Intentional or Reckless Sexual Transmission of Infection
- Internal Procedures
- Relevant Offences
- General Propositions
- Reckless Transmission: Section 20 Offences Against the Person Act 1861
- Evidential Issues
- Attempt to Commit Section 20 Grievous Bodily Harm
- Intentional Transmission: Section 18 Offences Against the Person Act 1861
- Sexual Transmission of an Infection as an Aggravating Feature of Another Sexual Offence
- Public Interest Issues
- Complainant and Witness Care Issues
- Ancillary Orders
- ACPO Guidance
This guidance sets out how prosecutors should deal with cases where there is an allegation that the suspect/defendant has passed an infection to the complainant during the course of consensual sexual activity. It excludes other methods of transmission, such as shared needle usage.
Prosecutors will appreciate that this area of the criminal law is exceptionally complex.
The criminality of this offending lies in the mens rea. This means that the relevant offences will be difficult to prove to the requisite high standard, to satisfy the evidential stage of the Code test and in the court itself.
There are other sensitivities: the relationship between the criminal law and consensual sexual behaviour is delicate. The use of the criminal law in the most intimate of physical exchanges is always going to attract publicity and will invite strongly held and differing views.
The role of the prosecutor, however, is clear: it is to apply the criminal law and prosecute individuals where the two stage test set out in the Code for Crown Prosecutors is satisfied.
In this guidance, the term "suspect" is used to describe a person who is not yet the subject of formal criminal proceedings and the term "defendant" is used to describe a person who has been charged or summonsed.
These offences are highly sensitive. To ensure consistency of approach, details of all cases (see below for information to be supplied) in which charges of intentional or reckless sexual transmission of infection are being considered must be sent to the Director's Principal Legal Advisor (PLA). This is in order to allow the PLA to oversee charging decisions being made in these cases and to provide advice in appropriate cases. Accordingly, the PLA must be notified prior to any decision being communicated to the police.
For the avoidance of doubt, details of all cases referred by the police which are not thought to pass the Full Code Test must also be sent to the PLA (before the decision is communicated), as well as those where it is intended to authorise charge.
Referrals to the PLA must either be through Heads of Complex Casework Units (CCU), Chief Crown Prosecutors (CCP) or Deputy Chief Crown Prosecutors (DCCP). The following must be sent with the case details:
- a synopsis of the evidence prepared by the reviewing lawyer, including an outline of the relevant legal considerations and the application of this policy to the facts of the case
- a copy of the MG3
- an endorsement of the proposed course of action from the CCU Head, CCP or DCCP through whom the referral to the PLA is being made.
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: R v Dica  2 Cr. App. R. 28. 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.
The relevant offences for a prosecutor to consider are under sections 18 and 20 of the Offences against the Person Act 1861.
The application of the law in this area is not related to any particular characteristic of the suspect/defendant or the complainant. The sexual transmission of infections can take place between a man and a woman, between two men and between two women. The infection may pass from either person engaging in sexual activity and it is wrong to think that it can only be passed from the so-called active person to the so-called passive person.
Sexually transmitted infections (STIs) may be bacterial or viral; the means by which infections are transmitted vary. Some sexually transmitted infections may be passed through semen, or blood, or saliva, or a combination of all of these. There may be different rates of likely infection depending on the characteristics of the particular infection and on the medium by which it is transmitted.
It follows therefore that an infection may be passed without the two people engaging in full sexual intercourse. Indeed, some infections are transmitted in other ways entirely. Prosecutors will need to have a clear understanding of the mediums by which and of the ways in which any particular infection can be passed when considering the evidence required to prove how the infection was in fact transmitted - and therefore whether it was passed by the suspect.
Prosecutors will also need to pay detailed attention to the totality of the evidence available to them when deciding whether there is sufficient evidence to prosecute. As the grievous bodily harm cannot be seen in the same way as, for example, a stab wound, it is inevitable that detailed scientific and/or medical evidence will need to be adduced at any trial. The nature of this scientific and/or medical evidence will be dependant on the type of sexually transmitted infection.
However, scientific and/or medical evidence will only ever form part of the case against the defendant. We must build up a strong factual case around the scientific and/or medical evidence in order to satisfy the evidential stage of the Code test. This is because scientific and/or medical evidence of this nature is not as precise as, for example, evidence of DNA matches.
The nature of the evidence will depend on the type of infection. Guidance on the weight and nature of the evidence required to be adduced by the prosecution is set out below.
Reckless Transmission: Section 20 Offences against the Person Act 1861
Recklessness in this context means that a defendant foresaw that the complainant might contract the infection via unprotected sexual activity but still went on to take that risk. Once the prosecutor is satisfied that the suspect had foreseen the risk of infection, the reasonableness of taking such a risk must be considered. Reasonableness is dependant upon the circumstances known to that person at the time he or she decided to take the risk.
Prosecutors should ensure that in those cases where sexual intercourse between the suspect and the complainant is restricted to occasions few in number, they are satisfied that, taking all the circumstances together, the necessary recklessness of the suspect has been established to the required standard. Relevant to recklessness is the level of risk of transmission and this can vary based on the number of exposures and the nature and status of the infection. One exposure to a highly infectious condition could be regarded as being reckless; conversely, for a condition where there is a low risk of transmission, the level of recklessness increases with the number of exposures since this will increase the possibility of transmission.
Prosecutors should never proceed to trial in a case involving an allegation contrary to section 20 unless there is scientific and/or medical and factual evidence which proves the contention that the defendant recklessly and actually transmitted the infection to the complainant. The mere fact that the suspect says that he or she did and that he or she did so recklessly is not sufficient, on its own, to meet the evidential stage of the Code test. There has to be other factual evidence to demonstrate that the suspect's account is at least compatible with the other evidence available.
Where there is sufficient evidence to the required standard and an informed plea by the defendant who admits recklessly infecting the complainant, a plea to section 20 may be accepted, subject to the public interest stage of the Code test also being satisfied. The term informed plea refers to a plea from a defendant based on their knowledge of a diagnosis with a sexual infection (taken together with the scientific, medical and factual evidence in the case, details of which the defendant will have been provided with prior to being invited to enter a plea). Whilst a defendant may know the contents of his or her medical records (that they had been diagnosed as HIV+ for example), they could not be expected to know more complex information such as what strain of infection they had or their level of infectiousness at any given time.
The informed consent of the complainant to the assumption of risk of infection by engaging in sexual activity with a person who is infectious - in cases where the defendant cannot be shown to intend to pass on the infection - is a defence available to the defendant in cases of section 20 grievous bodily harm: R v Dica.
Informed consent does not necessarily mean that the suspect must disclose his or her condition to the complainant. A complainant may be regarded as being informed for the purposes of giving consent where a third party informs the complainant of the suspect's condition, and the complainant then engages in unprotected sexual activity with the suspect. Similarly, a complainant may be regarded as being informed if he/she becomes aware of certain circumstances that indicate that the suspect is suffering from a sexually transmitted infection, such as visiting the suspect while he or she is undergoing treatment for the infection in hospital, or the appearance of sores on the suspect's genitalia.
Whether the complainant gave his or her informed consent is a matter for the jury.
R v Konzani (2005) EWCA Crim 706 considered the issue of consent. The trial judge had directed the jury on this aspect by stating that the jury had to be sure that the complainants in the case did not willingly consent to the risk of suffering that infection. He returned to the clear and important distinction between running a risk on the one hand and consenting to run that risk on the other, pointing out that the prosecution had to establish that the complainants "did not willingly consent to the risk of suffering the infection in the sense of ... having consciously thought about it at the time and decided to run it." He repeated that for the purposes of his direction, "willingly" meant "consciously". The Court of Appeal endorsed the trial judge's directions to the jury, stating that he had sufficiently explained the proper implications of the consensual participation by each of the complainants to sexual intercourse with the appellant.
In cases under section 18 and section 20 of the Offences against the Person Act 1861, the prosecutor must be satisfied that there is sufficient evidence to satisfy the evidential stage of the Code test.
Scientific and/or Medical Evidence
Ideally both scientific and medical evidence should be relied upon but depending upon the facts of the case, there may not always be the need for both to be adduced. Scientific/ medical evidence can exist in a number of forms, and the precise nature of any such evidence that is gathered will depend to some degree on the nature of the infection in question and the overall facts of the case. Each case must be considered on its own facts and on its own merits.
Medical evidence is likely to include clinical records, namely information contained in the medical records of the suspect. This will include (but is not limited to) evidence of symptoms (either reported by the suspect and/or observed by a medical professional); treatment; degree of infectiousness at particular periods which may in some cases be relevant; confirmation of diagnosis or likely diagnosis; and the results of any medical tests ordered as part of the suspect's treatment.
There may be an overlap between what is considered to be medical evidence and what is scientific evidence. For example, scientific evidence may include the results of any scientific analysis (such as the results of a blood test to determine whether the suspect suffers from a particular condition). In relation to some medical conditions, it may be possible to determine whether a suspect has a particular strain or type of infection. The results of any such tests would be scientific evidence
The first issue to be addressed is the need for scientific and/or medical evidence. In the case of some infections, the scientific and/or medical evidence can demonstrate with certainty that the suspect did not infect the complainant because the two people concerned have different strains of the infection. In particular, for a virus such as HIV, phylogenetic analysis can exclude the possibility of transmission between two persons where there is no relevant match between the two samples. However, scientific and/or medical evidence cannot prove that the suspect did infect the complainant. In such circumstances, at best, any match would simply show that it is possible that the suspect passed on the infection to the complainant. Phylogenetic analysis may also demonstrate that the strain of the infection in the complainant is consistent with the strain in the suspect. Additional factual evidence is essential to make the case that the suspect was in fact responsible for the complainant's infection. Phylogenetic or medical evidence alone is insufficient.
Prosecutors should also bear in mind that there may be varying degrees of infectiousness during the cycle of infection and during any anti-retroviral therapy. Therefore the scientific evidence is extremely helpful here and it should also include specific information on the degree of infectiousness of the suspect at the time of the alleged offence. Prosecutors should consider the need for scientific evidence namely clinical and epidemiological evidence regarding duration of infection, the possible incubation period of the infection and a strong likelihood that the suspect infected the complainant as opposed to any possibility that the complainant may have infected the suspect. The proximity of the strain(s) of infection in the complainant and suspect and the extent to which the scientific evidence supports other factual evidence in terms of when the infection was allegedly passed will be critical in helping to determine the weight that may be placed on the scientific evidence.
In the case of HIV transmission, new tests, known as RITA (Recent Infection Testing Algorithm) tests, are sometimes being used to assess rates of recent infection in the population, and it is possible that a RITA test result for an individual sample might be offered as evidence of the timing of infection. These tests are sometimes also known as STARHS (Serological Testing Algorithm for Recent HIV Seroconversion) tests. Prosecutors should be aware that there are limitations on the reliability of such evidence at an individual level and any claim of evidence of recency of infection should be referred to any prosecution expert witness.
Prosecutors will always have in their minds the fact that the scientific evidence will only be evidence of the fact of infection - not of the identity of the person who infected. Prosecutors will need to discuss with their expert witness all the ramifications of their findings and have clearly in their minds exactly how far they are able to rely on the scientific and/or medical evidence to support their case against the defendant and what additional factual evidence is necessary to satisfy the evidential stage of the Code.
As an example, a complainant may have had no sexual partners other than the suspect and be able to confirm that he/she has never had a blood transfusion or infected themselves with shared needles. The suspect may have admitted to having a sexually transmitted infection and consented to the provision of a blood sample. Medical evidence establishing that the complainant had a sexually transmitted infection of a similar type to that of the suspect's may mean that a prosecution could proceed in the absence of scientific evidence.
A further example may be where the suspect refuses to consent to the provision of a blood sample, but medical records show that both the suspect and the complainant have the same strain or type of infection. A prosecution may still be able to proceed in the absence of scientific evidence where factually other possible sources of infection of the complainant can be ruled out.
However, to reiterate, as scientific and/or medical evidence alone may be insufficient to satisfy the evidential stage of the Code, it is clear that, before a prosecution may be started, strong factual evidence is also needed.
Non-cooperation by the Suspect
In the event that the suspect declines to provide a blood sample, section 62(10) of the Police and Criminal Evidence Act 1984 may be relied upon. This states that where the appropriate consent to the taking of an intimate sample from a person is refused without good cause the court or jury "may draw such inferences from the refusal as appear proper." The weight that can be given to any such inference will naturally depend on all the circumstances of the case. Prosecutors must note that inference alone is not sufficient evidence upon which a charge should be based and there must be in existence other compelling supporting evidence. Furthermore, it cannot be inferred from the mere fact that the suspect has failed to provide a blood sample that the suspect has a sexually transmitted infection and/or that he/she knew about it.
In the absence of the suspect allowing voluntary access to his or her medical records, there is no power, prior to charge, that allows for the provision of confidential material to the police or to the courts, even where the records may be relevant to the investigation of a serious crime. The case of R v Central Criminal Court ex parte Brown (TLR 7 September 1992) dealt specifically with this issue. It was held that a judge does not have the power under section 9 and Schedule 1 of Police and Criminal Evidence Act 1984 to order production of a medical report by the administrator of a hospital.
However, it may be that in some circumstances the evidence in relation to the medical diagnosis of the suspect can be sought from the suspect's doctor before charge. This is where the doctor considers it justifiable in the public interest to disclose the information voluntarily, without the suspect's consent, as outlined in the General Medical Council's Confidentiality Guidance. Where this is not the case, the evidence can be obtained after the suspect is charged.
In cases where the factual evidence is very strong, with the approval of the Principal Legal Advisor, charge may be authorised on the basis of the factual evidence alone. The Full Code Test will be considered to be met in these exceptional cases based on the factual evidence and the adverse inference that can be drawn from the suspect's failure to provide a blood sample.
Such cases must be kept carefully under review, and it will be necessary to apply for a witness summons to obtain the suspect's medical records as soon as possible after charge. In such cases no trial will proceed on the basis of factual evidence alone save in exceptional circumstances. Furthermore, defendants should not be invited to plead guilty before such formal medical confirmation is obtained as we should be seeking to proceed with prosecutions where the scientific and/or medical evidence is supported by the factual evidence in the case. Whilst there may be circumstances where it is not possible to obtain scientific evidence after charge, for example, where no blood sample exists and the defendant does not consent to providing a sample, it should still be possible to obtain supporting medical evidence. This may relate to dates of diagnosis, evidence around symptoms, timing of infection, etc. Accordingly, it should only be in exceptional cases that the prosecution accept an informed plea in a case that has been charged solely on the basis of strong factual information. The term informed plea is explained in paragraph 18 of this guidance.
Where necessary, a witness summons can be applied for in the magistrates' court pursuant to section 97A of the Magistrates' Courts Act 1980 whereby a justice of the peace must be satisfied that:
- any person in England and Wales is likely to be able to make on behalf of the prosecutor a written statement containing material evidence for the purposes of proceedings before a magistrates' court inquiring into an offence as examining justices, and
- it is in the interests of justice to issue a summons under this section to secure the attendance of that person to give evidence or to produce the document or other exhibit.
In the Crown Court, a summons may be obtained pursuant to section 2 Criminal Procedure (Attendance of Witnesses) Act 1965 which provides that:
"This section applies where the Crown Court is satisfied that:
- a person is likely to be able to give evidence likely to be material evidence or produce any document or thing likely to be material evidence, for the purpose of any criminal procedures before the Crown Court; and
- it is in the interests of justice to issue a summons under this section to secure the attendance of that person to give evidence or to produce the document or thing."
An application must be made as soon as is reasonably practicable after the case has been committed or sent for trial and all applications must be made in accordance with Part 28 of the Criminal Procedure Rules. However prosecutors must not authorise charge simply to bring the case to the stage at which they can seek to secure access to the medical records of the defendant: the factual evidence must be sufficiently strong that, combined with the adverse inference from the failure to provide a sample, the test for charge is met.
Prosecutors will be alert to the need to proceed most carefully here. The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the suspect or defendant. This means that the prosecutor will need to know about any factual possibility which is compatible with the scientific and/or medical evidence that points to the complainant having been infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant. This is extremely sensitive and prosecutors must take enormous care to ensure that the complainant is treated with respect and dignity and is not made to feel any more victimised than they are likely to already. Complainants will need to be made aware of the need to rule out the possibility that he/she became infected in a different way or by a person other than whom he/she alleges. Not to rule out such a possibility will mean that there will be insufficient evidence to proceed.
Prosecutors must ensure that expert evidence is sought at an early stage in order to determine the likelihood of transmission in any given case, and the possibility of alternative sources of infection, in order to minimise unnecessary and protracted investigations and distress to all parties concerned. In particular, prosecutors must be fully aware of the ways in which the particular infection can be passed between two people.
Once a prosecutor is satisfied that he/she is in possession of sufficient factual evidence to show that the suspect is responsible for passing on the relevant infection and (where available for the decision as to charge) that the scientific and/or medical evidence is compatible with the allegation, he/she will need to move on to consider the way in which the element of recklessness may be proved.
In this regard, prosecutors will look for evidence that the suspect knew that he/she had a sexually transmissible infection and were potentially infectious to others if they engaged in unprotected sexual activity. Knowledge is a matter for the prosecution to prove to the criminal standard of proof and for the jury to decide. Evidence will have to be called and the best, and usual, evidence will be medical diagnosis, that is evidence to prove that the suspect had been tested and had been told of his/her infection and advised about ways of reducing the risk of transmission to others, and that he or she had understood such advice. But it is possible that, on rare occasions, a person can know that he or she is infected without undergoing the necessary medical tests. This will depend on all the circumstances and will be a matter for the jury to decide. Those who choose not to be tested will not necessarily avoid prosecution for the reckless transmission of a sexually transmissible infection if all the circumstances point to the fact that they knew that they were infected.
A deliberate closing of the mind by not undergoing testing may be a factor that a jury can take into account when deciding the question of the defendant's knowledge. Such evidence might be confirmation that the defendant has had a preliminary diagnosis from a clinician who has recommended that they have a formal confirmatory test for presence of the sexual infection but the defendant has failed to act on that recommendation; it might be evidence that the defendant is exhibiting clear symptoms associated with the sexual infection from which it is reasonable for the prosecution to infer that they must know that they have it; it might be evidence that one of their previous sexual partners has since been diagnosed with a sexually transmitted infection in circumstances which the defendant knows that this means that it is only he or she who is likely to have infected their sexual partner. Any of these factual circumstances may be sufficient to allow the prosecution and eventually the court to decide that the defendant did have the required degree of knowledge that should have led them not to take the risk of infecting another person. However, it will only be in exceptional cases that the Crown will be able to rely on a deliberate closing of the mind as proof of knowledge.
Safeguards against Transmitting Infection
Prosecutors will need to be aware that proof of knowledge is likely to be difficult. Even in cases where the suspect can be shown to have been told that they carry an infection, prosecutors will need further evidence to show that the suspect understood that he or she too was infectious to other people. Prosecutors will need to have a thorough understanding of the means by which people can protect themselves either from passing on an infection during sexual activity or from being infected during sexual activity.
Prosecutors will also want to bear in mind that people who are informed that they have an infection which may possibly be life-shortening are likely to be in a state of shock at that time, and any further information that is given at the same time may be unlikely to have registered fully with the suspect. In such cases, prosecutors will need to be satisfied that the suspect really did understand that he/she was infectious to other people, and how the particular infection concerned could be transmitted.
Prosecutors will need to ensure that their expert fully addresses these issues in their statement and in conference. Different considerations apply depending on the nature of the infection involved and prosecutors must be alert to the different forms of safeguards and any differing medical advice that may have been given to the infectious and the previously uninfected person (complainant) regarding their use during their sexual activity.
Whilst in consensual sexual activity, public health considerations demand that it is the responsibility of both individuals to ensure safeguards are taken to mitigate the risk of transmitting infection. Ultimately it is the responsibility of the person who is infectious to ensure that those safeguards are taken and, so far as they are aware, remain operative throughout the entire period of sexual activity when it remains a possibility that their infection might be transmitted.
Evidence that the suspect took appropriate safeguards to prevent the transmission of their infection throughout the entire period of sexual activity, and evidence that those safeguards satisfy medical experts as reasonable in light of the nature of the infection, will mean that it will be highly unlikely that the prosecution will be able to demonstrate that the suspect was reckless.
Where someone who is HIV+ is receiving treatment, one of the effects is a reduction of the amount of the virus in their system (in some cases this may result in an undetectable viral load). In these circumstances, the prospect of the infection being transmitted to another is potentially significantly reduced. It may be argued that taking medication may, in some circumstances, be as effective a safeguard as, for example, the use of a condom in reducing risk and therefore negating recklessness. Prosecutors should take great care with such cases however, as medical opinion on the reduction of the risk of infection is not settled, and evidence of the actual taking of medication in accordance with medical instructions may not be as clear-cut as evidence of the use of other safeguards such as condoms.
Although infection can occur even where reasonable and appropriate safeguards have been taken, it is also of course possible that the infection took place because the safeguards and/or their usage or application were inappropriate. However, prosecutors will need to take into account what the suspect considered to be the adequacy and appropriateness of the safeguards adopted; only where it can be shown that the suspect knew that such safeguards were inappropriate will it be likely that the prosecution would be able to prove recklessness.
The extent to which safeguards remain effective during sexual activity will need to be considered by the prosecutor if the issue arises as a matter of fact. Clearly, the issue of recklessness only arises in circumstances where the suspect has not informed the complainant of his/her infectious status. When the safeguards cease to be operative, it is for the suspect to disclose his/her infectious status to the complainant, so that he or she can choose whether to assume the risk [R v Dica] and thereby provide a defence to the suspect.
Each case however will have to be considered on its merits, and prosecutors will need to take a reasonable and practical view about the extent to which recklessness remains provable in circumstances where the suspect took appropriate safeguards which in the event proved to become inoperative during sexual activity.
It may be relevant for the police to make an approach to the suspect's consultant in order to rebut the suspect's assertion that he or she was not informed of the risks of passing on the STI. Such evidence will need to refer to the terms of the advice provided and the level of understanding of the suspect. Where a consultant or professional does not consider it to be in the public interest to override patient confidentiality and provide a voluntary statement to this effect (such as in the circumstances referred to earlier), prosecutors may wish to consider an application for summons or warrant to secure his or her attendance at the magistrates' court during the committal proceedings.
Attempt to Commit Section 20 Grievous Bodily Harm
It is not possible to attempt to commit an offence contrary to section 20 Offences against the Person Act 1861. Therefore, a prosecution cannot be brought for this offence unless 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.
Intentional Transmission: Section 18 Offences against the Person Act 1861
The deliberate infliction of grievous bodily harm by one person on another is one of the most serious crimes under the law.
Consequently, where the evidential stage of the test set out in the Code is satisfied, it is likely that the public interest will require a prosecution.
However, prosecutors should never proceed to trial in a case in which a defendant is charged contrary to section 18 unless there is scientific and/or medical and factual evidence which proves the contention that the defendant intentionally and actually transmitted the infection to the complainant. The mere fact that the suspect or defendant says that he/she did and that he/she intended so to do is not sufficient on its own to meet the evidential stage in the Code test. There has to be other evidence to demonstrate that the suspect or defendant's account is at least compatible with the contention that he/she intentionally infected the complainant.
Where there is sufficient evidence to the required standard and an informed plea by the defendant who admits intentionally seeking to infect the complainant, a plea to section 18 may be accepted, subject to the public interest stage of the Code test also being satisfied. (See paragraph 18 in this guidance for the meaning of the term 'informed plea').
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  2 K.B. 498; Attorney General's Reference (No. 6 of 1980)  Q.B. 715, CA.
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.
A person who does not disclose the fact that they have a STI and then has consensual sexual intercourse with another without informing that person of their infectious state, is not guilty of rape (R v B  EWCA Crim 2945, CA).
Sexual Transmission of an Infection as an Aggravating Feature of Another Sexual Offence
The sexual transmission of an infection may be the consequence of the defendant committing a serious sexual offence on the complainant, such as rape or sexual assault. The Sentencing Guidelines Council has indicated that where an offender knows that he or she has a sexual infection and commits a sexual offence on another, that fact can be taken into account as an additional aggravating factor for sentencing purposes. (Definitive Sentencing Guideline - Sexual Offences Act 2003, published 30 April 2007).
Public Interest Issues
Where the prosecutor is satisfied that there is sufficient evidence to meet the evidential stage in the test in the Code for Crown Prosecutors, he/she must carry on to consider the public interest. The relevant considerations to be borne in mind are set out in the Code.
Complainant and Witness Care Issues
By its very nature, the sexual transmission of infection takes place during the most intimate of activities. Notwithstanding the physical impact that this form of grievous bodily harm may have on them, complainants are likely to have to attend court to give their evidence.
A prosecutor must do everything in his/her power to make sure that those who are infected do not become complainants twice over - once through the actions of the defendant and once more through the requirements of the criminal law for the prosecution to prove its case. Prosecutors should always have in their minds the traumatic circumstances in which the complainants find themselves: this may include coming to terms with the fact that someone well known and close to them has transmitted a possibly life-shortening infection to them. This in turn could have resulted in the breakdown of their relationship and disrupted the complainant's social, domestic and working life in a way that may cause him or her not to want to add to their situation by having to give evidence and face the prospect of cross-examination of their sexual behaviour.
As a result, the prosecutor may well arrive at a position whereby the complainant decides that they no longer wish to give evidence in any court case.
The prosecutor's duty is of course to consider the overall public interest rather than the interests of any one individual and he/she will want to bear in mind that section 18 and section 20 offences are serious.
Where before trial the complainant indicates that he/she no longer wishes to give evidence, the prosecutor will first consider whether it is possible for the prosecution to continue without the complainant. At the same time, the prosecutor will instruct the police to take a statement setting out why the complainant does not any longer wish to give evidence. The key issue is whether the decision to withdraw support from the prosecution is voluntary or as a result of pressure being brought to bear on the complainant.
If it appears that the complainant has been placed under pressure to withdraw his/her complaint, prosecutors may need to consider asking the police to conduct further enquiries and, ultimately, to consider whether a criminal offence has been committed.
Prosecutors should keep all possible options open for continuing with the prosecution - including the possibility of requiring the complainant to give evidence, and the possibility that the relevant provisions under the Criminal Justice Act 2003 may be invoked.
Prosecutors must ensure that the complainant is aware of the special measures that can be applied for at court to provide a more secure environment in which the complainant may give their evidence.
A combination of these factors may help in persuading the complainant to continue to want to give evidence for the prosecution.
In the event of conviction, the court may wish to consider the making of ancillary orders, with a view to placing prohibitions on a defendant's future behaviour with a view to protecting the public from harm from him or her.
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 acase involving the sexual transmission of infection.
It may be possible for a court to consider making an Anti-Social Behaviour Order (ASBO) with a view to regulating the future conduct of a defendant who has been diagnosed with a sexual infection, so as to prohibit him or her from doing anything described in the order.
Prosecutors should consider carefully before asking the court to make such orders, ensuring that any requests are necessary and proportionate having regard to the facts and circumstances of the case in question and the need for ongoing public protection. It should be sufficient and proportionate for an ASBO to prohibit the defendant from having sex with anyone unaware of their sexual health status unless reasonable safeguards are taken to avoid transmission.
It should be borne in mind that an ASBO can only be made on conviction if a court considers:
'that the offender has acted, at any time since the commencement date, in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself'.
Accordingly, an ASBO will not be an appropriate order where there is no evidence that the defendant has acted so as to cause a risk of infection in circumstances outside of a co-habiting relationship.
The Association of Chief Police Officers (ACPO) has worked alongside the National Aids Trust (NAT) to produce a police investigation flowchart. This flowchart sets out the overall investigative process for the police once an allegation of sexual transmission of HIV is made. Prosecutors may find this chart useful as it outlines the key stages the police must go through during the early stages of an investigation. ACPO Investigation Guidance relating to the Criminal Transmission of HIV.