United Kingdom

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UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review

09 Nov 2015
Following a scoping consultation which ran from autumn 2014 to spring 2015, the Law Commission (of England and Wales) has now published its report containing their final recommendations to the UK Government. It recommends the adoption of a modified version … More

UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process

09 Feb 2015
This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair –  will conclude its scoping consultation of the reform the Offences Against The Person Act, the … More

Outrage HIV Justice Film Festival debuts at AIDS 2014 in Melbourne, first ever film festival to focus on HIV criminalisation

30 Jun 2014
In the lead-up to AIDS 2014, ten powerful thought-provoking films from seven countries over three days (18, 19 and 21 July 2014) will outrage Melbourne film-goers by exploring how laws and policies aimed at controlling, punishing or disempowering specific groups … More

UK: Study of people with HIV in Manchester finds legal literacy lacking on criminal prosecutions

17 Jun 2014
People living with HIV in Manchester appear to have little understanding of their rights and responsibilities under English law to avoid prosecution for ‘reckless’ HIV transmission, according to a study presented to the British HIV Association Conference in Liverpool earlier … More

UK: Court of Appeal upholds man’s conviction for recklessly passing on genital herpes during sex with ex-girlfriend

08 May 2014
Today, the Court of Appeal upheld David Golding’s 2011 conviction for ‘recklessly’ infecting his ex-girfriend with genital herpes (HSV-2) during a brief relationship.  However, his original 14 month sentence was reduced to three months (as time served, Mr Golding was … More

Research agenda into the public health impact of overly broad HIV criminalisation highlights five areas where researchers and advocates can collaborate

31 Jan 2014
A newly published report suggests a number of concrete ways that research into the impact of overly broad HIV criminalisation on public health can move the policy agenda forward, and help reform laws and create better policies for people living … More

EATG seeks to ensure that Europe-wide standards of up-to-date scientific evidence limit overly broad HIV criminalisation

28 Oct 2013
EATG’s new position paper on prosecutions for HIV non-disclosure, exposure and/or transmission published last week recommends that the criminal law should only be used in extremely rare and unusual cases where HIV is maliciously and intentionally transmitted and that Europe-wide … More

UK: NAT (National AIDS Trust) produces new guide for police on occupational exposure to HIV

19 Jul 2013
NAT (National AIDS Trust) is calling on all UK police forces to ensure their guidance and policies on HIV are up-to-date – and to use NAT’s new resource ‘HIV: A guide for Police Forces’ for this purpose. “HIV: A guide … More

Video toolkit: How to advocate for prosecutorial guidelines

30 May 2013
New guidance from UNAIDS to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission, recommends that: Countries should develop and implement prosecutorial and police … More

UK: New research calls for better guidance for HIV service providers on criminal law, confidentiality and ethics

07 Mar 2013
Yesterday saw the release of an important new UK study, Keeping Confidence: HIV and the criminal law from service provider perspectives, which explores how HIV criminalisation impacts those who deliver health and social care services for people with HIV. The … More

UK: Updated guidance on HIV transmission, the law and the work of the clinical team now published

11 Feb 2013
The British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have produced updated guidance on HIV Transmission, the Law and the Work of the Clinical Team. This guidance is aimed at those working in the field … More

Video: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

23 Oct 2012
This international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission took place at the Rotes Rathaus in Berlin on 20th September 2012. HIV advocates, law and human rights experts and other concerned … More

Scotland: New guidance on prosecutions clarifies law, recognises treatment’s impact on infectiousness

02 May 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 … More

New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

04 Aug 2011
From UNAIDS front page today.   Feature Story: New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions The UK charity National AIDS Trust (NAT) launched a report on 4 August 2011, entitled Estimating the … More

UK: The return of the “HIV Monster”

27 Jul 2011
The British tabloid press had a field day yesterday following the sentencing of Nkosinati Mabanda, 44, at Wolverhampton Crown Court for ‘reckless’ HIV transmission. He received a four year prison sentence; was also given an anti-social behaviour order (ASBO) ordering … More

Last reviewed 01 June 2017

Country overview

In England, Wales and Northern Ireland, Offences against the Person Act 1861, Section 18: Wounding with intent to do grievous bodily harm and Section 20: Inflicting bodily injury, with or without weapon. The grievous bodily harm law created more than 150 years ago is unsuited to deal with sexual transmission of disease, despite prosecutorial and police guidance limiting the scope of the law.

In Scotland, the crimes relevant to the intentional or reckless transmission of, or exposure to, sexually transmitted infections, are assault and the offence commonly known as “culpable and reckless conduct”.

Specific laws

Specific law enacted No

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: Yes

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 31

27 HIV-related prosecutions, plus one each for hepatitis B and herpes in England, Wales and Northern Ireland. First successful prosecution in 2003. Most recent conviction in 2016. Four prosecutions in Scotland. Table of UK cases. Last updated February 2016. http://www.nat.org.uk/media/Files/Policy/2016/HIV_criminal_prosecutions_table_February2016.pdf

Convictions

Number of convictions 18

15 convictions in England, Wales and Northern Ireland, including one each for hepatitis B and herpes. Three convictions in Scotland Table of UK cases. Last updated February 2016. http://www.nat.org.uk/media/Files/Policy/2016/HIV_criminal_prosecutions_table_February2016.pdf

Laws

Applicable laws

 In England and Wales:

  • Offences Against the Person Act 1861, Section 18: Wounding with intent to do grievous bodily harm and Section 20: Inflicting bodily injury, with or without weapon

In Scotland:  

  • Under Scottish Common Law, the crimes relevant to the intentional or reckless transmission of, or exposure to, sexually transmitted infections, are assault and the offence commonly known as “culpable and reckless conduct'.

Applicable key wording

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: 

The crimes relevant to the intentional or reckless transmission of, or exposure to, sexually transmitted infections, are assault and the offence commonly known as “culpable and reckless conduct”. If there is evidence that an accused person intentionally infected the victim, the appropriate crime is assault. If there is no evidence of intent to cause harm but rather evidence that indicates criminal recklessness, then the appropriate crime is culpable and reckless conduct, which is defined by case law.

Discussion

England and Wales and Northern Ireland

The relevant offences for a prosecutor to consider are under sections 18 and 20 of the Offences against the Person Act 1861.

Section 18: Wounding with intent to do grievous bodily harm: The courts have recognised that person-to-person transmission of a sexual infection that will have serious, perhaps life-threatening, consequences for the infected person's health can amount to grievous bodily harm under the Offences against the Person Act 1861. The consent of the complainant to sexual activity in the knowledge that the defendant is infectious does not amount to a defence for the defendant in cases of intentional infection: R v Donovan [1934] 2 K.B. 498Attorney General's Reference (No. 6 of 1980)[1981] Q.B. 715, CA. Therefore, the transmission of that infection can constitute the offence of inflicting or causing grievous bodily harm, which when intentional can attract a sentence of life imprisonment. If the prosecution can prove that the defendant intended to transmit sexually an infection to a person but failed to do so, a charge of attempting to commit section 18 can be brought.  I

Section 20: Inflicting bodily injury, with or without weapon: A prosecution can only be brought for this offence if transmission has actually taken place. It is not sufficient for a person to be put at risk of being infected by a partner who failed to disclose their medical condition.

It should be noted that courts may only impose a Sexual Offences Prevention Order (SOPO) under sections 104 - 113 of the Sexual Offences Act 2003 where this is necessary to protect the public from future sexual offending. Since inflicting grievous bodily harm is not a sexual offence (in accordance with Schedule 3 of the Sexual Offences Act 2003), it is unlikely that a SOPO will be an appropriate order in a case involving the sexual transmission of infection. 

See Further reading: Crown Prosecution Service (CPS) (2011). Intentional or Reckless Sexual Transmission of Infection Guidance.

The publication of a scoping paper by the Law Commission to decide whether to consider reforming the way sexual transmission of infection is prosecuted in England and Wales provided impetus for a number of HIV-related organisations to respond, requesting that the law be limited only to intentional transmission of a serious infection. See Further reading:

Hiv Justice Network’s response to the law commission’s scoping review of the law in England & Wales that is used to prosecute ‘reckless’ and ‘intentional’ HIV/STI transmission. 11 February 2015.

National AIDS Trust (February 2015). Law Commission scoping consultation paper: reform of offences against the person.  Submission from NAT.

The Law Commission published its findings in November 2015, recommending no change for HIV/STI prosecutions in England & Wales, pending a wider review.

See Further reading:

Law Commission (November 2015). Reform of Offences against the Person: Chapter 6 Transmission Of Disease.

Bernard EJ. UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review. HIV Justice Network, 9 November 2015. 


Scotland

In Scotland, under Common Law, 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). 

On 1 May 2012, the Crown Office and Procurator Fiscal Service (COPFS) published the guidance for Scotland on Intentional or reckless sexual transmission of, 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 its policy and practice with the policy in England and Wales. See Further reading: Crown Office and Procurator Fiscal Service (COPFS) (2012). Prosecution policy on the sexual transmission of infection. Intentional or Reckless Sexual Transmission of, or Exposure to, Infection. V1.2 July 2014

Further reading

Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016. http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf

Latest cases and news can be found at: http://www.hivjustice.net/site/news/?country=229&from-month=-1&from-year=-1&to-month=-1&to-year=-1

Offences against the Person Act 1861.  http://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents

Law Commission (November 2015). Reform of Offences against the Person: Chapter 6 Transmission Of Disease.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/473398/51950_LC_HC555_Web.pdf

Bernard EJ. UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review. HIV Justice Network, 9 November 2015. http://www.hivjustice.net/?p=3560

Hiv Justice Network’s response to the law commission’s scoping review of the law in England & Wales that is used to prosecute ‘reckless’ and ‘intentional’ HIV/STI transmission. 11 February 2015.

http://www.hivjustice.net/hiv-justice-networks-response-to-the-law-commissions-scoping-review-of-the-law-in-england-wales-that-is-used-to-prosecute-reckless-and-intentional-hivsti-transmisison/

NAT (February 2015). Law Commission scoping consultation paper: reform of offences against the person. Submission from NAT.

http://www.nat.org.uk/media/Files/Policy/2015/Law_Commission_OAPA_scoping_NAT_response.pdf

Terrence Higgins Trust, NAT and HIV Scotland (2013). Prosecutions for HIV & STI Transmission or Exposure. A guide for people living with HIV in Scotland. http://www.nat.org.uk/media/Files/Publications/scot tishprosecutions2013.pdf

Crown Office and Procurator Fis cal Service (COPFS) (2012). Prosecution policy on the sexual transmission of infection. Intentional or Reckless Sexual Transmission of, or Exposure to, Infection. V1.2 July 2014. http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_and_Policy/Prosecution%20policy%20on%20the%20sexual%20transmission%20of%20infection%20-%20July%2014.pdf

Crown Prosecution Service (CPS) (2011). Intentional Or Reckless Sexual Transmission Of Infection Guidance. http://www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/

Crown Prosecution Service (CPS) (2011). Policy for prosecuting cases involving the intentional or reckless sexual transmission of infection. Updated 15 July 2011. http://www.cps.gov.uk/publications/prosecution/sti.html

NAT (formerly National AIDS Trust)

·         Criminal prosecutions for HIV transmission, includes Association of Police Officers (ACPO) Guidance. http://www.nat.org.uk/HIV-in-the-UK/Key-Issues/Law-stigma-and-discrimination/Criminal-prosecutions.aspx

·         Table of UK cases. Last updated February 2016.  http://www.nat.org.uk/media/Files/Policy/2016/HIV_criminal_prosecutions_table_February2016.pdf

Terrence Higgins Trust (THT)

·         Views on prosecutions and THT resources: http://www.tht.org.uk/myhiv/Telling-people/Law/Views-on-prosecutions

·         HIV and you. Law (Sex, HIV, Law) http://www.myhiv.org.uk/Telling-people/Law

Cases

Overview

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 are for 'reckless transmission'.

Section 18

No one has been convicted under Section 18, or ‘intentional transmission’:

·         Although two males were initially charged under Section 18 and the charged subsequently dropped to section 20, or ‘reckless transmission’.

·         Another male was charged both with intentional and reckless transmission with the former charge dropped and the latter dismissed.

·         Still another male was convicted for a section 18 offence, intentional GBH, but this was a physical assault on a separate person and unrelated to the HIV transmission charge.

 

Section 20

In England and Wales it is not possible to be charged under S.20 for exposure where there has been no transmission of an STI. When a partner knows the person has HIV or the relevant STI and consents to the sexual activity no crime is committed.

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.

It is possible to be charged with attempting to intentionally transmit a serious sexual infection under the Criminal Attempts Act 1981. There have so far been no cases.

 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 R v Dica [2004] EWCA Crim 1103 and R v Konzani [2006] Part 4 Case 9 [CAEW]) 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.

 

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.

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017