Post-graduate research student at Newcastle Law School and teacher of law at Queen Elizabeth Sixth Form College, Darlington.

<kckj@stricklandk.freeserve.co.uk>

This brief article serves by way of introduction to the book HIV/AIDS and the Criminal Law in England and Wales: A Comparative Analysis (ISBN 1 85941 616 0) by Claire Strickland to be published by Cavendish Publishing Limited in August 2001 as part of the Cavendish Book Prize for Outstanding Legal Scholarship 2001. The book takes an in-depth look at the approach to the criminalisation of the transmission of HIV in several jurisdictions and includes the author’s Draft HIV(Exposure) Bill.

© Copyright 2001 Claire Strickland

First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

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In this article it is submitted that although it is probably now feasible to effect criminalisation of the transmission of HIV through either ss 18, 20, 23, 24 or 47 of the Offences Against the Person Act 1861, nevertheless this would not be a good idea. It is shown how extension of the existing criminal law to deal with this problem has been effected in Canada with unpredictable results. In addition it is shown how the legislative approach to the problem, adopted in some states in the USA and Australia, has also produced less than satisfactory results. It is submitted that the UK government should face up to the fact that the incidence of HIV infection in the UK is on the increase and that the public health response alone has not been effective in combating this trend. In the light of the foregoing and the fact that there are various modes of transmission of HIV it is submitted that, despite the problems experienced in some jurisdictions, nevertheless the best way forward is for parliament to create a series of HIV specific offences.

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1. Introduction
2. The lack of case law
3. The medical aspects of AIDS
4. The implications of the medical aspects for the criminal law
5. Possible prosecution routes in England and Wales
6. Examples of the transmission of HIV in these diverse circumstances
7. Effecting criminalisation through the existing non-fatal offences against the person

7.1 Possible effect of incorporation of the European Convention on Human Rights
7.2 The Canadian experience

8. Effecting criminalisation through legislation
9. Conclusion

Bibliography

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Although the spread of the Human Immunodeficiency Virus (hereinafter HIV) and Acquired Immune Deficiency Syndrome (hereinafter AIDS) is a multi-faceted global problem, this article concentrates on some of the issues surrounding the possible criminalisation of the transmission of HIV in England and Wales. It is my contention that although the existing criminal law could be utilised to effect criminalisation, in the light of the incorporation of the European Convention on Human Rights (ECHR) into UK law, parliament might decide that the time is right for the creation of HIV specific offences.

It could be argued that this issue has been debated ‘ad nauseam’. However, while there is no set threshold at which ‘healthy’ individuals reach a state of nausea, an individual infected with HIV/AIDS has crossed a nausea threshold from which there is no return. The pace of development of society is such that a paradigm of knowledge on this subject is only valid for a limited period of time. Discoveries in medical science coupled with the likelihood of judicial or parliamentary creativity following the incorporation of the ECHR into UK law mean that this debate is ‘live’; I make no apologies for the discussion that follows.

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HIV and AIDS are diseases that have flourished and come to media attention through sexual activity. They are not, however, the only diseases which may be transmitted through sexual activity. One may wonder, therefore, why there is no existing criminal case law on which to build. The answer could stem from the fact that before antibiotics were widely available the nature of society was such that one would not admit to having a sexually transmitted disease, and once antibiotics were widely available, from the 1950s onwards, these diseases were quickly dispatched. Thus, despite the enlightenment of societal attitudes towards discussion of all matters sexual, the fact that contracting venereal disease or genital herpes is usually non-fatal and readily treatable with anti-viral drugs probably explains the lack of criminal case law. The dilemma for the criminal law now is that AIDS is a fatal disease.⁽¹⁾

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It is necessary to have a basic understanding of the medical aspects of HIV/AIDS at the outset as much posturing in the criminalisation debate centres on the uncertainty as to whether HIV/AIDS fits into the criminal law definition of harm and if it does, the timing of when this harm occurs.

In order to stave off many everyday illnesses the body has an immune system which relies heavily on the helper T4 lymphocyte cell, the very cell that comes under attack from the retrovirus that leads to AIDS. As a result of a diminished and eventually destroyed immune system, the body succumbs to a range of diseases and infections, especially pneumonia, which lead to death (Roth 1989, p4).⁽²⁾

From the point of view of the criminalisation of the transmission of HIV it is useful to consider the three clinical stages involved in the development of AIDS (Smith 1991, p 19). The first stage starts when an individual becomes infected with HIV. Within approximately three months the individual becomes seropositive, tests positive for the AIDS virus antibodies, but is totally asymptomatic. This stage can last for several years. The second stage starts when the individual starts to manifest symptoms of the disease such as weight loss, dementia, anaemia and mild infections. These symptoms reveal that the immune system has been damaged and during this stage the individual is said to be suffering from the AIDS-related complex (ARC) and may die. The third stage is full-blown AIDS which is reached when the immune system is totally deficient, that is, destroyed. It manifests between four and ten years after the first stage and results in death. Without the availability of combination drug therapies nearly 50% of young men who became infected with HIV had died from AIDS within 12 years, even in the developed countries (Hessol 1994). However, when HIV infected people are treated with combination drug therapies their health improves and the likelihood of a premature death decreases (Gebhardt et al 1998). This is not an exact science, however, and there are no certain predictors.

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The three medical stages of HIV/AIDS have huge implications for the application of the criminal law. The following points demonstrate how the criminal culpability of an HIV infected person may be linked to the three stages of the disease. It will be seen later in this article how such issues lie at the heart of the criminalisation debate.

Initially, an individual infected with HIV is blissfully unaware of that fact because in the first stage the disease is asymptomatic. Discovery of infection will only occur following blood testing which screens for HIV/AIDS and for most people why should this occur? If criminalisation of the transmission of HIV is linked to the identification of harm to a victim, then during this stage, unless it is medically identified, there is no scope for intervention by the criminal law. The only way in which the criminal law could be invoked against an HIV infected person, unaware of his infection, is if it were invoked, for instance, on the basis of membership of a group known to indulge in activities carrying a high risk of transmission of HIV. It is unlikely that the criminal law would be invoked on this basis. The detection of infection is the first stage in the metamorphosis of an individual’s health. From this time onwards it could be possible to invoke the criminal law in order to set acceptable behavioural parameters . However, on what basis should the criminal law be invoked? Should it only be invoked in situations where a victim suffers bodily harm? If so, does bodily harm include only physical harm or only psychiatric harm, or both? Is the transmission of HIV a type of bodily harm recognised by the criminal law? We know from R v Chan-Fook [1994] 1 WLR 689 that clinically proven psychiatric harm can amount to actual bodily harm for the purposes of an assault occasioning actual bodily harm under s 47 of the Offences Against the Person Act 1861 (OAPA1861). We also know from R v Ireland and Burstow [1998] AC 147 that clinically proven really serious psychiatric harm can amount to grievous bodily harm for the purposes of inflicting or causing grievous bodily harm under sections 20 and 18 of the OAPA 1861 respectively. Could the psychiatric symptoms of HIV infection, such as dementia, that manifest in the ARC stage be included within such definitions of harm? Indeed, could the criminal law be invoked without a victim actually suffering any bodily harm? That is, could the criminal law be invoked on the basis that the HIV infected person exposed another person to the risk of being infected with HIV? Such exposure or endangerment offences do exist in the criminal law: for instance the offence of administering poison under section 23 of the OAPA 1861. The advantage of an endangerment offence is that there is no need to prove that harm was suffered by a victim. The offence is based on the conduct of the accused. The attractiveness of this type of offence when dealing with the possible criminalisation of behaviour risking the transmission of HIV is shown below.

During the second stage of infection intervention by the criminal law on the basis of the harm principle is more feasible as an infected individual will be symptomatic and inevitably will have consulted medical opinion and, maybe, undergone blood testing. It is thus much more likely that the HIV infected person will now have actual knowledge of his HIV infection. During this stage there is more scope for intervention by the criminal law to set behavioural parameters whether the basis for intervention is based on the harm principle or on an endangerment principle.

During the third and final stage of infection the infected individual is dying as the disease has metamorphosed into AIDS for which there is no known medical cure. Although the latest drug combination therapies can reduce the virus to below detectable levels, this does not mean that the virus has been eliminated. If the therapies are withdrawn, within weeks the virus bounces back from its deepest hiding places and only recedes when the drugs are started again. A major problem is that there are several strains of HIV and these can mutate. The latest vaccine, Alphavax, can tackle type C HIV, the strain that affects more than 90% of South Africans who have HIV. Trials of this drug on humans started in February 2000. Even if it proves to be successful in the fight against the spread of type C HIV, vaccines still need to be developed to fight other strains. While there is obvious scope for intervention by the criminal law during this stage, since there is little chance that the individual is unaware of his status, the reality of intervention may be determined more by other factors. For example, the will of a victim to file a complaint against a dying person and the lack of available time to see a prosecution through. Moreover, if a victim is infected with HIV and is also approaching or in the final stage of the disease, then they might not have the will to file a complaint either. Thus, during this final stage of the disease, factors such as these may be more determinate of criminal intervention than adequate provision for prosecution in the substantive criminal law. However, clarity in the criminal law might encourage individuals to at least consider the prosecution option and might act as a deterrent to some would-be offenders.

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It has already been noted that the transmission of HIV/AIDS has come to the fore in respect of sexual activity. However, transmission may occur in a variety of situations: during lawful medical and surgical procedures, in the course of satisfying a habit of drug abuse and in any situation involving the direct exposure of a non-infected person to the blood or body fluids of an infected person. In this article it is my contention that whatever the situation it should be possible to extend the reach of the criminal law to address that behaviour which has crossed a threshold of acceptable behaviour. Although it is in the arena of sexual activity that extension of the criminal law is likely to be particularly problematic, in terms of intrusiveness by the state and evidential problems, this of itself should not bar criminalisation. Given the premise that certain instances of the transmission of HIV should be criminalised, how is this to be effected?

The more reactive and unsatisfactory solution involves development of the existing criminal law. Possible prosecution options lie within the law of homicide (murder or manslaughter if the victim dies, or attempted murder), the law on non-fatal offences against the person (causing grievous bodily harm with intent, inflicting grievous bodily harm, assault occasioning actual bodily harm and the administration offences) and the law on sexual offences (rape and procuring sexual intercourse by false pretences). This list has been compiled on the basis of medical evidence that shows that HIV has been found in semen, lymphocytes in peripheral blood, cell-free plasma, cerebrospinal fluid, cervical secretions, tears, saliva, urine and breast milk, although there are no cases where HIV has been transmitted by tears and saliva alone. The medical evidence further reveals that HIV may be transmitted through anal and vaginal sexual intercourse, through the sharing of contaminated needles, through infected blood and blood products during transfusions (especially Factor VIII), perinatally by an infected mother and post natally by breast feeding by an infected mother. Unfortunately, the academic debate on the criminalisation of the transmission of HIV has up until now been ‘exclusive’ in nature. Proponents have argued either that criminalisation is already possible under one or other non-fatal offence against the person (see Ormerod and Gunn 1996) or that only the sexual transmission of HIV deserves consideration (see Smith 1991). It is submitted that this has been a mistake; the debate should be ‘inclusive’ in nature. The range of circumstances in which there is a real risk of the transmission of HIV is so varied that it is wishful thinking to aim to criminalise transmission carte blanche. To avoid offending particular groups in society, especially those regarded as high-risk groups for the transmission of HIV, such as homosexuals, bisexuals or drug users, it is necessary to categorise the circumstances of transmission so that more than one type of existing offence can be used depending on the circumstances. The range of circumstances is shown in the table below.

Circumstances of transmission	Possible existing prosecution options
i. Sexual transmission	i. ss 18 and 20 of the OAPA 1861 or murder or manslaughter
ii. Blood transfusions	ii. ss 23 and 24 of the OAPA 1861 or manslaughter
iii. Needles/syringes	iii. ss 18, 20, 23 and 24 of the OAPA 1861 or murder or manslaughter
iv. Perinatal transmission	iv. ss 18 and 20 of the OAPA 1861
v. Postnatal transmission by breast feeding	v. ss 23 and 24 of the OAPA 1861 or manslaughter or infanticide
vi. Medical/surgical procedures	vi. ss 18 and 20 of the OAPA 1861

However, the focus of this article is on the stated range of non-fatal offences against the person with particular emphasis on the section 18 and 20 offences.

The second, more satisfactory route to criminalisation of the transmission of HIV involves legislation. Other jurisdictions, such as the USA and Australia, have shown that this is possible and both the Law Commission (Law Com No 218) and the UK government (Home Office 1998) have prepared Draft Bills that cater for the criminalisation of the transmission of disease. The main weaknesses of these legislative developments are discussed below. Here, suffice it to say that the legislative approach to the criminalisation of the transmission of HIV should also specifically address the various modes of transmission of the disease. Such an approach receives statistical validation and enhanced significance in the light of the statistics provided by the Public Health Laboratory Service in their HIV Quarterly Surveillance Tables 6a and 6b. These tables show that the two main methods by which HIV is transmitted are sex between men and sex between men and women. The alarming statistic is that since 1998 the incidence of transmission of HIV due to sex between men and women has caught up to and indeed surpassed the incidence of transmission of HIV due to sex between men. Early statistics for the year 2000 show that there were 1,315 heterosexually-acquired diagnoses compared to 1,096 cases among gay and bisexual men. The belief that HIV is a ‘gay disease’ has thus been totally discredited. The other methods of transmission of HIV are listed as injecting drug use, mother to infant and blood/tissue transfer or blood factor transmission. The fact that statistics are available for these methods of transmission of HIV reveals that there is a problem that needs addressing. Moreover, the statistics reveal that between 1985 and 1999 the incidence of newly infected HIV people was fairly constant at around 2,500 year. The early statistics for the year 2000 are particularly worrying in this respect as they reveal 2,868 newly infected HIV people. This suggests that the public health initiatives of both the Conservative and Labour governments have not been effective. Although the statistics show that the number of AIDS cases per year has been steadily falling since 1994, when they peaked at 1,740, this is due to the availability of ante-retroviral drug therapies. There will come a time, however, when the number of AIDS cases per year starts to rise again as people have to come off the drugs having been on them for the optimum length of time.

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Since it is a major contention throughout this article that criminalisation of the transmission of HIV should be effected in relation to the various modes of the transmission of HIV, whether through the existing criminal law or by legislation, it is perhaps necessary to demonstrate the reality of the transmission of HIV in these diverse circumstances. Let us start with the sexual transmission of HIV. In 1992 Mr Roy Cornes, then aged 24 years, was accused of deliberately infecting four women with HIV, one of whom subsequently died of AIDS. The then Home Secretary, Kenneth Clarke, announced that the deliberate transmission of HIV was not to be made a criminal offence. At the same time Public Health officials stated that they were powerless to act against anyone who deliberately transmitted HIV. This demonstrated the inadequacy of the Public Health legislation concerning the control of disease with regard to the transmission of HIV. In 1992 there were four pieces of legislation at the disposal of Public Health officials and none of them could be used to address the deliberate transmission of HIV. They were the Public Health (Control of Disease) Act 1984, the Public Health (Infectious Diseases) Regulations 1988, the AIDS (Control) Act 1987 and the Health and Medicines Act 1988. These are still the only pieces of legislation available for the control of disease. In 1997 Janette Pink, from Sussex, struggled to persuade the Cypriot authorities to prosecute Pavlos Georgiou for infecting her with HIV during their affair in Cyprus from 1993. Eventually Georgiou was convicted under a little known Cypriot law of 1957 which had been introduced into Cyprus to prevent the spread of typhoid, cholera and venereal disease. He was sentenced to fifteen months in prison. The criminalisation debate was re-kindled by this episode but as of yet no specific crime for the transmission of HIV has been introduced. In 1998 a man was charged with causing grievous bodily harm after infecting his teenage girlfriend with hepatitis B through unprotected sex. When Judge Jonathan Crabtree heard legal submissions at York Crown Court he ruled that the accused be acquitted because he had not intended to cause his girlfriend grievous bodily harm and if he had been reckless as to whether he caused her grievous bodily harm, such conduct was not covered by the s 18 offence. It is likely that the prosecution in this case proceeded on the basis of the s 18 charge in the light of the decision in the case of R v Clarence (1888) 22 QB 23 which was obviously taken to exclude prosecution under s 20.⁽³⁾ That intervention by the criminal law is needed in such circumstances of sexual transmission was summed up by Judge Crabtree when he said, “I am now faced with a request for a ruling which, in my view, raises an unhappy situation in which part of the English law can and has been criticised.... In my own view they ought to introduce an offence of reckless transmission of disease. It is a matter for the politicians” (Stokes 1998). Apart from instances where sexual intercourse takes place in what prima facie appear to be consensual circumstances, there is also the issue of the transmission of HIV in instances of non-consensual sexual intercourse/activity. The obvious situations include rape and paedophile cases. One cannot assume that rapists and paedophiles suddenly desist from offending on discovering their HIV positive status. On the contrary, all their HIV positive status does is make them a greater danger to the public. For instance, in October 2000 Lee Tucker, an HIV positive paedophile failed to appear in court for his trial for a series of attacks on young boys aged between 12 and 15 years old. The police described him as a ‘dangerous criminal’. Perhaps more disturbing was the fact that he was part of a paedophile ring.

One would expect the risk of the transmission of HIV through blood transfusions in hospital to be low due to implementation of screening and treatment of blood products. However, this may be too complacent an attitude. France is a modern European state yet in 1992 the head of the blood transfusion service, Michel Garretta, was found guilty of manslaughter and imprisoned for four years for distributing poisoned blood products. In March 1999 the French Minister of Health, Edmond Herve, was found guilty of manslaughter by a specially convened Court of Justice of the Republic for allowing distribution of HIV contaminated blood to haemophiliacs during the 1980s (Webster 1999 and Sage 1999). As a result of these blood transfusions 4,333 individuals contracted AIDS and of these over 1,000 have since died of the disease. In other words, when screening and treatment of blood products goes wrong, the victim pool is potentially huge and as such intervention by the criminal law is not so outrageous. Even isolated instances can have devastating effects as was witnessed in 1992 in Britain during the scandal surrounding Mr Roy Cornes whose ability to sexually transmit HIV to four women stemmed from the fact that a few years earlier he had been given infected blood products by a hospital.

Transmission of HIV through the use of needles/syringes may be effected not only by individuals pursuing a drug abuse habit, as the case of Brian Stewart in Missouri, America revealed in 1998 (Bone 1998). Stewart was convicted of first-degree assault by a jury in St Charles, Missouri for stealing an HIV infected specimen and injecting it into his son who was in hospital suffering from an asthma attack. Stewart’s motives were purely malevolent as he did not want to pay child support for his son. If a similar event occurred in Britain there would certainly be calls for intervention by the criminal law and even when injection is not necessarily malevolent there is a role for the criminal law as a National AIDS Trust survey has shown that there are 150-200 new cases of HIV/AIDS infections a year due to drug abuse practices. The fact that the needle or syringe pierces the continuity of the whole skin could also sustain a charge under sections 18 or 20 of the 1861 Act, as applicable, though this would not address the real issue at hand.

That perinatal and post-natal transmission of HIV is a serious problem was highlighted in 1999 in Re C(a child) (HIV test) (1999) The Times. In this case a woman knew that she was HIV positive when she got pregnant. She ignored medical advice to take medication during the last weeks of the pregnancy and advice to defer from breast feeding once the baby was born. When the parents repeatedly refused to have the baby tested for HIV, the local authority commenced proceedings. After due consideration of the Children Act 1989 s 1(5) and Article 8 of the ECHR Mr Justice Wilson held that the overriding advantages of testing the baby for HIV overrode the wishes of the parents. This case demonstrates that some mothers are prepared to engage in conduct that they know exposes their baby to a serious risk of transmission of HIV. In such instances one could argue that intervention by the criminal law is justified. In addition, to avoid the risk of transmission of HIV to those involved with the baby outside of the immediate family there could also be scope for intervention by the criminal law.

Looking further to the clinical environment, in May 1999 it was reported that a surgeon at Aberdeen Royal Infirmary had infected a sixty-eight year old man with the hepatitis B virus during surgical procedures (Seenan 1999). The alarming fact in this case is that the surgeon was operating within the appropriate hospital regulations. Moreover, since 1993 eight patients have been infected with the hepatitis B virus by surgeons.

Inclusive use of the existing criminal law to criminalise the transmission of HIV in these diverse circumstances has advantages. First, it will make it easier for the government to avoid charges of discrimination on the grounds that only certain sections of society have been targeted. Secondly, it will help to assure the public that the criminal law is there to protect them in those situations where there is a real risk of the transmission of HIV. Thirdly, it will help assure the public that the law is not being over intrusive in their private lives. Finally, it will strengthen the justification arguments for the extension of the criminal law in this way as different underlying philosophies can be applied to the different circumstances of criminalisation.

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The case that has dogged development of the non-fatal offences against the person to deal with the problem of the sexual transmission of disease is R v Clarence (1888) 22 QB 23. The facts of the case were that on 20 December 1887 Charles James Clarence had sexual intercourse with his wife, Selina Clarence, knowing that he was infected with gonorrhoea. His wife did not know that he was so infected and had she known she would not have consented to sexual intercourse. As a result of the act she was infected with the disease and took steps to prosecute her husband. At the trial in the Central Criminal Court Clarence was found guilty of both counts on the indictment: firstly, of ‘unlawfully and maliciously inflicting grievous bodily harm’ upon his wife contrary to s 20 of the OAPA 1861 and secondly, of an ‘assault occasioning actual bodily harm’ upon her contrary to s 47 of the OAPA 1861. The appeal by way of case stated to the Queen’s Bench Division was heard before thirteen judges of which nine supported the quashing of the conviction. Stephen J, in the majority, thought that the word inflict implied an assault and battery of which a wound or grievous bodily harm was the manifest, immediate and obvious result. As a wound or grievous bodily harm was not the manifest, immediate and obvious result of Clarence’s act he did not ‘inflict’ harm onto his wife. Moreover, the word inflict implied that the victim had been struck. In other words, the delay between the actions of Clarence and the onset of the infection in his wife negated any notion of an assault. With regards to the s 47 offence, after first submitting that he thought that the act of infection was not an assault at all for the reasons he had already given, he submitted that the only instances when fraud would vitiate a woman’s consent were when there was fraud as to the nature of the act itself or as to the identity of the person doing the act. He further argued that whilst in civil law, a contract could be made voidable by fraud and thus stand until and if the defrauded party elected to repudiate the contract, a similar situation could not be allowed to exist in the criminal law. Criminality must attach at the time of the act or not at all. Thus, if a woman consented to the act of sexual intercourse then despite any fraud on the part of the man, other than personation of the husband, his act would not be criminal. If the woman did not consent to sexual intercourse then the man would be guilty of rape. The woman could not have the facility to say after an interval of time, when transmission of a disease had manifested itself, that in hindsight she did not consent.

As was mentioned earlier in the article it was probably this case that led Judge Crabtree to the conclusion that it was impossible to convict anyone of recklessly infecting another with a disease through sexual intercourse. Since it is an extremely difficult task to prove that someone intentionally infected another with disease, it would seem that the Clarence legacy is such that prosecutors of today do not have a prosecution option in cases concerning the transmission of HIV. Or do they? Clarence has to be viewed in the light of the more recent case of R v Ireland and Burstow [1998] AC 147. These two cases, joined on appeal to the House of Lords, concerned stalking. In Ireland the appellant had made repeated silent telephone calls to three women who subsequently suffered psychiatric illness. Having pleaded guilty to three counts of assault occasioning actual bodily harm under section 47 of the OAPA 1861 he unsuccessfully appealed to the Court of Appeal. In Burstow the appellant had made silent and abusive telephone calls to a woman, visited her place of work and home and taken photographs of her and her family such that she suffered a severe depressive illness. Having pleaded guilty to one count under section 20 of the OAPA 1861 he unsuccessfully appealed to the Court of Appeal. In considering the meaning of the word ‘inflict’ in the section 20 offence, Lord Steyn, with whom the other Law Lords agreed, determined that it was possible to speak of inflicting grievous bodily harm on a person even though no direct physical violence was applied directly or indirectly to the body of the victim. His Lordship made reference to Clarence and openly distinguished it on the grounds that it concerned direct physical violence and was complicated by the issue of consent. However, it is suggested that by stating to all intents and purposes that the word ‘inflict’ means the same as the word ‘cause’, Lord Steyn effectively overruled Clarence. On this basis there is now a much greater chance of success for a prosecution for the transmission of HIV to another person based on the section 20 offence. The obstacles that remain are whether or not HIV is a type of harm that can be regarded as grievous bodily harm, establishing the causal connection between the sexual act and the subsequent infection of the victim and determining whether the accused acted with subjective recklessness. It is submitted that with judicial will such problems could be overcome and that incorporation of the European Convention on Human Rights (ECHR) into UK law might make this happen sooner rather than later.

Section 3 of the Human Rights Act 1998 requires the judiciary, so far as it is possible, to interpret legislation in a way that is compatible with the ECHR. But what about the common law? What about, for example, the case of Clarence? According to s 6 of the HRA public authorities, which includes the courts, have to act compatibly with the ECHR. Thus, the judiciary have to take the ECHR into account when developing the common law. This was confirmed by the Lord Chancellor in Parliament when he said:

“We also believe that it is right as a matter of principle for the courts to have the duty of acting compatibly with the convention not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals... the courts already bring convention considerations to bear and I have no doubt that they will continue to do so in developing the common law”. Hansard (HL) vol 583, col 783 (24 November 1997).

Section 6(6) states that act also includes failure to act other than failing to introduce proposals for legislation or failing to introduce primary legislation. Does this mean that a judge in the Crown Court could be the subject of an appeal or judicial review proceedings under s 6 if he fails to interpret ss 18, 20, 23 or 24 of the 1861 Act and Clarence in light of Convention rights? A victim of the transmission of HIV could seek judicial review of the judge’s decision not to proceed, if this was based on Clarence. The victim could claim that Clarence should be interpreted in the light of, for example, Articles 3 (that no one shall be subjected to torture or to inhuman or degrading treatment or punishment) and/or article 13 (right to an effective remedy) of the Convention. A case in point is A v United Kingdom (1998) 2 FLR 959, 27 EHRR 611. In this case the applicant’s stepfather had been charged under section 47 of the OAPA 1861, assault occasioning actual bodily harm, after he beat the applicant with a cane causing severe bruising. He was acquitted at trial because he successfully raised the defence of reasonable chastisement. The applicant claimed breach of Article 3 by the UK government because the law of reasonable chastisement had not protected him from inhuman and degrading treatment or punishment. The European Court upheld the complaint. Given the premise that transmission of HIV can be regarded as causing or inflicting grievous bodily harm, can it be said that sections 18, 20, 23 or 24 of the OAPA 1861 provide adequate protection of individuals from such transmission? Obviously it cannot. Furthermore, relying on Tyrer v United Kingdom (1978) 2 EHRR 1 para 31, the victim could argue that as the Convention is a “living instrument which ... must be interpreted in the light of present day conditions” and as scientific knowledge of HIV and AIDS is much more advanced now, the issue of transmission of HIV should be brought within the scope of any or all of ss 18, 20, 23 or 24 of the 1861 Act. The judiciary have to realise that in order to interpret legislation in a way which is compatible with the ECHR, precedents may have to be ignored. The judiciary now have to take a more purposive approach to statutory interpretation and the development of the common law. In the light of this, the victim of the transmission of HIV could also argue that the case of Ireland and Burstow suggests that the common law is already being developed along these lines. In other words, the pressure is on the judiciary to act positively with regards to the criminalisation of the transmission of HIV under sections 18 or 20 of the 1861 Act.Their reticence to date is unlikely to be allowed to continue for much longer. However, it is to be hoped that the government will realise that the development of the common law in this fashion to deal with the criminalisation of the transmission of HIV is the second best way forward. That is what happened in Canada.

The leading case in Canada is R v Cuerrier (1998) 127 CCC (3d) 1 (SCC) which concerned the prosecution of Cuerrier for the sexual transmission of HIV under s 268 of the Canadian Criminal Code, aggravated assault. The Crown appealed against a directed verdict of not guilty to the Supreme Court of Canada which ordered a new trial on two counts of aggravated assault. All seven justices rejected the decision in Clarence and held that the non-disclosure of HIV positive status could amount to fraud and thus make it possible for an accused to be convicted of aggravated assault. Unfortunately, in May 1999 the Attorney-General for British Columbia announced that a new trial would not take place. Although the British Columbia Court was thus spared having to deal with this problem head on, nevertheless the Supreme Court ruling sent shock waves through the Canadian legal system. Despite the fact that this ruling only concerned non-disclosure of HIV positive status in sexual situations, it is anticipated that the ruling will be interpreted in a much broader fashion by the provincial judiciary on an ad hoc basis. This is partly due to the fact that although all seven justices rejected the decision in Clarence, they did so on different grounds. The majority, per Cory J, said that in cases involving a “significant risk of bodily harm” judges could take account of fraud in the commercial sense in terms of dishonesty and deprivation. McLachlin J preferred an incremental approach to development of the common law by restoration of the decisions in R v Bennett (1866) 4 F&F 1105 and R v Sinclair (1867) 13 C0x CC 28.⁽⁴⁾ L’Heureux-Dubé, however, stated that any fraud could vitiate consent to all types of assault because the autonomy and physical integrity of the person has been violated. In other words, because the legislature in Canada is not prepared to legislate specifically to criminalise the transmission of HIV, it is being left to the judiciary to muddle through as best they can. As a result, the criminal law approach to the problem will continue to be uncertain. It is submitted that the UK government should look to the Canadian experience and realise that this is not the best way for the criminal law to develop.

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We can now turn our attention to the legislative route to criminalising the transmission of HIV. As was mentioned earlier in the article, some jurisdictions do have legislation on the statute book to criminalise the transmission of HIV, such as several states in the USA and Australia. Unfortunately, such legislation is far from perfect. Two major criticisms of such legislation are first that it tends to be vague and second that it attempts to approach the issue in a carte blanche fashion. Consequently it allows for the prejudicial and arbitrary application of the law. The Illinois State Statute (Ill Rev Stat ch 38, paras 12-6.2) is a prime example.

Let us look more closely at the Draft Bills of both the Law Commission and UK government. Under the Law Commission’s Draft Criminal Law Bill criminalisation of the transmission of all types of disease would be possible under Clause 2 (intentionally causing serious injury to another), Clause 3 (recklessly causing serious injury to another) or Clause 4 (intentionally or recklessly causing injury to another). This is because in paragraph 15.10 of the Law Commission’s Report we are informed that the intentional or reckless infliction of illness or disease is to be included within the definition of physical injury (Clause 18) under the heading of ‘any other impairment of a person’s physical condition’. Since the determination of what amounts to serious injury is to be left to the jury, it is highly likely that the jury would deem the actual transmission of HIV to another to be serious injury since death always results from the infection. Although the government’s Draft Offences Against the Person Bill is very similar to the Law Commission’s Draft Criminal Law Bill, with regards to the transmission of disease it has one marked difference. It only provides for the criminalisation of the transmission of disease when this is done intentionally. The government justifies this more cautious approach on the basis that the law should not seem to discriminate against those who are HIV positive, have AIDS or who carry any kind of disease. Nor does it want to discourage people from coming forward for diagnostic testing or treatment.

The major weaknesses of both of these Draft Bills stem from the fact that they depend on the actual transmission of HIV from one person to another. Such an approach plunges prosecutors into the murky waters of having to establish the causal link between the alleged act of infection and actual infection. Prosecutors would also have to establish the mens rea of the accused. Furthermore, the Draft Bills deal with disease generally without being HIV specific when transmission of HIV is the conduct they really wish to target.

However, these experiences should not deter the UK government from taking the legislative path. As early as 1989 Gostin noted that there was a growing impatience with the public health response to the transmission of HIV in the USA, particularly as there was no cure for the disease, and noted that:

“It is not unreasonable for society to establish clear parameters as to the behaviours it will not tolerate. By drawing a bright line around the behaviours that pose serious public health risks, the law gives clear notice of the conduct which will be subject to criminal penalty”. ( Gostin 1989)

Further support for use of the criminal law came in 1992 from Tierney when he took a critical look at the use of the both the existing criminal law and new criminal legislation in the USA (Tierney 1992). He noted that although the legislative provisions in force in the various states were often badly drafted, nevertheless they were on the whole an improvement over use of the traditional criminal law. Furthermore, he noted that most of the problems associated with HIV specific criminal legislation came about because the legislation was hastily drafted for political expediency during the early days of the epidemic to calm public fears. He concluded that the first approach of states in the USA to the problem of the transmission of HIV should be a public health one, to educate the public so that the spread of the disease could be minimised. However, he also concluded that it was entirely appropriate to use the criminal law to prosecute those individuals who despite the public health initiatives continued to pursue activities risking transmission of the disease. In this respect he stated that:

“Properly drafted HIV specific statutes provide a more legitimate and effective means for criminalising HIV-transmitting behaviour. The HIV specific statutes must not be vague or over-broad and must not be used for the purpose of selectively prosecuting and harassing members of high risk groups”. (Tierney 1992 at 475*512)

Thus, given that the appropriate political climate now exists in the UK following the incorporation of the ECHR into UK law, it is submitted that the UK government could confidently introduce a Bill into parliament to create HIV specific offences. However, it should not approach this challenge half-heartedly. It must move away from its 1998 proposals to criminalise the transmission of disease through the existing non-fatal offences against the person. It should be bold. It should create several HIV specific offences based on the main methods of transmission of HIV. However, actual transmission of HIV should not be the essential ingredient of such offences. Rather, criminal liability should attach to the accused on the basis that the accused “exposed” another person to a “real risk” of transmission of HIV. In other words a series of endangerment offences should be created in what could be called the HIV (Exposure) Bill. This Bill should contain exposure offences that target exposure to the risk of transmission of HIV through sexual activity, through shared use of drug injection equipment, through attack with a syringe loaded with blood taken from an HIV positive person, through medical treatment, through donation of blood and through breast feeding by an HIV positive mother. It is beyond the scope of this article to fully explain the endangerment offences listed above. However, since it is the sexual arena that evokes much interest a few comments can be made on the risk to the exposure of transmission of HIV through sexual activity offence. It is generally accepted that sexual relations are a vital component of a person’s life and as such their autonomy should be respected as much as possible. However, society also needs protecting. Thus, the sexual exposure offence applies when the HIV positive person has not informed the other person of his HIV positive status. The accused is guilty of the offence in these circumstances whether or not the other person consented to sexual intercourse, whether or not recognised barrier prophylactics were used and whether or not the victim has been infected with HIV. It is the conduct of the accused that is paramount. The HIV positive person has to act responsibly. Thus, even if he informs the other person of his HIV positive status and that person consents to sexual intercourse knowing this, the HIV positive person will nevertheless commit the sexual exposure offence if recognised barrier prophylactics are not used.

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The creation of HIV specific exposure offences by parliament will help avoid many of the problems surrounding possible criminalisation of the actual transmission of HIV such as proving the mens rea of the accused or proving the causal link between the conduct of the accused and the infection of the victim. Carefully drafted legislation has the potential to help protect society from the risk of the transmission of HIV working in tandem with the public health approach. It also has the potential to help protect potential offenders from the risk of arbitrary or prejudicial interference in their private lives. The human rights of everyone in society have to be protected.

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Bone (1998) ‘Man injected his son with HIV to avoid payments’ The Times, 7 December

Brown (1999) ‘Chimp close to being wiped out was source of HIV virus’ The Guardian, 1 February

Gerhardt et al (1998) ‘Impact of antiretroviral combination therapies on AIDS surveillance reports in Switzerland’ AIDS 12:1195-201

Gostin, L (1989) ‘The Politics of AIDS: Compulsory State Powers, Public Health and Civil Liberties’ 49 Ohio State Law Journal 1017,*1038

Hawkes (2000) ‘Tests discredit chimp theory on HIV’ The Times, 12 September

Hessol N A et al (1994) ‘Progression of HIV-1 infection among homosexual men in hepatitis B vaccine trial cohorts in Amsterdam, New York City and San Francisco, 1978-1991’ A J Epidemiol 139: 1077-87.

Home Office (1998) Violence: Reforming the Offences Against the Person Act 1861

Law Commission No 218 (1993), Legislating the Criminal Code: Offences Against the Person and General Principles (London: HMSO) Cm 2370

Mindel and Muller (1996) AIDS: A Pocket Book of Diagnosis and Management (London: Arnold)

Ormerod D, C and Gunn M, J (1996) ‘Criminal Liability for the Transmission of HIV’ 1 Web JCLI

Roth (1989) All About AIDS (Switzerland: Harwood Academic Publishers) p 4

Sage (1999) ‘Fury as court frees blood scandal trio’ The Times,10 March

Seenan (1999) ‘National Roundup: Deadly virus passed on by surgeon’ The Guardian, 28 May

Smith,K (1991) ‘Sexual Etiquette, Public Interest and the Criminal Law’ 42(2) Northern Ireland Legal Quarterly 312

Stokes (1998) ‘Judge urges new law as reckless sex trial unfolds’ The Daily Telegraph, 19 June

Tierney, W (1992) ‘Criminalising the Sexual Transmission of HIV: An International Analysis’ 15 Hastings International and Comparative Law Review 475

Webster (1999) ‘All go free in HIV blood trial’ The Guardian, 10 March

⁽¹⁾ The web site of the Public Health Laboratory Service (www.phls.org.uk) provides excellent data and statistics on a range of Sexually Transmitted Infections (STIs).

⁽²⁾ It has now been discovered that AIDS originated in chimpanzees in west-central Africa and spread to human beings during the hunting and eating of the animals (Brown 1999). An alternative theory is that HIV spread to human beings from chimpanzees, not through hunting, but through polio virus clinical trials that were held in Africa in the late 1950s. The theory is that the polio vaccine became contaminated with HIV when it was being cultured on cells taken from the kidneys of chimpanzees. However, scientists who were involved in the clinical trials deny that chimpanzee tissue was used in the trials. The disease probably spread to the western hemisphere as a result of visitors to Africa becoming infected during unprotected sexual intercourse with the indigenous population. It was officially recognised in the UK and in America in 1981 (Mindel and Muller 1996, p 1).

⁽³⁾ See infra for the facts and analysis of Clarence.

⁽⁴⁾ In Bennett a man was convicted of indecent assault when he had sexual intercourse with his thirteen year old niece. Although the girl had consented to sleep with him she did not know that he had venereal disease. It was held that the girl’s consent to sexual intercourse was vitiated by her uncle’s fraud. In Sinclair a man had sexual intercourse with a twelve year old girl and infected her with gonorrhoea. It was held that although she consented to sexual intercourse her consent was vitiated because she did not know the man had gonorrhoea. He was thus convicted of inflicting actual bodily harm onto the girl. It is noteworthy in both these cases that the parties were not married. In Clarence the majority held that the position of a married woman was different to that of an unmarried woman since on marriage a woman became subject to marital obligations from which she had no right to refuse her consent; it was implied. Thus, the decisions in Bennett and Sinclair could be differentiated as they involved unmarried young girls.