mishandling criminal HIV transmission

Edwin J. Bernard for Aidsmap (January 28, 2009)

Report shows police mishandling of investigations into alleged criminal HIV transmission

A new report by the UK’s Terrence Higgins Trust (THT) launched on Tuesday at the House of Commons has revealed a systematic mishandling of complaints for alleged criminal HIV transmission in England & Wales. The report, Policing Transmission was welcomed by the Association of Chief Police Officers (ACPO), which acknowledged that “too many times we have got it wrong".

There have been “scores, if not hundreds” of arrests since the first conviction for reckless HIV transmission in England and Wales, that of Mohammed Dica in October 2003, noted THT's Sir Nick Partridge.
Sir Nick said that whilst most police investigations had been dropped due to a lack of evidence, during the course of these ‘failed’ investigations - which had lasted up to a year - “lives had been turned upside-down and some came close to being destroyed”.

During the period 2005-6, there was an average of one arrest every two weeks. Concerned at this number of arrests and aware of the cost, in terms of “public resources and private misery”, THT approached ACPO and the Metropolitan Police Service (MPS) in order to examine the role of the police in criminal HIV transmission investigations.

This resulted in detailed, but anonymized, police notes from six cases that occurred between 2004 and 2007 (some prosecuted, some not) being made available to a community advisory panel that included representatives from HIV civil society organizations
The panel found that although there were some examples of good practice, much more was found to be lacking, including:

• · A poor police understanding of HIV, leading to inappropriate management of cases.
  
  
• · A lack of clarity amongst police officers about the current law, and what is, and what is not, an offense. (THT is aware of many investigations following allegations of unprotected sex without disclosure where there was no transmission, which is not an offense in England & Wales.)
  
  
• · Unnecessarily long and drawn-out investigations, ranging between four and twelve months for cases that did not result in prosecution, and between six and 34 months for those that did.
  
  
• · Difficulties in reconciling the realities of HIV transmission with the requirements of the charge. The report points out that “police are having to manage cases brought under a law never designed for such scientific complexity” and notes that the police “repeatedly misinterpreted the strength of their scientific evidence”.

The report makes a total of 19 recommendations, including:

• · A dedicated police officer should be trained and made available in each force. This officer would specialize in criminal HIV transmission complaints and investigations.
  
  
• · Easy to understand guides to HIV transmission, disclosure, and the law should be written and made available to every police officer.
  
  
• · A series of standard questions should be developed to establish at an early stage whether a viable case exists.
  
  
• · Wider investigations beyond the original complaint should only take place once it is established that the original complainant is HIV-positive themselves.

At the launch Sir Nick eloquently put a human face on the report by highlighting three cases known to THT which reveal how difficult, complex and sensitive allegations of reckless HIV transmission are for all parties involved, including the police.

‘David’ was accused of recklessly infecting two men and, following his arrest, was held in custody for several months and refused bail because the police erroneously believed he was “a danger to the public”. After phylogenetic analysis had been performed on all three men, it became clear that ‘David’ could not have been the source of either man’s infection, the case was dropped and 'David' was finally released from custody.

‘Cesar’ discovered he was HIV-positive when police arrived on his doorstep to arrest him for reckless HIV transmission. (Since one of the prerequisites of this ‘crime’ is to be aware of one’s HIV diagnosis, there were, of course, no grounds for the complaint or his arrest.)

‘Elizabeth’ accused her married lover of recklessly giving her HIV and complained to the police. However, charges were dropped after months of investigations, which included detailed sexual histories and the release of sensitive medical records, since the evidence suggested that ‘Elizabeth’ had, in fact, infected her lover.

Sir Nick said that the report suggests that all complaints and investigations were done in good faith, but that in almost every case, the lead officer had neither enough knowledge of HIV issues, nor anywhere to turn for guidance.

He added that although the police appear to have an understanding of HIV that is “at least ten years out of date", this is not unique to the criminal justice system and is more a reflection of the general public’s lack of knowledge and attitudes about HIV.

Policing Transmission: A review of police handling of criminal investigations relating to transmission of HIV in England & Wales, 2005-2008.
Terrence Higgins Trust
Link to Policing Transmission [pdf]

Link to Aidsmap article