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Policy for prosecuting cases involving the intentional or reckless sexual transmission of infection

Updated 15 July 2011


Introduction

This policy statement explains the way in which we, the Crown Prosecution Service [CPS], deal with cases involving the intentional or reckless sexual transmission of infection.

We are publishing this statement because we recognise the importance of, and the need for, consistent decision-making. We also recognise the potential tension between public health and criminal justice considerations. However, the criminal law exists in part to protect those who are the victims of unlawful conduct by others, including through the unlawful transmission of sexual infection. The role of the CPS is to apply the criminal law and prosecute individuals where the two stage test set out in the Code for Crown Prosecutors is satisfied.

We recognise that those affected by the intentional or reckless sexual transmission of infection often face many difficulties in reporting the incident to the police and then supporting any prosecution at court that may follow. We understand that barriers exist which mean that some people are less likely to report offences. We explain later in this policy statement how we may be able to support complainants in taking a case to court.

We appreciate too that those who are defendants in these cases may be seen as victims themselves, as they also have the infection that they are alleged to have transmitted to another person.

We recognise the strong public interest in encouraging testing amongst those who may be at risk from any sexually transmissible infection. Many infections respond well to medical intervention, and diagnosis will ensure that an individual receives appropriate treatment.

We have consulted widely on the development of this policy statement and have benefited substantially from listening to the views and concerns of others. We have greatly appreciated their input; however, the content of this policy statement is the responsibility of the CPS alone.

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The Code for Crown Prosecutors

The way in which we reach our decisions whether to prosecute is set out in the Code for Crown Prosecutors. This document is issued by the Director of Public Prosecutions who heads the CPS. It is updated regularly so that it reflects current practice. It is a public document. We review the cases that are referred to us in line with the two stage test that is set out in the Code. In those cases where the police have already charged a defendant, we have to decide whether to continue the prosecution, reviewing the case in accordance with the Code. In both situations, the responsibility whether a prosecution should take place is ours, not that of the victim or the police.

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The first stage of the Code test - the evidence

Crown Prosecutors must first be satisfied that there is enough evidence to provide a "realistic prospect of conviction against each defendant on each charge". This means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

To secure a conviction in a criminal court, we have to prove the case so that the court is sure of guilt.

The evidential test we use is therefore different from the test that the court has to apply before it may convict a defendant. The fact that a case may pass the evidential stage set out in the Code does not necessarily mean that the case will result in a conviction. Many things can happen between our decision to prosecute a case and the court's verdict: witnesses may not attend court to give evidence; witnesses may give evidence in court that is different from that which they gave to the police; or the defendant may give evidence and tell a different version of events which may cast doubt upon the prosecution case. It is for the court to decide whether a defendant is guilty based upon the evidence that it hears or reads. This explains why not all cases that are prosecuted result in a conviction.

If the case does not pass the first stage based on the strength of the evidence, it must not go ahead, no matter how important or serious it may be. This is because we have reached the view that the court is not likely to convict the defendant of the crime alleged on the evidence we have. In such cases, it is wrong to put the defendant through the criminal justice process and it is wrong to raise the expectations of victims and witnesses when we do not believe that a conviction is likely.

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The second stage of the Code test - the public interest

If the case does pass the evidential test, Crown Prosecutors must then decide if a prosecution is needed in the public interest.

Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. The Code for Crown Prosecutors lists some of the common public interest factors that prosecutors consider, both for and against prosecution, and can be found at paragraphs 4.16 and 4.17. It is important to realise that these lists are not exhaustive and the factors that will be applied depend on the facts of a particular case.

A prosecution will usually take place "unless there are public interest factors tending against prosecution which outweigh those tending in favour".

In accordance with paragraph 4.18 of the Code when considering the public interest stage, Crown Prosecutors should take into account any views expressed by the victim regarding the impact that the offence has had. We always think very carefully about the interests of the victim when we decide where the public interest lies. However, the prosecution service does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest. We acknowledge that there can be difficulties in striking this balance. The views and interests of the victim are important, but they cannot be the final word on the subject of a CPS prosecution.

The Code is a public document. Copies are available from CPS Communications Division, 9th Floor, Rose Court, 2 Southwark Bridge, London, SE1 9HS or from local CPS offices, or from our website - The Code for Crown Prosecutors.

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General propositions

The law regarding the intentional or reckless sexual transmission of infection is applied irrespective of the particular characteristics of a defendant or complainant. Transmission can occur between a man and a woman, between two men, and between two women. An 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 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.

Because of the different nature of each sexually transmitted infection, the scientific and/or medical evidence required for a prosecution will depend on the facts of each case. Detailed scientific and/or medical evidence will always be required at trial in order to demonstrate that the defendant sexually transmitted the specific infection to the complainant. The nature of this scientific and/or medical evidence will depend on the type of sexually transmitted infection concerned. 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 defendant.

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 medical evidence in order to satisfy the evidential test in the Code. This is because scientific and medical evidence of this nature is not as precise as, for example, evidence of DNA matches.

In the case of some infections, the scientific and/or medical evidence can demonstrate with certainty that the defendant did not infect the complainant because the two people concerned have different strains of the infection. However, scientific and/or medical evidence cannot currently prove that the defendant did infect the complainant. In such circumstances, at best, the scientific and/or medical evidence may demonstrate that the strain of the infection in the complainant is consistent with the strain in the defendant and that the stages of the infection in each are compatible with the assertion that the defendant infected the complainant.

In the case of other infections, the medical and/or scientific evidence may be able to demonstrate that the physical symptoms that the complainant exhibits are the same as the symptoms of a particular kind of infection that the defendant also clearly has. The nature of the evidence will depend on the type of infection.

In some instances, where the factual evidence against a suspect is very strong and the suspect has refused to provide a blood sample or to give access to relevant medical records, charge may be authorised on the basis of the very strong factual information; medical evidence may then be obtained after charge.

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Relevant offences

Transmitting a sexual infection which will have serious, perhaps life threatening, consequences for the infected person can amount to grievous bodily harm [that is, really serious harm] under the Offences against the Person Act 1861. Therefore, the intentional or reckless transmission of an infection can constitute the offence of inflicting or causing grievous bodily harm. The relevant offences for a prosecutor to consider are sections 18 and 20 of the Offences against the Person Act 1861.

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Intentional transmission: Section 18 Offences against the Person Act 1861

The intentional infliction of grievous bodily harm by one person on another is one of the most serious crimes under the law. Consequently, where the Code's evidential test is satisfied, it is likely that the public interest will require us to prosecute.

We will not proceed to trial against a defendant charged with an offence 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 fact that the defendant says that they did infect the complainant and that they intended so to do is not sufficient, on its own, to meet the Code's evidential test. There has to be other factual evidence to support our case. This is because even though the defendant may have intentionally set out to infect the complainant, he or she cannot know for certain that they were successful in doing so.

Where there is appropriate evidence that is compatible with a defendant's admission that he or she intentionally sought to infect a complainant, a plea to section 18 may be accepted subject to the public interest stage of the Code test also being satisfied.

The complainant's consent to sexual activity when he or she knows that the defendant is infectious does not amount to a defence against a charge of intentional infection.

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Attempt to commit section 18

If the prosecution can prove that the defendant intended sexually to transmit an infection to a person but failed to do so, a charge of attempting to commit section 18 may be brought.

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Reckless transmission: Section 20 Offences against the Person Act 1861

When a person inflicts grievous bodily harm upon another without intending to do so (that is, where they are 'reckless'), an offence under section 20 Offences against the Person Act 1861 is committed. It will be for the jury to decide whether a person has been 'reckless'.

In the criminal law, 'recklessness' has a specific meaning. For a person to be found guilty of reckless transmission, the prosecution must prove that a person foresaw that some bodily harm arising out of their act may occur and that that person still went on to take that risk. In respect of the reckless sexual transmission of an infection, this means that, for a person to be found guilty under section 20, the prosecution must prove that the defendant foresaw that the complainant may contract the infection through sexual activity and still went on to take that risk.

The degree of foreseen risk which would make a person 'reckless' depends on the reasonableness or otherwise of the risk taken in the circumstances known to that person at the time the decision was made. If there is justification which the court accepts for running that risk, the person is not reckless.

Relevant to establishing recklessness to the required standard is the level of risk of transmission. This is dependant on the number of exposures and the nature and status of the infection. One exposure to a highly infectious condition could be regarded as reckless; conversely, with a condition where there is a low risk of transmission, the increased number of exposures will indicate an increased level of recklessness since this will increase the likelihood of transmission.

We will not proceed to trial against a defendant charged with and offence 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 defendant 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's test. There has to be other factual evidence to support our case.

Where there is appropriate evidence that is compatible with the defendant's admission that he or she recklessly infected the complainant, a plea to section 20 may be accepted, subject to the public interest stage of the Code's test also being satisfied.

The informed consent of the complainant (that is, knowledge of the defendant's specific infected status) to take the risk of being infected by engaging in sexual activity with a person who is infectious - in cases where the defendant cannot be shown to have intentionally passed on the infection - is a defence in cases of section 20 grievous bodily harm. This does not necessarily mean that the defendant must have disclosed 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 defendant's condition, and the complainant then engages in unprotected sexual activity with the defendant. Similarly, a complainant may be regarded as being "informed" if they become aware of certain circumstances that indicate that the defendant is suffering from a sexually transmitted infection, such as visiting the defendant while he or she is undergoing treatment for the infection in hospital.

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Evidential issues

Cases of sexual transmission of infection are very difficult to prove. The nature of the harm is such that it is unseen although the symptoms of its presence may be very clear.

We need to have evidence not only that the allegation of sexual transmission is compatible with the scientific and/or medical evidence but also that the factual circumstances in which the infection is alleged to have been sexually transmitted support the contention that it was the suspect who transmitted it to the complainant. We will need to be satisfied that the complainant was not infected by another person or by any other means. This may involve the complainant disclosing their relevant sexual history so that we may be satisfied that only the defendant could have transmitted the infection.

We will also need to prove that the defendant was reckless and this will require evidence that the defendant knew that they were infected and infectious.

It is possible, in rare cases, that a person can know that he or she is infected without undergoing the necessary medical tests. This will be a question of fact and it is not possible to provide an exhaustive list of the circumstances from which it will be possible to conclude that the person "knew" they were infected. In such cases, the prosecution will need to look for evidence of what might be described as "a deliberate closing of the mind" on the part of the defendant to the fact that they are infected and infectious. Such evidence might be that the defendant has had a preliminary diagnosis from a clinician who has recommended that the defendant have a formal confirmatory test for presence of the sexual infection but that 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 to infer that they must have known that they were infectious; 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 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 the "deliberate closing of the mind" as proof of knowledge.

As a result, those who choose not to be tested will not necessarily escape prosecution for reckless sexual transmission of an infection if all the circumstances point to the fact that they knew that they were infected.

Evidence that the defendant 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 defendant was reckless. 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 defendant considered to be the adequacy and appropriateness of the safeguards adopted; only where it can be shown that the defendant knew that such safeguards were inappropriate will it be likely that the prosecution would be able to prove recklessness.

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Public interest issues

Where the prosecutor is satisfied that there is sufficient evidence to meet the public interest stage in the Code for Crown Prosecutors, they must carry on to consider the public interest.

The relevant considerations to be borne in mind are set out in the Code.

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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 without that person subsequently being infected.

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Rape

A person who does not disclose the fact that they have a sexually transmissible infection and then has consensual sexual intercourse with another without informing that person of their infectious state is not guilty of rape.

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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 evidence. That evidence may involve a detailed examination of their sexual behaviour around the time of the alleged infection. For many, this will be a deeply intrusive and unwelcome requirement.

We will do everything in our power to make sure that those who are infected do not become victims twice over - once through the alleged actions of the defendant and once more through the requirements of the criminal law for the prosecution to prove its case. We will always have in mind 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 potentially life-shortening or serious 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 them not to want to add to their situation by having to give evidence and face the prospect of cross-examination on their sexual behaviour.

We are fully committed to taking all practical steps to help the complainant through the difficult experience of giving evidence in court. We will 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. We recognise that in cases involving the sexual transmission of infection, the complainant may be particularly vulnerable and will not wish to be identified by the media. We will carefully consider the option of applying for an order preventing the reporting of certain details of the complainant in the media that may lead to their identification.

However, despite these efforts, it may be that the complainant decides that they no longer wish to give evidence in any court case. Where before trial the complainant indicates that they no longer wish to give evidence, we will first consider whether it is possible for the prosecution to continue without the complainant. At the same time, we will instruct the police to find out why the complainant does not any longer wish to give evidence. A 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.

Depending on the reason for the complainant's decision, we will need to consider whether it is appropriate to ask the police to conduct further enquiries with a view to instituting charges against the defendant or a third party. We will explore all these options fully before we decide whether to proceed with a prosecution. Ultimately, however, complainants need to understand that they may be required to give evidence even though they may not want to do so.

We will ensure that the standards of witness and complainant care as set out in the Victim's Code and Prosecutors' Pledge are adhered to. These standards place obligations on all prosecutors to consider the interest of victims from the decision to charge to sentence. They encourage the prosecutor to communicate with the victim and ensure that the needs of the victim are addressed. Victims will be informed of our decisions to discontinue a case or to downgrade charges.

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Conclusion

The CPS understands that cases involving the intentional or reckless sexual transmission of infection may raise very difficult and highly sensitive issues. We recognise that obtaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult and that accordingly it is unlikely that there will be many prosecutions. Nevertheless, we will monitor the way we deal with these cases to ensure that we are using the legislation and applying this policy consistently.

We will be mindful of any indications that there is a disproportionate impact on any particular group of individuals that we may prosecute. Ultimately, however, where there is sufficient evidence and it is in the public interest to prosecute, the CPS has a duty to the complainant and to society at large to bring the defendant before the courts so that where guilt is proved an appropriate penalty may be imposed to reflect the seriousness of the crime committed.

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