The Crown Prosecution Service has suffered
its first bloody nose in its campaign to jail people who infect sexual partners
with HIV. Chris O’Connor, who was at Kingston Crown
court for the not guilty verdict, asks whether it signals the end of prosecutions
for reckless transmission of HIV
Illustration Antonio Maggi
This
summer’s media frenzy surrounding the prosecution and subsequent sentencing
of HIV positive single mum Sarah Jane Porter was unsettling and confusing.
One the scariest aspects of her case was that police launched their investigation
after an HIV negative ex-boyfriend, against whom no crime had been committed,
complained to police. Police went on a six-month fishing exercise, trawling
through her Filofax and mobile phone in the hope of turning up ex-lovers with
HIV.
As Martin Wijnen, an HIV positive man who helps run heterosexual support group
Str8Talk put it: “We know the risks and we are the ones who have to
be careful. I’ve heard people talking about ripping up old diaries.
They are also wondering about phone company records. If it wasn’t so
scary it would be ridiculous.”
Like others before her, Sarah was prosecuted, convicted and jailed under Section
20 of the Offences against the Person Act (1861) for reckless transmission
of HIV. During the case, Sarah and her child faced TV crews outside their
home; paparazzi snaps of her on the cover of celebrity gossip magazines and
in the national papers.
Since the much publicised Dica and Konzani cases opened the floodgates to
further prosecutions, the Crown Prosecution Service (CPS) and police have
been on something of a mission to root out HIV ‘wrong-doers’.
According to Terrence Higgins Trust, who have tracked reported cases over
the last year, there were 24 separate police investigations into alleged cases
of reckless transmission between June 2005 and June 2006.
Hard on the heels of the Porter case came the first ever prosecution of a
gay man for reckless transmission of HIV. Mark James was eventually sentenced
in his absence to three years and four months. He is still on the run from
police and newspapers have carried his mug-shot.
Both Mark and Sarah pleaded guilty to reckless transmission charges in court
in the face of apparently indisputable scientific evidence that linked them
to their alleged victim. That was that, or so we thought.
Another gay case
Some time in July, UK HIV agencies were alerted to a second case of alleged
reckless transmission involving two gay men. But this time there was one big
difference; the defendant had pleaded not guilty from the outset and a trial
was listed at Kingston Crown Court, more than two years after the original
complaint to police. In the dock was a young gay man accused of infecting
his ex-partner. Their split was acrimonious. Fresh from his successful prosecution
of Mark James at Isleworth Crown Court, a few miles down the road, prosecution
barrister Mark Gadstone was confident. After all, the CPS had not lost a single
case involving reckless transmission of HIV.
Misplaced confidence
Gadstone had regularly used expert testimony on the virological link between
defendant and the ‘victim’ to prove his case and he had no reason
to think this case was going to be any different. Virological evidence was
crucial for successful prosecution and the CPS knew it. Back in 2003, a CPS
press release issued after the Mohammed Dica verdict stated: “The prosecution
initially went ahead on the strength of the two victims’ evidence. But
what proved crucial to obtaining a conviction was the medical and scientific
evidence. The key to linking Dica with his victims lay in finding a virologist.”
They eventually found Professor Peter Simmonds, of Edinburgh University, who
agreed to run the tests which proved all three shared the same strain: sub-type
A, a sub-Saharan strain, and on the back of this Mohammed Dica got ten years.
Scientific evidence put to the test
Matthew Weait, barrister and law lecturer at Keele University, said: “This
sort of scientific evidence should always be tested in the courts and to enable
this to happen, those charged with reckless transmission should think long
and hard before automatically pleading guilty. In Kingston, both these criteria
were met and, perhaps for the first time, the defence team was fully briefed
and fully prepared.
“It was a marvellous legal team, very well supported,” adds Lisa
Power, head of policy at THT.
The jury was given a blow-by-blow account of the complainant’s sexual
history, before, during and after his diagnosis, prompting Power to draw parallels
with tactics used in rape trials. “Both accused and the accuser can
expect to have their sex lives rubbished; with both sides on the attack. It’s
not a desirable situation.”
Then the defence called its own expert witness, Dr Anna-Maria Geretti, consultant
virologist at London’s Royal Free Hospital.
Shaking the virological tree
According to Dr Geretti, if virological
evidence is to be used against somebody in a court of law, a number of criteria
have to be met: “The way samples are handled, the number of samples,
the number and quality of labs used; whether the controls and the blinding
are rigorous and the bootstrapping testing is rigorous.”
Giving her expert evidence in the Kingston case, Dr Geretti told the court
these criteria for procedures were not met.The prosecution experts had used
something called ‘viroligical trees’ to compare the two viruses.
This is a method of phylogentic testing where control samples of HIV are taken
from the complainant’s local geographic HIV positive population. By
examining the strains in the accused, the complainant, and the control samples,
they hope to show that the viral RNA from these samples is more closely aligned
than samples from other patients in the area.
Evidence but not proof
“This is very important,” Geretti told PN. “Trees don’t
prove transmission. Phylogenetic testing proves a person has a similar virus
to another person. If there is a chain of transmission, both A and B could
have been infected by C. The more partners there are, the more difficult it
is to isolate a connection between two samples.” Even then, she says,
they have to be considered as part of the overall case; another piece of forensic
evidence to put before the jury.
“Virological evidence alone is not appropriate. It has to be used in
the context of the evidence,” she stresses. But Geretti, who is helping
the National Aids Trust (NAT) write a briefing document on the subject, warns
that, in the right circumstances, virological evidence can still be legitimately
used in court.
Testing can also sometimes show the ‘directionality’ of infection;
in other words, who gave the HIV virus to whom, especially if the tests are
conducted properly and with the latest sophisticated testing, adds Geretti.
She points to the US case of State of Louisiana v Richard Schmidt some nine
years ago which set extremely vigorous standards of virological analysis and
has been used as a test case and touchstone ever since.
No winners, no losers
After summing up in the Kingston case, Judge Benning sent the jury out to
consider their verdict. But then, in a dramatic turnaround, called them back
saying he had reconsidered his original summing up. After re-checking the
expert testimonies, the Judge said it was a ‘clear possibility’
the complainant could have been infected at another time and by another source
than the defendant.
“I have to be of the view that the evidence is a safe foundation for
a decision. Therefore I am duty bound to direct you to acquit,” he said.
Jubilation in court was muted, as there were no real winners or losers and
the already limited media interest the case ebbed quickly once it became clear
there was no one to pillory. In fact, PN was the only publication present
at the verdict.
Truth and consequence
The significance of the Kingston case is still being absorbed. According to
Yusef Azad of NAT, it was a landmark case. “It is very significant;
people have been under pressure to plead guilty because of a virological report.
People have also pleaded guilty because they feel guilty; someone they have
been intimate with sexually has become HIV positive. But in a way they are
pleading guilty to something even they cannot know for sure they were the
cause of. There are no witnesses at the time of a viral infection.
“There is a tendency for scientists to stick to the facts; they see
a match in a test and they call it a match. They are reluctant to discuss
chance and probability as Dr Geretti did,” he added.
Whether Kingston marks the high tide of prosecution cases remains to be seen,
but it’s doubtful whether the CPS can continue to prosecute with the
same alacrity after the recent debacle. Matthew Weait thinks not:
“In many cases the person who brings the prosecution will have had sexual
relationships with others, and it is always possible that they may have been
infected by someone other than the defendant. And the fact that the defendant
and the complainant have the same HIV sub-type does not necessarily prove
anything.
“I think the Kingston decision should give everyone involved in the
development of these prosecutions pause to think about what is actually presented
as evidence of transmission.” Catherine Dodds of Sigma Research said:
“The police, prosecutors, judges and juries (not to mention the complainants
and defendants) all need significant support to understand exactly what scientific
tests can and cannot demonstrate,” she added.
Bernard Forbes, UKC chair, said that if there was one clear message from the
case it was this: "If evidence linking transmission has been undermined,
and I think it has, anyone who pleads guilty on the basis of the “overwhelming"
evidence the CPS presented should perhaps think again."
The CPS would not be drawn on how future policy would be affected or whether
they were expecting a flurry of appeals post-Kingston. Spokesman Russell Hayes
said: “The CPS can’t say how we will proceed. Each case is decided
on its own merits. We look at every judge directed acquittal and feed it into
the policy making procedure.”
More of the same?
Some have suggested the CPS may now go back to prosecuting cases where the
people involved have had very few definable sexual partners and away from
trying to prosecute gay men who may have active sex lives with perhaps multiple
partners. To succeed in future they will probably have to fall back on pushing
through cases where they can push an image of a stereotypical villain, like
a ‘predatory’ man or asylum seeker. NAT in the past has described
these people as “easy-to-prosecute” and “politically unsympathetic”.
Chris Morley, policy coordinator at Manchester’s George House Trust,
said: “It is always people at the bottom of the social heap who are
most likely to end up in court and get the rough end of the stick. People
facing prosecution need to find lawyers who will fight tooth and nail and
adopt a critical human rights approach to their criminal defence work.
“Their legal teams must be willing to talk with, listen too and be guided
by the sector's huge expertise in HIV and the complex legal issues,”
he added.
One uncomfortable fact is that the
virological evidence was not challenged earlier and that it may have come
too late to help people already serving prison sentences. This happened partly
because many were represented by lawyers with little or no understanding of
HIV and how it is transmitted sexually and who automatically assumed the scientific
evidence was incontestable.
Another observer, who asked not to be named, criticised the HIV sector for
failing to go on the offensive earlier, agencies who were sometimes in the
difficult position of offering support to both sides in a dispute, though
this is rejected by Yusef Azad who said the sector was united in the Kingston
case. “A lot of groups came together on this; we are making a difference.”
PN’s ten top tips for staying out of jail
• Don’t rush to plead guilty
• Get a good lawyer; ask leading
HIV agencies for advice
• Burn diaries documenting sexual exploits
• Ditch the little black book with
contact details of lovers
• Where possible, disclose to partners
• If you can’t disclose, wear a condom
• Always use condoms properly as it could weaken your defence in court
• Don’t assume medical confidentiality is above the law; it’s
not
• Be careful about what info you post on internet/chat sites (eg, Gaydar)
• Avoid acrimonious splits
with partners
Consultation or PR?
Last month, the CPS finally launched its consultation on prosecution policy
for cases involving sexual transmissions of infections which cause GBH (Grievous
Bodily Harm). The draft policy does not reflect the outcome of the Kingston
case. Read the document at www.cps.gov.uk/news/consultations/sti_policy.html
If you wish to contribute to the consultation, visit the UKC website at www.ukcoalition.org/law
to have your say. Responses have to be received before 3 November 2006.
The CPS are not bound by this consultation and it has already consulted parts
of the HIV sector. As one activist involved said: “It was getting hard
to tell whether we were helping the CPS understand the issues involved with
HIV or were actually helping them to prosecute their cases. It was more of
a PR exercise than a consultation.”
Others felt sector involvement had helped soften some the CPS approaches;
pointing to the less hostile language used by the prosecutor in the Kingston
case. But UKC chair Bernard Forbes disagreed: “The UKC position on the
draft policy is that we wasted our time going to all the meetings just to
be ignored.” Edwin J Bernard of NAM said the document made depressing
reading and signalled the possibility of future
prosecutions focusing on monogamous relationships.
