number of people prosecuted: 
25
Number of people convicted: 
17, 1 finding unknown
Applicable law: 

 In England and Wales:

  • Offences Against the Person Act 1861, Sections 18 and 20.

In Scotland:  

  • In Scotland, the charge is culpable and reckless conduct: "If you know that you have HIV, you know that it can be transmitted through sexual intercourse and that it is obviously damaging to the health of the person who catches it and you have unprotected sex, that alone is reckless, which would make it culpable" according to Donald Findlay QC (Queens Counsel). NB: New Guidance on Prosecutions Clarifies Law, Recognises Treatment’s Impact on Infectiousness. May 2, 2012. On May 1st, the Crown Office and Procurator Fiscal Service (COPFS) published their Guidance for Scotland on ‘Intentional or Reckless Sexual Transmission, or Exposure to, Infection‘. According to COPFS, the policy aims to “provide guidance to prosecutors but also provide clarity and consistency about this area of the law.” Scotland is only the second jurisdiction in the world that uses general criminal law for (mostly) HIV-related prosecutions to produce such guidance. They were a direct result of the Crown Prosecution Service (CPS) for England and Wales’ policy and guidance, first published in March 2008 and updated in July 2011.  In fact, the COPFS guidance specifically states that where possible, COPFS has sought to reconcile our policy and practice with the policy in England and Wales.
Key wording in the law: 

In England & Wales:

Section 18: Wounding with intent to do grievous bodily harm

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person ...with intent, ... to do some ... grievous bodily harm to any person, [or with intent to resist or prevent the lawful apprehension or detainer of any person,] shall be guilty of an offence, and being convicted thereof shall be liable ... to imprisonment for life.

Section 20: Inflicting bodily injury, with or without weapon

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable ... to imprisonment ... for not more than five years.

In Scotland:

'Culpable and reckless conduct'

Key Cases: 

2012 Case: England, United Kingdom, Alleged transmission Heterosexual men Prosecutions Newcastle Crown Court ‘reckless’ transmission prosecution coverage:

  • Leslie Pringle sought death in River Tyne October 17, 2012
  • Alleged victim of Leslie Pringle tells of HIV test shock October 17, 2012
  • North Shields photographer infected woman with HIV, court told October 17, 2012
Discussion: 

England & Wales

Whilst it is also possible to be charged with 'attempted intentional transmission', there is no such charge as 'attempted reckless transmission’. So far, all prosecutions that have reached the courts were for 'reckless transmission'.

Policy and prosecutorial guidelines produced by the Crown Prosecution Service in 2008 (and updated in 2010 and 2011) have clarified some of the uncertainties created by two Appeal Court judgements (see Key cases) regarding under which circumstances people living with HIV could be charged for 'reckless' grievous bodily harm. Evidential issues – notably difficulties proving that the accused infected the complainant(s) and which have resulted in many cases being dropped and at least four individuals being acquitted – are highlighted in the CPS documents.

In addition, the Association of Chief Police Officers (ACPO) have produced 'ACPO Investigation Guidance relating to the Criminal Transmission of HIV'.

As of April 2012 there have been 20 prosecutions in England and Wales of which 14 were found or pleaded guilty; and 6 were acquitted after either being found not guilty or having the case dropped due to lack of evidence.

Prosecutions have also succeeded under the same law for 'reckless' hepatitis B transmission (Gloucester, Nov 2008) and herpes transmission (Northampton, Aug 2011), although the latter is currently being appealed.

Scotland

In Scotland alleged HIV exposure as well as alleged transmission can be prosecuted. It remains unclear whether disclosure in the absence of condoms is a legitimate defence to accusations of 'culpable and reckless conduct’. Scots law does not recognise consent as a defence to an assault charge, and in the absence of an HIV transmission case in Scotland where consent has been used as a defence, it is unclear whether the law would take a similar approach to reckless conduct cases. However, it was recently clarified that the use of a condom in the absence of disclosure would be a defence even if transmission subsequently occurred.

Four cases have reached the Scottish courts. Of the three men found guilty, the first was sentenced to five years; the second (also convicted of sexually transmitting hepatitis C) to nine years; and the third (also convicted on three counts of HIV exposure) to ten years in prison. A fourth man was deemed mentally incapable of standing trial and has been detained indefinitely in a psychiatric facility.

A fifth case is not included in the totals. In October 2011, an HIV-positive couple were charged for alleged HIV exposure due to biting, spitting and scratching arresting police officers. By their sentencing in December 2011, the HIV-related charges had been dropped but they still received lengthy sentences (2 years and 19 months, respectively) for breach of the peace and assault charges.

Survey respondents/Organisations working on HIV and the Law: 

National AIDS Trust, London, United Kingdom: Yusef Azad: yusef.azad@nat.org.uk

HIV Scotland, Edinburgh, United Kingdom: Roy Kilpatrick: roy.kilpatrick@hivscotland.com

Terrence Higgins Trust, London, United Kingdom, provide practical help and advice to individuals facing prosecution, and those otherwise involved with these issue within the criminal justice system, as well as working with legislators and policy makers. Contact: Lisa Power: Lisa.power@tht.org.uk

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are no specific entry or residence regulations for people with HIV/AIDS. Neither a medical certificate nor an HIV test result is required when entering the country. Foreigners with a known HIV infection are not subject to specific residence regulations. There are no regulations regarding the control, deportation or expulsion of those concerned.

In certain circumstances, TB-related health checks are performed at entry ports. People found ill are then directed to treatment.

ARVs can be imported to the UK if a doctor’s prescription is carried. 

People discovered to be HIV-positive are not deported from the UK, but neither is HIV a reason for receiving asylum. 

For updated information, please go to: www.hivrestrictions.org.

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships:  No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Equal/almost equal substitute nationally recognized

For updated information, please go to: http://ilga.org.

Laws relating to injecting drug use: 

Not known

Protective laws and policies for people living with HIV: 

Yes