Introduction to the legislation

In the United Kingdom, prosecutions for HIV transmission have taken place under existing assault laws since 2001. These are similar for England, Wales and Northern Ireland; Scotland has completely different laws. The first prosecution took place in Scotland in 2001, followed by England (2003) and Wales (2005). There have been no prosecutions to date in Northern Ireland.

There is no legislation that specifically criminalises reckless or intentional HIV transmission in England and Wales. The criminal law was first used in 2003 in England to find an individual culpable for reckless HIV transmission under the Offences Against the Person Act 1861 (OAPA 1861).

You may be prosecuted and found guilty of reckless HIV transmission if all of the following apply:

• You knew you had HIV
• You understood how HIV is transmitted and that you might be infectious
• You had sex with someone who didn’t know you had HIV 
• You had sex without a condom
• You are the only the person who could have transmitted HIV to that person.

Two sections of the OAPA 1861 relating to ‘grievous bodily harm’ can be used to prosecute HIV transmission: Section 18, 'intentional transmission' and Section 20, 'reckless transmission'.

Section 18 – Wounding with intent to do grievous bodily harm ('intentional transmission') reads: “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, shall be guilty of an offence, and being convicted thereof shall be liable...to imprisonment for life.”¹ The maximum sentence is life imprisonment; there is no minimum sentence.

Section 20 – Inflicting bodily injury, with or without weapon ('reckless transmission') reads: “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 be kept in penal servitude…."² The maximum prison sentence is five years for each person someone is found guilty of infecting. There is no minimum sentence. The judge may recommend that non-UK residents are deported after completing their sentence. 

So far, all prosecutions that have reached the courts were for 'reckless transmission'. Although some individuals were initially charged under Section 18 (‘intentional transmission’), to date there have been no successful prosecutions for either ‘intentional transmission’ or ‘attempted intentional transmission'. This is primarily because proving that someone intended to sexually transmit HIV is extremely difficult.

To date, 19 'reckless transmission' prosecutions have gone to trial in the English courts (plus one prosecution in Wales and none so far in Northern Ireland). However, many more individuals – possibly hundreds – have been arrested and investigated.³ These investigations have had a serious impact on the lives of the accused and complainants. Some investigations that did not reach the courts lasted more than a year. Most cases were only dropped by the Crown Prosecution Service (CPS) once it became clear that they did not have enough evidence to show that the complainant(s) could have only been infected by the defendant.⁴ 

Of the 20 England and Wales cases that reached the courts:

• all but two of the people charged were male;
• all but three were charged in relation to heterosexual transmission;
• the majority of defendants were British-born nationals;
• thirteen individuals pleaded guilty;
• of the seven 'not guilty' pleas, four resulted in acquittals;
• the longest prison sentence was for ten years (four, three and three years, to run concurrently, for three complainants);
• sentences for 'reckless HIV transmission' to one complainant have ranged from between one year and four years and six months.⁵

There is no such charge as 'attempted reckless transmission’: therefore recklessly exposing someone to the risk of HIV infection is not a crime. However, a malicious attempt to transmit HIV could be charged as 'attempted intentional transmission'. 

There have been no prosecutions for the transmission of HIV through means other than sex – e.g. via sharing of drug injecting equipment or vertical transmission (transmission from a mother to her baby during pregnancy, birth or breastfeeding).

Following conviction, Sexual Offences Prevention Orders (SOPO), governed by the Sexual Offences Act 2003, “for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant” and mandating disclosure of known HIV-positive status have twice been imposed by the courts. In a third case an Anti-Social Behaviour Order (ASBO) was imposed. These are the only people in England and Wales legally required to disclose their HIV status before having sex.⁵

Following sexual assault, the transmission of HIV can be taken into account as an additional aggravating factor for sentencing purposes.

The OAPA 1861 applies in Northern Ireland (where the maximum prison sentence for Section 20 – 'reckless transmission' – is seven years). There have been no prosecutions to date. Northern Ireland has its own Public Prosecution Service (PPS). It is unclear whether the Crown Prosecution Service (CPS) policy and guidance on the intentional or reckless sexual transmission of infection produced for England and Wales would be followed in the province. However, the Association of Chief Police Officers (ACPO) ‘Investigation Guidance relating to the Criminal Transmission of HIV’ covers police practice in Northern Ireland (see Police Investigations).

There is no legislation that specifically criminalises reckless or intentional HIV exposure or transmission in Scotland. The criminal law was first used in 2001 to find an individual criminally responsible for HIV transmission under the Scottish common law offence of ‘culpable and reckless conduct’.

Scottish law focuses on behaviour (unlike English and Welsh law which focuses on the harm that results from such behaviour): thus exposing others to the risk of HIV transmission ('HIV exposure') can be prosecuted.

Both reckless HIV exposure and transmission have been prosecuted in Scotland. In legal terms, exposure is ‘reckless endangerment’ and transmission is ‘reckless injury’.

If there is evidence that the accused acted with malicious intent, the appropriate crime is assault, although there have been no prosecutions for intentional HIV exposure or transmission to date.

Four charges of ‘culpable and reckless conduct’ 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, who was deemed mentally incapable of standing trial, was detained indefinitely in a psychiatric facility.⁵