Policy background

Since 2001 have been several successful prosecutions for transmission of HIV in Scotland, England and Wales. Until these, it had been assumed that HIV transmission was not a criminal offence under current UK law. 

In the first Scottish case, a Scots-specific offence (that of “reckless injury”) was used, while in England and Wales cases have been brought under the Offences Against the Person Act of 1861.

Intentional versus reckless transmission

In 1998, following consultations, the Home Office issued a White Paper called Violence: reforming the Offences Against the Person Act 1861. Its proposals included a new offence, not specific to HIV, of intentional transmission of a serious disease (similar to Section 18 of the 1861 Act) but not of reckless transmission (in line with Section 20 of the 1861 Act). The Home Office accepted that the latter should not be criminalised, on clear public health grounds, following submissions from organisations including THT.

This was understood to be the official Home Office position, but the White Paper remained a proposal only and was never enacted in law. THT continued to support the proposals to prosecute intentional transmission, but not reckless transmission.

From 2003, the Crown Prosecution Service (CPS) in England appears to have made a policy decision (confirmed by public statements during the first English case) to pursue cases of people charged with both intentional and reckless transmission. Of the two cases originally charged with intentional transmission, both were subsequently reduced to reckless transmission, which is a lesser offence but much easier to prove.

Consultation

The CPS has agreed to undertake a public consultation exercise and to draw up guidance on such prosecutions, and has invited THT and other sexual health organisations to work with it.

THT is also working with the Metropolitan Police, the Home Office and the Department of Health’s Independent Advisory Group on Sexual Health to mitigate the impact of these prosecutions on individual and public health. In addition, we are aiming to improve public understanding of the implications of these cases for people with HIV and other sexually transmitted infections.

We are determined to challenge the stigma and lack of understanding which has surrounded the cases and the issue.

Research

In 2004, THT (in collaboration with the Global Network of People with HIV/AIDS and UNAIDS) collected data for an overview of prosecutions for transmission of HIV. Prosecution patterns vary widely between countries. However, it is clear that in many countries there is a disproportionate number of prosecutions of migrants and from other socially stigmatised groups. Similarly, most prosecutions so far in the UK have been of migrants or people from other socially disadvantaged groups.

In 2004-5, THT did extensive research and consultation on the issue of criminal law and HIV transmission, and it will continue to do so. Our policy is the result of those consultations, and it will continue to evolve in the light of new experience and evidence.

Find out more

Also in this section you can:

• read an overview of our policy on prosecutions
• find out more details about our current policy.