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Friday, 16 November, 2001, 14:05 GMT
HIV warning after legal ruling
Stephen Kelly
Stephen Kelly was jailed for five years in March
Medical professionals have warned that HIV cases in Scotland could increase by more than a third after an historic legal ruling made it a criminal offence to knowingly pass on the infection.

Academics from the University of California said that some people could be put off taking HIV tests if they know a positive diagnosis could leave them open to future prosecution.

The team's warning came after a man who was HIV positive was convicted earlier this year of culpably and recklessly endangering the life of his former girlfriend by having unprotected sex with her.

The experts want the Scottish Executive to carry out a review of medical and legal procedures to ensure that people are not put off taking HIV tests.

Anne Craig
Anne Craig said Kelly did not reveal his condition
A report in the British Medical Journal (BMJ) by American academics, Sheila Bird and Professor Andrew Leigh Brown, said that the ruling may unwittingly increase HIV infection as it has "criminalised undeclared, but not untested, HIV transmission".

The report stated: "Notification of partners can alert these people to their risk of HIV infection, but they can refuse an HIV test and thereby, despite knowing their high HIV risk, transmit infection with impunity before the law."

The report warned that as a result of the ruling the number of people testing positive for HIV could increase significantly.

It said: "If uptake of HIV tests fell as low as 40% new sexually transmitted infections might almost double."

The court case at the centre of the report's findings involved Stephen Kelly, 33, from Provanmill, in Glasgow.

New infection

In February, a jury at Glasgow High Court found him guilty of having unprotected sex with 34-year-old mother-of-three Anne Craig, even though he knew he was HIV positive.

Kelly was one of 14 inmates at Glenochil Prison, Clackmannanshire, who tested positive for the virus in 1993 after sharing needles with other drug users.

He became the first person to be tried under Scots law for culpable and reckless in infecting Ms Craig and was jailed for five years.

Referring to the case, the report in the BMJ said: "Miss Craig had hoped to prevent even one new infection.

High court sign
Kelly faced a nine-day trial in Glasgow
"By contrast, the figure shows the plausible scenarios for reduced uptake of HIV tests by people infected with HIV, who may now be more reluctant to be tested.

"A 25% decrease in uptake of HIV testing by those who are infected could result in more than a one third increase in new sexually transmitted HIV infections - even if, in accordance with the Glenochil judgment, those tested always disclosed their infection to sexual partners."

The authors of the report have called on the Scottish Executive to take action to prevent a potential increase in the spread of the virus.

They said: "We urge Scotland's health minister to commission the necessary measurements to guide medical and legal decision making.

"This is a more responsible approach than waiting passively until we have evidence that infectious harm has been done."

The report concluded: "Far from protecting the public, the Glenochil judgment has endorsed abrogation of individual responsibility in sexual partnerships by asserting a legal duty of disclosure on the infected partner."

'Tackle complacency'

A Scottish Executive spokesman said: "We will consider whether the issues raised by the study published in the British Medical Journal require advice or guidance to be issued.

"This case should not deter people from going for HIV testing however, we fully recognise the need to work to tackle any complacency that might exist regarding HIV and other sexually transmitted diseases.

"That is why, in January this year, the executive stepped up the fight against this modern epidemic with a 7m investment in initiatives to tackle HIV/Aids and other sexually transmitted diseases."

 WATCH/LISTEN
 ON THIS STORY
Home Affairs Correspondent Reevel Alderson
"Kelly was charged with wilful and reckless behaviour"
Reevel Alderson reports
"The researchers want the Scottish Executive to look at whether the law should be changed"
See also:

16 Nov 01 | Scotland
HIV case 'a lesson for sufferers'
16 Mar 01 | Scotland
HIV case man jailed for five years
16 Mar 01 | Scotland
HIV victim says justice done
22 Feb 01 | Scotland
'No crime' claim in HIV trial
21 Feb 01 | Scotland
Court hears HIV 'admission'
20 Feb 01 | Scotland
Woman 'did not condemn' HIV man
16 Feb 01 | Scotland
Woman denies knowing man had HIV
15 Feb 01 | Scotland
Boyfriend revealed he had HIV
14 Feb 01 | Scotland
HIV man 'given safe sex warning'
13 Feb 01 | Scotland
HIV 'infection' trial begins
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