LAW COMMISSION SCOPING CONSULTATION PAPER: REFORM OF

OFFENCES AGAINST THE PERSON

Submission from Edwin J Bernard, co-ordinator, HIV Justice Network
11 February 2015
Thank you for the opportunity to comment on the Law Commissions scoping
consultation on Reform of Offences Against the Person.
As an advocate for people living with HIV (having been living with HIV myself
for three decades); an author of a number of books1, a peer-reviewed paper2,
numerous articles3, presentations4 and reports5 on the issue; as a consultant
on the most recent guidance from UNAIDS on limiting the overly broad use of
the criminal law in relation to HIV non-disclosure, exposure and transmission6;
and as co-ordinator of the HIV Justice Network7 I appreciate the efforts of the
Law Commission in consulting with a number of key stakeholders, including
myself, whilst preparing this paper, and hope that these efforts result in a
full review that will further limit the role of the criminal law in relation to
prosecutions for sexual disease transmission, to intentional
transmission only, in order to protect both public health and human
rights.
My comments relate exclusively to HIV. Although the application in England
and Wales of the Offences Against the Person Act 1861, since 2003, is to
sexual transmission of any disease, prosecutions and case law have
almost exclusively been for reckless HIV transmission. Accordingly, I will
focus only on responding to the final six questions (33-38) in Chapter 6.

1

Criminal HIV Transmission (NAM, 2007) and HIV and the Criminal Law (NAM, 2010)
Bernard EJ et al. HIV forensics: pitfalls and acceptable standards in the use of phylogenetic
analysis as evidence in criminal investigations of HIV transmission. HIV Med. 2007
Sep;8(6):382-7.
3
See, for example, Nadja Benaissa's HIV trial is a distracting sideshow. The Guardian, 17
August 2010, and my blog (2007-12), http://criminalhivtransmission.blogspot.co.uk/
4
See, for example, Criminal prosecutions for HIV non-disclosure, exposure and transmission:
overview and updated global ranking at 19th International AIDS Conference, Washington DC,
July 22-27, 2012. Available to watch at: http://vimeo.com/46807432
5
See, for example, Advancing HIV Justice (Global Network of People Living with HIV/HIV
Justice Network, 2013), available at: http://www.hivjustice.net/advancing/
6
Background paper and 2013 guidance available at: http://www.hivjustice.net/news/unaidspublishes-updated-detailed-guidance-on-hiv-criminalisation/
7
A global information and advocacy hub for individuals and organisations working to end the
inappropriate use of the criminal law to regulate and punish people living with HIV. See:
http://www.hivjustice.net
2

I would like to especially note that the scoping paper did an excellent job
summarising the problems and policy issues relating to the overly broad use
of the criminal law in relation to sexual disease transmission (6.36-6.58).
However, whilst it is true that "the law in England and Wales comes fairly
close to the recommendations of UNAIDS" (6.58) and the English and Welsh
meaning of recklessness is "not far from what some other countries regard as
intention" (6.58) that is not the same as the UNAIDS interpretation of intent:
i.e. where a person knows his or her HIV-positive status, acts with the
intention to transmit HIV, and does in fact transmit it.
I will now, briefly, attempt to answer the consultation questions relating to
sexual disease transmission. I have also seen, and been consulted on, the
submission from NAT (National AIDS Trust) and concur completely with, and
fully support, their more detailed response.
Consultation question 33
We consider that future reform of offences against the person should take
account of the ramifications of disease transmission. Do consultees agree?
I agree that any future reform of offences against the person should take
account of disease transmission. Any wider review of the law and disease
transmission should still form part of the review of offences against the person
conducted by the Law Commission. No legislation reforming offences against
the person should be enacted before its application to, and implications for,
disease transmission are determined. For the law more generally to be
changed without first determining how it applies to disease transmission
would cause immense confusion and harm.
Consultation question 34
We also consider that in such reform consideration should be given to:
(1) whether disease should in principle fall within the definition of injury in
any reforming statute that may be based on the draft Bill;
(2) whether, if the transmission of sexual infections through consensual
intercourse is to be excluded, this should be done by means of a
specific exemption limited to that situation. This could be considered in
a wider review; alternatively
(3) whether the transmission of disease should remain within the offences
as in existing law.
Do consultees agree?
I believe that reform consideration should be given to ending all prosecutions
for reckless transmission of disease. In addition there are problems in reform
considering reckless transmission in the way proposed in the question.
I do not see why, notwithstanding the concerns raised at 6.68 ("it would go
further than required to meet these recommendations") the wording of the
draft Bill could not be adopted as it stands, so as to exclude disease from the

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definition of injury except for the purposes of the offence of intentionally

causing serious injury.
Given that the scoping paper concedes that the criminal law plays very little, if
any, role in deterring individual or general behaviour related to sexual disease
transmission, there is no real justification not to follow UNAIDS guidance in
this area.
I would specifically like to comment on assertions made in paragraph 6.69
["If the 1998 Bill was considered as a reform option worth pursuing, it would
need further consideration to ensure that the criminal law could protect
against reckless transmission of infection otherwise than by consensual
sexual intercourse".] and paragraph 6.79 ["...it would leave a gap in the law far
wider than necessary to accommodate the concerns mentioned."]
It would still, in my view, be possible to punish reckless transmission of
disease during the commission of a sexual assault, or reckless infection of a
communicable disease during the commission of a physical assault (when, for
example, a needle/syringe is used as a weapon) through sentencing
enhancements.
Paragraph 6.69 continues as follows. "In addition, if the 1998 Bill was to be
developed in a further law reform project, a detailed review would be
necessary since professionals in the relevant fields are by no means
unanimous. This review would have to consider both the consequences for
public health policy and the broader ethical question of whether public health
considerations should be the main policy factor. Pending such a review, the
safer course might be for the new offences to follow the broad principles
governing offences against the person, and preserve the breadth of the
present law."
Given the detailed overview of the problems and policy issues relating to the
overly broad use of the criminal law in relation to sexual disease transmission
(6.36-6.58), the lack of complete consensus by the minority of "professionals
in the relevant fields" does not suggest to me that there needs to be further
examination of the "consequences for public health policy and the broader
ethical question of whether public health considerations should be the main
policy factor." It is evident to me and UNAIDS and most other informed,
clear thinking experts on this issue that if the criminal law in this area does
not consider public health above and beyond any other consideration (i.e.
deterrence, punishment, ethical norm creation) then it does more harm than
good.
Consultation question 35
If the transmission of disease is to be included in any future reform including
offences causing injury, it will be necessary to choose between the following
possible rules about the disclosure of the risk of infection, namely:
(1) that D should be bound to disclose facts indicating a risk of infection
only if the risk is significant; or

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(2) that D should be bound to disclose facts indicating a risk of infection in

all circumstances; or
(3) that whether D was justified in exposing V to that risk without disclosing
it should be a question for the jury in each particular case.
Do consultees have any preference as to these possible rules?
Choosing only between these three scenarios is, in fact, a 'red herring'.
Currently, disclosure is not bound under any circumstance, but is available as
a defence to recklessness if sexual transmission of disease is alleged to have
taken place. Consistent with UNAIDS guidance, I do not support any legal
requirement to disclose ones HIV/STI status or any penalty for not doing so.
Consultation question 36
We consider the reform of offences against the person should consider the
extent to which transmission of minor infections would be excluded from the
scope of injury offences. Do consultees agree?
I agree that the reform project should consider the extent to which minor
infections are excluded from the scope of injury offences.
Consultation question 37
Do consultees consider that future reform should pursue the possibility of
including specialized offences of transmission of infection, endangerment or
non-disclosure?
I do not believe that the Law Commission full review should consider the case
for new specialized offences of transmission of infection, or of endangerment
or non-disclosure. I am pleased to see this is also the view of the Law
Commission in its scoping paper and strongly encourage this position to be
maintained in the final submission to Government and into the full review,
should that take place.
So far, England and Wales has led the world in the development of policy in
this area (in the absence of legislation limiting the overly broad use of the
criminal law) with the creation of prosecutorial and police guidance. It would
be disastrous to the global standing of England and Wales as both a leader in
pragmatic policy, and in supporting the public health and human rights of
developing countries through investment in HIV and health systems via DFID,
if the law relating to sexual transmission of disease were expanded to include,
for example, prosecutions for non-disclosure or potential or perceived
exposure.
Having monitored international law and policy in this area for the last decade,
it is worth noting that criminal law reform relating to sexual transmission of
disease has always further limited the role of the criminal law, and not further
expanded it.8

8

See, for example, Chapter 9: 'Advocating for law reform' in Advancing HIV Justice, op cit.

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For example, in February 2011, Denmark suspended Article 252 of the

Criminal Code pending an inquiry by a government working group to consider
whether the only HIV-specific law in western Europe should be revised or
abolished.9 There had previously been at least 20 prosecutions and at least
15 convictions for either sexual HIV exposure or transmission under Article
252, including two as recently as 2008.10 The courts are now in the process of
reviewing all HIV-related criminal cases from 2007 the year that National
Board of Health informed the Ministry of Justice that HIV was no longer a lifethreatening illness.11
The law was suspended because the National Board of Health had informed
the Ministry of Justice that HIV was no longer, as the law specified, a lifethreatening and incurable disease, citing data from a Danish cohort study
published in 2007 which found that for people living with HIV in Denmark who
are on treatment, HIV had become a manageable, chronic health condition.12
The working group confirmed in November 2011 that the legal basis for the
current statute no longer existed and recommended its repeal. As of writing,
no new law has been enacted, and is unlikely to be enacted, as time has
shown that the 'sky does not fall' when it is not possible to criminally
prosecute sexual disease transmission. In fact, new HIV infections in
Denmark have fallen since 2012 and are expected to continue to do so.13
Similarly, law reform that has further limited the use of the criminal law to
prosecute sexual disease transmission has recently taken place in
Switzerland in 2012-201314 and Iowa (United States) in 201415, and is
proposed for Victoria (Australia) in 201516.
Consultation question 38
Do consultees have observations on the use of ASBOs, SOPOs or other
means of penalizing non-disclosure?

9 HIV Justice Network. Denmark: Justice Minister suspends HIV-specific criminal law, sets up
working group. 17 February 2011.
10 Global Criminalisation Scan: Denmark. GNP+, October 2012
11 HIV Justice Network. Denmark: Man convicted in 2007 under now suspended law
acquitted; further cases to be reviewed. 8 August 2012.
12 Lohse N et al. Survival of persons with and without HIV infection in Denmark, 1995-2005.
Annals of Internal Medicine: 146: 87-95, 2007.
13
Statens Serum Institut. HIV infection rates are higher abroad than in Denmark. 7 November
2013. Available at: http://www.ssi.dk/English/News/News/2013/2013 - 11 - EPI-NEWS 44 HIV
2012.aspx
14
HIV Justice Network. Switzerland: New Law on Epidemics only criminalising intentional
transmission passed in lower house, March 9, 2012, available at:
http://www.hivjustice.net/news/switzerland-new-law-on-epidemics-only-criminalisingintentional-transmission-passed-in-lower-house
15
HIV Justice Network. Iowa Governor Terry Branstad signs Contagious or Infectious
Disease Transmission Act, replacing draconian, unscientific HIV-specific law, May 31, 2014,
available at: http://www.hivjustice.net/storify/iowa-governor-terry-branstad-signs-contagiousor-infectious-disease-transmission-act-replacing-draconian-unscientific-hiv-specific-law
16
Law Institute Victoria. Announcement to amend s 19A of the Crimes Act 1958 (Vic),
September 1, 2014, available at: http://www.liv.asn.au/For-Lawyers/Sections-GroupsAssociations/Practice-Sections/Criminal-Law/Submissions/Announcement-to-amend-s-19Aof-the-Crimes-Act-1958?glist=0&rep=1&sdiag=0

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CPS Legal Guidance on Ancillary Orders makes clear that it is unlikely that it
will ever be appropriate to apply a SOPO because they are to protect the
public from future sexual offending and the transmission offence is not a
sexual offence. Furthermore, in relation to ASBOs, they cannot be applied to
people who are co-habiting (not of the same household).
In addition, as stated in my response to Q35, consistent with UNAIDS
guidance, I do not support any legal requirement to disclose ones HIV/STI
status or any penalty for not doing so.

Edwin J Bernard/HIV Justice Network

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