Prosecutors Behaving Badly with Gonorrhoea
posted: 29/04/2009
In an odd set of circumstances, a man has been convicted for passing on gonnorrhoea to the two daughters of his partner. He was originally charged with child sex offences. Then with grievous bodily harm (GBH) at a retrial. The Court of Appeal became involved and has now issued a worrying judgement. We discuss what happened and what it may mean for people living with HIV.
The Crown Prosecution Service (CPS) has Guidelines and a Policy about prosecuting the sexual transmission of diseases. This says how it will deal with HIV prosecutions, and prosecutions for passing on almost every other sexually transmitted infection. Until recently, the CPS had only prosecuted HIV transmission.
Late last year it broke its own rules and was then able to get a conviction for hepatitis B transmission. Now it has broken its own rules again and so obtained a conviction for, supposedly non-sexual, transmission of gonorrhoea, the clap. And like the hepatitis case, this one also involves a migrant, and the use of deportation as part of the punishment.
Policy review time
The CPS promised to review how its policy and guidelines are working after one year. The evidence suggests that the CPS break their own policy and guidelines in both HIV and non-HIV cases. HIV and other organisations are now seeking to hold the CPS to account for its actions and to update policy and practice, by including for the first time, specific guidance about prosecuting young people with HIV. A recent conference concluded unanimously that young people with HIV are especially vulnerable and so should not be prosecuted for HIV transmission, in the public interest.
The bad law case of gonorrhoea
Dr Matthew Weait, a senior law lecturer and author of the leading law book on HIV transmission cases criticises the recent CPS prosecution of this male migrant for 'recklessly' transmitting gonorrhoea, through non-sexual means. You can read his full analysis on Edwin's fine criminalisation blog. We've summarised and explained it here.
Appealing about gonorrhoea
The Court of Appeal dealt with an appeal about the sentencing in a transmission of gonorrhoea case. As far as we know the man does not have HIV, but he did also claim to have severe thrush. Because it is a Court of Appeal decision, it is legally binding on lower courts in similar cases in future. That is why the implications are worrying.
However George House Trust's view is that for the moment nothing is likely to change in the way reckless HIV transmission is prosecuted.
Child sex offence charges
This man was charged with two offences of sexual activity with children, under the Sexual Offences Act 2003. It was said he had met the mother of the children (E and Z), started a relationship and moved in with her in September 2005. In November 2005 he was diagnosed with gonorrhoea, and was treated. A month later, in December 2005, the children were diagnosed with gonorrhoea. He was charged, prosecuted and tried in 2007, after child E complained of sexual abuse.
The jury could not agree on a verdict after he claimed he did not have gonorrhoea at the time alleged, but a severe form of thrush instead. A retrial was arranged for June 2007.
Pre-trial deal
Before the retrial, the defence told the CPS he would plead guilty to two counts of recklessly inflicting grievous bodily harm (GBH) on the basis that he had recklessly transmitted gonorrhoea to the children. GBH is the charge that is used in HIV transmission cases. He claimed it was his poor personal hygiene - he hadn't washed his hands before touching them "in an ordinary way," and that gave them gonorrhoea. He accepted he was reckless because he knew the risk of transmission and didn't take precautions.
Sentenced
He was sentenced at the retrial, to two years jail for each offence. He was also recommended for deportation, disqualified from working with children for life, and made subject of a Sexual Offences Prevention Order.
He appealed on a number of grounds, one of which was that he had pleaded guilty to offences that were not medically possible and another that, even if it were medically possible, he had not acted recklessly. The Court of Appeal agreed that the sentence was excessive and substituted a sentence of 12 months for each offence, both to be served at the same time. For legal reasons the order not to work with children was set aside, but the other orders were kept.
What's the problem?
This is a worrying decision for a number of reasons. He pleaded guilty to GBH on the basis that the gonorrhoea had been passed through casual touching. It was accepted that he provided care for E and Z which included touching. The Court of Appeal nonetheless confirmed the Sexual Offences Prevention Order, and worryingly went on to say that
" … he must have been accepting the possibility that in a domestic .... setting the disease could have been transferred. In such circumstances it would have been his duty to take the necessary protection to ensure there was no transference. We are not persuaded that there is anything in that ground of appeal." [George House Trust italics]
The first concern is that the Court is saying there is a duty to take the necessary precautions against any means of transmission of the disease. Matthew points out the principles behind the English law on recklessness don't require necessary precautions. Not taking precautions doesn't make you reckless in law; the essential point is you have to be aware of the risk of harming someone to be reckless. This might seem like being picky, but it is an important point. If the Court wanted to emphasise the duty all carers have towards children, then it should have said that clearly and not distorted the principles of recklessness to fit that duty of child care.
Does it mean use a condom?
Because the Court did not state clearly that there is no legal duty to take any precautions against the non-sexual transmission of gonorrhoea, the Court implies that a person living with HIV has a duty – meaning you could be taken to court if someone becomes infected – to prevent onward transmission to sexual partners. And, following the recent Hep B case, people with Hep B may also now have a duty to warn others not to share their razors, for example.
This ruling implies a duty to use a condom, or otherwise ensure HIV (or any other STI) is not transmitted.
This goes much further than the Appeal Court's rulings in the first and second HIV prosecution cases in England and Wales (Dica and Konzani) in which the Court set out the legal points that must be satisfied in cases of reckless HIV transmission.
Using condoms shows you are not being reckless
The CPS Guidelines on prosecuting cases of sexual transmission mean that a person who used condoms properly is not recklessness and should not be prosecuted, even if their partner became infected. These Guidelines do NOT (because the law on recklessness does not require it) say a person living with HIV must use a condom, nor does the law require a person to tell their partner. (Only if transmission happens is it reckless if you didn't get the person's informed consent first).
Wrong charge leads to errors all round
The retrial for a different offence - GBH - seems to have been a bad solution for a different problem. The defence suggested GBH and it seems the CPS agreed because it wanted to avoid making child E give evidence in court again. Instead of a retrial under the Sexual Offences Act, they twisted things to try to fit the circumstances to the Offences Against the Person Act. It led the Court of Appeal to some strained reasoning and misinterpretation of the legal principles of recklessness.
The knowledge and science gaps
Finally, although the Court of Appeal didn't discuss it, there's the thorny question of what he really knew about gonorrhoea transmission and whether there is scientific evidence to support gonorrhoea transmission by unwashed hands to children.
- He moved in with the 2 children and their mother in September 2005. He was diagnosed with gonorrhoea in November 2005 and the children in December 2005. When did he know or find out he could pass on gonorrhea by poor personal hygiene? Did the clinic tell him then, or was he led to say this by his solicitor at the time of the trial? Whatever the case, the dates mean it is possible he may have infected the children before he was diagnosed, or before he had any reason to believe he might have gonorrhoea. If so the case should have been thrown out. The Appeal Court, in the HIV cases of Dica and Knozani, ruled you have to know you have the STI to be reckless.
- Since the Court of Appeal accepted that gonorrhoea was transmitted because he didn't wash his hands before touching the children, the prosecution guidelines expect any other potential sources to be ruled out. No other sources were looked for, and none were considered.
- No scientific evidence was produced to back up the claim that the gonorrhoea was passed to the girls by his unwashed hands - a variation on the proverbial toilet seat excuse. It is certainly possible, but nonetheless international consensus guidelines state that gonorrhoea infection in pre-pubertal children is always, or nearly always, sexually transmitted. This man was originally charged with sexual offences against the two girls after one complained of abuse. He was not the girls' father. The Appeal Court confirmed the Sexual Offences Prevention Order.
One review of gonorrhea transmission tells us
"Spread of infection can occur via contaminated hands of infected caregivers. While all paediatric cases of gonorrhoea must be taken seriously, including contact tracking and testing, forensic medical examiners should keep an open mind about possible means of transmission. Doctors and lawyers need to be cognisant of the large body of literature demonstrating both sexual and non-sexual means of transmission of gonorrhoea in children." Goodyear-Smith, J. Journal of Forensic and Legal Medicine, 2007
Where's the 'compelling proof'?
The CPS Guidelines make it clear that there needs to be compelling proof that the defendant is the source of the infection – and (critically) that guilty pleas should not be accepted unless the prosecution believes that there is sufficient evidence to prosecute. Cases involving HIV transmission have fallen because of lack of scientific proof. The science for proving gonorrhoea transmission is probably as problematic as it is for HIV - and different because gonorrhoea is bacteria, not a virus. There is no indication that proof of transmission was even investigated in this gonorrhoea case.
This case is another example of the ways in which the CPS has failed to follow its guidelines and not thought its actions through properly, and this tripped up the Appeal Court. Trying to ensure that a man accused of child sex offences goes to jail for something, anything, may end up further restricting people with HIV or other STIs.
George House Trust comment - don't worry
Although Matthew argues that the Court of Appeal seems to have extended the law of HIV (and STI) transmission to mean that people living with HIV have an active duty to prevent transmission by some means - using a condom is the obvious solution - we don't think people with HIV need worry about this right now.
- Prosecutions should continue to follow CPS policy and guidelines, and these haven't changed. They are under a review at the moment after their first year of operation, and we will keep you informed about this review. We will make sure the CPS notes that this is another case where it failed to follow its own policy and guidelines and this has caused further problems. We will oppose any attempt to toughen the guidelines following this Appeal Court ruling and we expect the rest of the HIV / STI sector will do the same.
- The basic legal principles followed in all types of cases involving recklessness are not changed by this judgement. If the CPS tried to prosecute based on this ruling and and a Crown Court followed this line in a HIV case, it is likely to go to appeal and be overturned.
- HIV cases in England are uncommon and now very hard for the CPS to prove, if they follow their own guidelines. Well-represented recent HIV cases in England have all left the CPS defeated.
Source Matthew Weait's comments on Edwin's criminalisation blog
The Appeal Court judgement [R v Peace Marangwanda [2009] EWCA Crim 60] should be published here
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