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Last Updated: Wednesday, 7 February 2007, 14:25 GMT
HIV convictions exceptional in UK
Giovanni Mola has been found guilty of knowingly infecting his former partner with HIV and Hepatitis C.

James Chalmers, a senior lecturer in law at the University of Edinburgh, looks at the criminal justice system's intervention in HIV transmission cases.

James Chalmers
James Chalmers is a lecturer in law at Edinburgh University

Giovanni Mola's conviction for culpable and reckless conduct at the High Court in Glasgow is a landmark event.

It was only the second ever trial for the transmission of HIV in Scotland and the first ever in the UK for the transmission of Hepatitis C.

Cases such as this are exceptional and there is no flood of prosecutions on the way.

Mola's case comes almost six years after Stephen Kelly's conviction at the same court in 2001, although another prosecution was brought in 2005 but abandoned after the accused was found mentally unfit to stand trial.

Prosecution is, quite rightly, never going to become the "normal" response to HIV transmission.

At the end of 2006, NHS Scotland announced that 405 new cases of HIV infection were diagnosed in 2005 alone, which stands in stark contrast to a total of two trials in six years.

Attempts to halt the rise in sexually transmitted infections are a public health matter in which the role of the criminal justice system is always going to be extremely marginal.

The courts have said clearly that the use of condoms will be a defence to a charge such as this one

A number of convictions in England and Wales, starting in 2003, have followed Kelly's case.

There has been significant concern within the HIV sector about these prosecutions, where it has been argued that they do little or nothing to help limit the spread of HIV, while at the same time adding to the stigma and prejudice which people living with HIV suffer, and potentially deterring people from seeking testing and treatment.

Kelly's case itself was the subject of an article in the British Medical Journal arguing that the fear of prosecution might deter people from taking HIV tests, meaning that the rate of infection would increase.

Those fears may have been overstated - the rate of HIV testing actually increased substantially in Scotland after Kelly's case, although probably for different reasons.

The HIV sector has consistently argued that preventing the spread of sexually transmitted infections must be seen as a matter of shared responsibility in which the courts should not interfere, at least where transmission is reckless - as it has been in all the prosecutions to date - rather than intentional.

One thing that will be of comfort to the sector, however, will be that the Mola prosecution is the first case in the UK where the courts have said clearly that the use of condoms will be a defence to a charge such as this one.

Stephen Kelly
Stephen Kelly was convicted in March 2001

In the end, much of what happened in the Mola case was not in dispute - the defence conceded that Mola knew he had HIV and Hepatitis C and that he had infected Miss X, who did not know that he had either infection.

The jury were therefore required to choose between two competing versions of events - that of Mola, who claimed he had consistently used condoms, and that of Miss X, who claimed that he had persistently refused to do so.

Lord Hodge, the trial judge, directed the jury that unless they believed that Miss X's version of events had been proven beyond a reasonable doubt, they had to acquit.

Ultimately, condoms rather than the criminal law provide the best hope of limiting the spread of sexually transmitted infections.

Mola's trial should be seen as reinforcing rather than undermining that message.

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