Background to prosecution and the law

You may have heard or read about prosecutions for HIV transmission in England, Scotland and Wales. Some people have been found guilty and sent to prison.

For people with HIV this can raise a number of questions. This area hopes to explain the law in as straightforward a way as possible. It answers some of the most common questions and concerns you may have. It is not a substitute for expert legal advice. If you are involved in a prosecution, particularly if you are being prosecuted, it’s extremely important to get expert legal advice. Call THT Direct for a referral.

Prosecutions have happened, not just for HIV but also for sexual transmission of other infections - for example hepatitis B and C. This advice focuses on HIV, which is still the subject of nearly all investigations and prosecutions. However, much of the advice applies equally to other sexually transmitted infections.

Terrence Higgins Trust doesn’t think it’s useful to prosecute people for any transmission that’s not intentional. However, we aim to provide an objective account of the law and we give advice based on that. We have helped many people on all sides of cases to negotiate their way through complex situations and get emotional support. We’re here for everyone who has HIV or STIs, or who is at risk of getting them.

The law is different in Scotland from that in England and Wales, but prosecutions have happened in all three countries. However, in most cases much of the process is similar. Where things differ we will make that clear. For example, in England and Wales you can only be prosecuted if you have actually passed on HIV. In Scotland, you can also be prosecuted for putting someone at risk through unprotected sex.

The other key difference is that in England and Wales, there is clear guidance from both the Association of Chief Police Officers (ACPO) and from the Crown Prosecution Service (CPS) as to when prosecutions can take place and how they should be managed.

In Scotland, there is new guidance in 2012 from the Crown Office and Procurator Fiscal Service (COPFS)but not yet from the police. THT is working with others to clarify this and interpret the guidance for the general public. Read the COPFS policy.

The information in these web pages was correct at the time of writing. The legal situation around transmission of HIV is evolving with each court case and information should be checked for accuracy in light of recent developments.

Terrence Higgins Trust and the National Aids Trust (NAT) have produced a Guide to Prosecutions for HIV Transmission.

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