Intentional or Reckless Sexual Transmission of Infection

• Introduction and Terminology
• ACPO and National AIDS Trust Investigation Guidance
• Charging Authority and Plea
• Early Advice
• Relevant offences
• Evidential considerations
• Expert evidence
• Public Interest Considerations
• Witness Care Issues
• Court Orders
• HIV and herpes: useful links
• Annex A - Investigation Chronology Template for Prosecutors

Introduction and Terminology

This guidance sets out how prosecutors should approach cases where there is an allegation that the suspect has intentionally or recklessly transmitted an infection to another person during sexual activity. It excludes other methods of transmission, such as shared needle usage.

In this guidance, the term “A” is used to encompass a “suspect” (a person who is not yet the subject of formal criminal proceedings) and a “defendant” (a person who has been charged or summoned). The term “B” is used to describe a person to whom an infection has allegedly been transmitted during sexual activity.

ACPO and National AIDS Trust Investigation Guidance

When giving early advice, prosecutors will find the guidance produced by ACPO and the National AIDS Trust of assistance. Prosecutors should note the evidential flowchart within the guidance and the stages that should be followed during an investigation. Following the flowchart should limit any intrusion to that which is strictly necessary and ensure appropriate collection of evidence.

Charging Authority and Plea

Prosecutors must only authorise charges when the test in the Code for Crown Prosecutors (the Code) is met. These cases are often complex and sensitive, and prosecutors should have regard to the evidential and public interest considerations outlined in this guidance when applying the Code.

To ensure consistency of approach and because of the complexity and sensitivity of these cases, proposed decisions (whether it is proposed to charge or where it is proposed to authorise No Further Action) should be approved at Chief Crown Prosecutor level, who must in turn notify the Director of Legal Services, before any decision is communicated to the police. Any proposal to charge must provide sufficient detail when addressing each evidential requirement set out in this guidance.

Under the Criminal Procedure Rules when the Court is requesting a plea, it has an obligation to explain the allegation in terms that the defendant can understand. A prosecutor should be prepared to assist with this explanation with reference to the relevant evidence, noting the complexity in explaining the evidential foundation of a case using this guidance, if required. Particular care should be taken in exceptional cases which have been charged on the threshold test and/or without notification to the Director of Legal Services.

Early Advice

It is important that these cases are progressed in a timely and effective manner and that prosecutors give prompt advice which addresses logically the points to prove. Any allegation of intentional or reckless transmission of an STI will almost invariably be eligible for early advice in accordance with Chapter 7 and Annex 6 of the Director’s Guidance on Charging (sixth edition).

Each case must be assessed on its own facts and merits. However, prosecutors may find it assists to address the following propositions, which the prosecution must prove, when conducting a review of the evidence and considering whether any further reasonable lines of enquiry should be pursued:

1. B has an STI which is capable of amounting to grievous bodily harm
2. A had a diagnosed STI at the time of sexual activity with B
3. A knew at the material time that they had the STI
4. A intended to transmit the STI to B or foresaw the risk of transmitting the STI but went on unreasonably to take that risk
5. A in fact infected B with the STI.

Proving proposition (5) is likely to involve significant effort to rule out other sources of infection and will involve obtaining expert evidence. Obtaining this evidence pre-charge will be a matter for investigators. However, when providing early advice prosecutors should consider the ACPO and the National AIDS Trust investigation guidance which recommends a staged approach, assessing first whether propositions (1) to (4) are viable, before giving advice about the obtaining of expert evidence.

Prosecutors should not seek expert advice or evidence until they have first established through other reasonable lines of enquiry whether these propositions are capable of proof. This is particularly relevant during early advice, in identifying those cases which are capable of proceeding subject to expert evidence and those cases which cannot be built any further by obtaining such evidence. Prosecutors must be mindful, not only of the resource and costs of obtaining expert evidence, but also of the intrusive nature of such requests which should not be made unless required following a review of the evidence generated by other reasonable lines of enquiry that may be determinative. At the appropriate time, prosecutors should consider carefully what type of expert is required in the particular circumstances of the case.

In every case that proceeds to charge, prosecutors should prepare a chronology on which the factual basis of the case is to be understood. This can be commenced at the early advice stage. A template chronology can be found at Annex A. Use of this template will assist prosecutors in checking that they have established a causal chain which leads back to A as the only reasonably possible source of the infection and that at the time of infection, A would have been aware of the risk of causing that infection.

Relevant offences

A deception by A as to their STI status will not vitiate the consent given by B to the sexual act which caused the transmission. Consequently, in the absence of other evidence of lack of consent, charges under the Sexual Offences Act 2003 will not be appropriate. The relevant offences will be those contrary to section 20 and/or 18 of the Offences Against the Person Act 1861 (OAPA 1861) as the transmission of an STI is capable of amounting to grievous bodily harm (see below). 

In R v B [2006] EWCA Crim 2945  the Court of Appeal held that the defendant's failure to disclose his HIV+ status was not capable of vitiating consent and consequently his conduct did not amount to rape.  However, in R v Justine McNally [2013] EWCA Crim 1051 the Court of Appeal concluded that B left open the question of whether an explicit lie (as opposed to a failure to disclose) might be capable of vitiating consent. In R v Lawrance (Jason) [2020] EWCA Crim 971, the Court of Appeal considered the circumstances in which deception was capable of vitiating ostensible consent in sexual offences and clarified any ambiguity with regard to the manner in which the deception is communicated.

In Lawrance, the defendant had lied about having had a vasectomy. The Court held that it does not matter whether the suspect deliberately withholds information or states an explicit untruth. The fundamental issue is whether the deception is sufficiently closely connected to the performance of the sexual act. The Court considered the facts of Lawrance to be analogous with those of B and decided that that the explicit lie of the defendant as to his vasectomy did not vitiate consent as defined by section 74 of the Sexual Offences Act 2003. This was because it was not sufficiently closely connected to the nature and purpose of the act of sexual intercourse. Rather, it was a deceit as to the nature of the defendant’s ejaculate and the risks associated with having unprotected sex with him. The defendant's lie had not deprived the other person of the freedom to choose whether to have the sexual intercourse which occurred.

This principle will apply to any offence under the Sexual Offences Act 2003 where a lack of consent needs to be proved.

If it can be demonstrated that A, whilst committing a sexual offence, recklessly or intentionally transmitted an STI then that should be investigated and, if appropriate, A should be charged, both with the sexual offence, and an offence contrary to the relevant section of the OAPA 1861. In the absence of reckless or intentional transmission, but where transmission has nevertheless taken place, the court’s attention should be drawn to the Sentencing Guideline for Sexual Offences which addresses the transmission of an STI as a factor relevant to harm.

Whilst it is possible to attempt to transmit an STI intentionally, it is not possible to attempt to transmit an STI recklessly (as any attempted offence requires specific intent to commit the substantive offence).

Evidential considerations

When considering charges, the prosecutor should review the evidence to ensure that it meets the Full Code Test. The chronology will be of assistance in ensuring that there is sufficient evidence to prove that the offence took place and that the correct dates for the alleged offence have been identified. There should be sufficient evidence to prove each of the following propositions.

B has an STI which is capable of amounting to grievous bodily harm

The reckless transmission of HIV and herpes has been found to be capable of amounting to the reckless infliction of grievous bodily harm: see the cases of R v Dica [2004] EWCA Crim 1103 and R v Golding [2014] EWCA Crim 889 respectively.

Should there be an issue as to whether the STI in question meets the criteria for “grievous bodily harm” the case of Golding provides guidance on the correct approach to this question.

“The phrase ‘grievous bodily harm’ means really serious bodily harm, but it is not necessary that the harm should be either permanent or dangerous. See R v Ashman [1858] 1 FF 88. It is not a precondition that the victim should require treatment or that the harm should have lasting consequences. In assessing whether the particular harm was grievous, account has to be taken of the effect on and the circumstances of the particular victim. See R v Bollom [2004] 2 Cr App R 6 at paragraph 53. Ultimately, the assessment of harm done in an individual case in a contested trial will be a matter for the jury, applying contemporary social standards.”

A had a diagnosed STI at the time of sexual activity with B

Prosecutors should firstly consider whether A’s medical records disclose this fact. A should be invited to consent to access to those records. Access to the records pre-charge cannot be obtained by compulsion: R v Central Criminal Court ex parte Brown (TLR 7 September 1992). Such records are excluded material and cannot be obtained by the first set of access conditions provided for by Schedule 1 to the Police and Criminal Evidence Act 1984 (PACE 1984). Nor is there a legislative provision prior to PACE 1984, preserved by the second access conditions, which could be relied upon.

A request to a medical professional to disclose records without the patient’s consent is possible: confidentiality is an important legal and ethical duty, but it is not absolute. The guidance given to medical professionals can be found at: GMC - Ethical Guidance for Doctors - Confidentiality. Prosecutors should consider carefully whether a proper request can be made. It must be founded upon there being other compelling evidence in the case and a cogent public interest argument, demonstrating why such material is critical to the decision to charge. Prosecutors should assist investigators where possible in drafting the request.

Prosecutors are however entitled to consider whether evidence other than A’s medical record is capable of proving this proposition. Confirmation by A may suffice, whether in a PACE-compliant interview, or in a reliable and admissible statement by A to a third party. Where police have found material such as medications or correspondence about medical appointments these may also be capable of proving that A has an STI.

If there is sufficient evidence to charge, then consideration should be given post-charge to seeking access to medical records, pursuant to section 97A Magistrates’ Court Act 1980 or section 2 Criminal Procedure (Attendance of Witnesses) Act 1965. The latter power is likely to be preferable, both because the Crown Court is the likely venue for a trial of these allegations, and because of the power of advance production provided for by section 2A.  The procedure to be followed is contained in part 17 of the Criminal Procedure Rules. See also the guidance on witness summonses found in the CPS Disclosure Manual.

A knew at the material time that they had the STI

Prosecutors must consider whether there is evidence that, at the material time of sexual activity with B, A knew that they had an STI. If A was diagnosed after the sexual activity, it will be very difficult to demonstrate that they knew they had an STI and there is likely to be insufficient evidence to proceed further.

If A and B engaged in sexual activity on a number of occasions, and A was diagnosed during this period, it is also likely that there will be insufficient evidence to proceed, because A may have infected B at a time when they did not know they had an STI. If that possibility cannot be ruled out by other evidence then, notwithstanding that A continued to engage in sexual activity, the possibility of transmission at a time when A did not have the requisite knowledge remains likely to result in there being insufficient evidence to proceed. 

Finally, it should be noted that if the date of A’s diagnosis does not precede the first sexual activity with B, it may instead be possible that it was in fact B who infected A.

At this stage it should be possible to tell whether the prosecution can prove that:

• A knew they had an STI at the time they engaged in sexual activity with B; and
• Other sources of infection can be ruled out

The evidence that A knows they have an STI will usually be in the form of confirmation that they had been diagnosed and told of the diagnosis. This should be confirmed in A’s medical records, but if these are not available pre-charge then, as set out above, prosecutors should consider whether there is any relevant evidence as to A’s knowledge of a positive diagnosis. Prosecutors should be aware that, on rare occasions, a person can know that he or she is infected without undergoing the necessary medical tests. Those who choose not to be tested will not necessarily avoid prosecution for the transmission of an STI if all the circumstances point to the fact that they knew that they were infected. When deciding whether they are sure that A knew they had an STI, a jury could take into account evidence such as:

• confirmation that A has had a preliminary diagnosis from a clinician who has recommended that they have a formal confirmatory test for presence of the sexual infection but A has failed to act on that recommendation
• evidence that A was exhibiting clear symptoms associated with the sexual infection from which it is reasonable for a jury to infer that they must have known that they had a transmittable infection (rather than that they were simply aware of the symptoms), or
• evidence that one of their previous sexual partners has since been diagnosed with an STI in circumstances where only A could have infected them and where A must have been aware of that fact

Any of these factual circumstances may be sufficient to allow the prosecution and eventually the court to decide that A did have the required degree of knowledge that should have led them not to take the risk of infecting another person.

A intended to transmit an STI to B or foresaw the risk of transmitting the STI but went on unreasonably to take that risk

Prosecutors should take into account all of the available evidence as to A’s state of mind relevant to their intention or capacity for foresight at the time they engaged in sexual activity, when determining this proposition. Where A knows that they have an STI but they go on to engage in sexual activity with B without safeguards there will usually be a sound inference that foresight of the risk of transmission is present. Prosecutors should therefore consider:

• whether A in fact intentionally transmitted the STI or
• whether A unreasonably took that risk and if so, whether B consented to that risk

Unreasonableness is a matter of fact and degree. Infection can occur even where reasonable and appropriate safeguards have been taken. Not every shortcoming in the safeguards used amounts to recklessness. Further, even where there are shortcomings in the safeguards used, prosecutors will need to take into account what A considered to be the adequacy and appropriateness of the safeguards adopted. Only where it can be shown that A knew that such safeguards were inappropriate will it be likely that the prosecution would be able to prove recklessness. Evidence that A took appropriate safeguards to prevent the transmission of their infection throughout the entire period of sexual activity, and evidence from medical experts that those safeguards would be expected to prevent transmission in light of the nature of the infection, will mean that it will be highly unlikely that the prosecution will be able to demonstrate that A was reckless. Reasonableness is an assessment of fact for the jury but in making their assessment the jury may take into account the evidence they have heard from the experts.

Prosecutors should consider all of the available evidence relating to reasonableness, including:

• anything A was told about their infectiousness
• anything A was told about any treatment they undertook
• anything A was told about prevention
• the possibility that this information was difficult to comprehend, particularly if this information was given at a time when A was in shock at their own diagnosis and particularly if the information is not straightforward to understand
• the possibility that inadequate information was provided, focusing on the exact advice that was given
• the number of occasions they engaged in sexual intercourse
• the number of occasions on which protection was used
• whether or not A ejaculated whilst inside B

These factors should be taken into account in combination: one exposure to a highly infectious condition without protection and with ejaculation could be regarded as being reckless; conversely, for a condition with preventative techniques where there is a low risk of transmission, an increasing number of exposures will increase the possibility of transmission. Evidence will be necessary to determine whether, in these latter circumstances, the repeated use of the preventative technique continued to be reasonable.

Where someone who is HIV positive is receiving treatment, one of the effects is a reduction of the amount of the virus (‘the viral load’) in their system, resulting for the vast majority of people in an ‘undetectable viral load’. In such cases the current medical consensus is that there is no risk of HIV transmission, even where no condoms are used. It is open to A to rely on their undetectable viral load as an appropriate safeguard against the transmission of HIV to others. Even in advance of the level of virus reaching an undetectable level, as HIV treatment reduces the viral load, so infectiousness decreases significantly. As above, if this issue is raised by A, or if the prosecutor anticipates that it may be raised, further lines of enquiry may need to be pursued, including obtaining A’s medical records and/or expert medical evidence on the degree of infectiousness of A at the time of the alleged offence. See also “HIV and Herpes: useful links” below. Evidence should also be gathered on what A had been told/knew in relation to their infectiousness and reasonable safeguards. Prosecutors should seek the opinion of a sexual health consultant where required to inform their assessment.

Where someone with genital herpes is correctly taking daily antiviral medication, one of the effects is a reduction of the amount of the virus that may be detectable. For the vast majority of such people, herpes transmission risk will be negligible, even where no condoms are used. Relying on antiviral medication is therefore an appropriate safeguard against the transmission of herpes. As above, if this issue is raised by the suspect, further lines of enquiry may need to be pursued including obtaining expert medical opinion.

It is possible that sexual activity on more than one occasion will combine both reckless and non-reckless behaviour (just as it may combine activity pre- and post- diagnosis). Even if it is likely that transmission occurred when the behaviour was reckless, if the possibility cannot be ruled out of transmission when the conduct was (provably and unarguably) non-reckless, then recklessness cannot be proved.

With regard to consent, there is no legal requirement that a person must inform their partner that they have an STI. However, if they do so, the consent of B to the specific risk of transmission is a defence to reckless transmission (section 20 OAPA) which, once raised with evidence, must be disproved to the criminal standard by the prosecution: see Dica. It is not, however, a defence to intentional transmission (section18 OAPA) of an STI: R v Donovan [1934] 2 KB 498; Attorney General's Reference (No. 6 of 1980) [1981] QB 715.

This defence is raised where (a) in fact, B consented to the risk of contracting the STI (which means, having been informed about the risk, consciously thinking about the risk and deciding to take it) or (b) where A honestly believed that B was in fact consenting. For the defence of honest belief in consent to be left to the jury, there must be some evidence that it was consent which would amount to a defence: simply advancing a claim of honest belief will not suffice. There must be some evidence on which A could honestly believe that B had been informed of the risk of transmission, had thought about it and had taken that risk: R v Konzani [2005] EWCA Crim 706.

Informed consent does not necessarily mean that A must disclose their condition to B. B may be regarded as being informed for the purposes of giving consent where a third party informs them of A's condition, and B then engages in unprotected sexual activity with A. Similarly, B may be regarded as being informed if they become aware of certain circumstances that indicate that A is suffering from a STI, such as visiting A while they are undergoing treatment for the infection in hospital, or the appearance of sores on A's genitalia (see Konzani, paragraph 44.)

Although section 71 of the Domestic Abuse Act 2021 provides statutory confirmation of the common law position that consent is not a defence to an allegation of inflicting serious harm, section 71(4) provides that this does not apply if the harm consists of an STI as a result of sexual activity and that at the time of the sexual activity B knew or believed that A had the STI. 

Intention is an ordinary word and concept and does not benefit from elaboration or paraphrase, other than to say that a person intends a result if they consciously act so as to bring it about.

A in fact infected B with the STI

Once satisfied that there is sufficient evidence to meet propositions (1) – (4) above prosecutors will need to seek expert evidence to establish that there is proof that A infected B and that other sources of infection can be ruled out. The other potential sources should be established with B from the outset. However, this is a potentially intrusive and resource-intense process. It will involve the police speaking to a number of persons, including former sexual partners, who may have transmitted the STI by sexual or non-sexual means, and attempting to prove, either from their medical records or getting their consent to STI testing, that they do not have the STI. When providing early advice prosecutors should bear in mind that this issue should be addressed by police at a later stage of the investigation because, if the preceding propositions cannot be proved, it will not be necessary to undertake this difficult exercise.

The window of infection is demarcated by the date of B’s diagnosis with an STI and the latest date preceding that on which it can be established that B did not have the STI. This would usually be the date of a negative test for the relevant STI, otherwise it will be the date of the first activity capable of resulting in infection. Prosecutors should note that the first activity capable of resulting in infection may or may not be sexual activity. In reviewing the question of what types of activity might potentially be sources of infection prosecutors may find it helpful to access information provided by specialist organisations (see “HIV and Herpes: links” below).

It is critical, notwithstanding the sensitivity of this enquiry, to establish from B clearly at this stage, not only the “negative” and “positive” dates required to indicate the window of infection, but also the other potential sources of infection during this window. This will mean adding a date (or dates) on the chronology indicating:

• the date or dates on which sexual activity with A took place, and
• the date or dates of any activity (whether or not sexual, not necessarily involving intercourse) constituting other potential sources of infection

Equally, however, when all potential sources of infection other than A, including other sexual partners of B, cannot be ruled out by evidence, there will be insufficient evidence to charge, whatever the evidence and assessment of the other propositions above indicates.

Expert Evidence

Once the factual evidence is of a sufficiently satisfactory nature, expert evidence may assist.

Careful consideration needs to be given to the evidence as to whether, in fact, A transmitted an STI to B and if they did, whether it was intentionally or recklessly. Prosecutors should consider B’s evidence and medical records, any account by A (and if possible their medical records) and where appropriate the evidence as to other potential sources of infection. However, expert evidence may provide decisive evidence on this issue. The following expert evidence should be considered where appropriate:

1. Whether the type of herpes virus can exclude the possibility of transmission having taken place between A and B. For example, Herpes simplex virus (HSV) is a virus from the family of human herpes viruses. The HSV has two types: type 1 and type 2. If A and B have different types of the herpes virus then this excludes the possibility of transmission
2. In the case of HIV, phylogenetic analysis can demonstrate with certainty that A did not infect B, excluding the possibility of transmission between two persons where there is no relevant match between the two samples. However, prosecutors should be aware that this analysis, whilst it can prove A did not infect B, cannot prove the contrary (that A did infect B). At best, any match would simply show that it is possible that A passed on the infection to B. Phylogenetic analysis may demonstrate that the strain of the infection in B is consistent with the strain in A, but additional factual evidence is essential to make the case that A was in fact responsible for the B's infection. Phylogenetic or medical evidence alone is insufficient.
3. Further in the case of HIV, RITA (Recent Infection Testing Algorithm) or STARHS (Serological Testing Algorithm for Recent HIV Seroconversion) tests may be used to establish whether the infection was recent or established. Prosecutors should be aware that there are qualifications as to what such evidence can reliably demonstrate in an individual case and any claim of evidence of recency of infection should be referred to an expert witness.

Prosecutors should also bear in mind that there may be varying degrees of infectiousness during the cycle of infection and during any anti-retroviral therapy. Scientific evidence will be extremely helpful here and, if possible, it should also include specific information on the degree of infectiousness of A at the time of the alleged offence.

Prosecutors should consider the need for scientific evidence, namely clinical and epidemiological evidence, regarding duration of infection, the possible incubation period of the infection and the likelihood that A infected B as opposed to any possibility that B may have infected A. The extent to which the scientific evidence supports other factual evidence in terms of when the infection was allegedly passed and the proximity of the strain(s) of infection in A and B will be critical in helping to determine the weight that may be placed on the other factual evidence.

This evidence is a reasonable line of enquiry, given the potential to rule out A as a source of infection, or if the strains are the same, as further evidence against A.  It should usually be obtained pre-charge. However, it will not on its own be sufficient and given the timescale and costs of such analysis, it should only be sought once the preceding propositions have been addressed and the case is in the advance stages of progressing to charge.

A might not consent to provide a blood sample for analysis and in these circumstances no such analysis will be possible. An adverse inference may be drawn from such a refusal: section 62(10) PACE 1984. It is important to note that the medical science in this area is constantly evolving. Prosecutors should therefore ensure that they obtain medical evidence from a practising sexual health consultant at the time of the production of any report.

Public Interest Considerations

Where there is sufficient evidence for a realistic prospect of conviction, a prosecution will usually be required in the public interest for allegations of reckless transmission and is highly likely to be required for allegations of intentional transmission. Prosecutors should apply the Code for Crown Prosecutors which sets out the relevant factors to be taken into account in determining whether a prosecution is required in the public interest.

Witness Care Issues

Prosecutors will be aware of the traumatic circumstances in which the person infected in STI transmission cases find themselves: that someone with whom they have been intimate has transmitted an infection to them which amounts to the infliction of grievous bodily harm. This in turn could have resulted in the breakdown of their relationship and disrupted their social, domestic and working life. However, in order to prove the prosecution case, they are likely to have to attend court to give evidence. 

Prosecutors should consider the following:

• whether, exceptionally, the person infected may not need to give evidence, given the issues in the case, because a hearsay application may properly be made
• whether an application for special measures for an “intimidated witness” on grounds of fear and distress may properly be made pursuant to section 17 Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). The legal guidance entitled “Special Measures” should be considered and applied. In particular, the special measures sought should be carefully considered taking into account the views of the witness and the relevant material provided by the police. If appropriate, a Special Measures Meeting with the witness should take place
• to enable a vulnerable or intimidated witness to give their best evidence, the procedure of the court and the manner of cross-examination may need to be modified in accordance with the “Advocacy and the Vulnerable” training devised by the Inns of Court College of Advocacy (ICCA). The needs of the witness should be considered by the judge at a Ground Rules Hearing (GRH) which must be held in every case involving a vulnerable/intimidated witness. The prosecuting advocate should ensure that directions made by the judge at the GRH are complied with
• whether an application for reporting restrictions can appropriately be made pursuant to section 46 YJCEA 1999. No automatic reporting restrictions are available. Parliament has not provided that this category of offending, unlike sexual offending, should be subject to a reporting restrictions regime such as that provided for by the Sexual Offences (Amendment) Act 1992. An application may be made under section 46(2)(b)(i) YJCEA 1999 if it “is likely to improve the quality” of the witness’s evidence which may be diminished by fear or distress
• the power in section 45 YJCEA 1999 may be used to prohibit the reporting of any matter likely to lead members of the public to identify a person under the age of 18 as being concerned in the proceedings.
• if the person infected withdraws support for the prosecution, a prosecutor should ensure that a statement is obtained setting this out and why that is so (or if this is not possible a record by the police of why this is so). Prosecutors should explore the reasons for withdrawal, including whether any of the measures above might address their concerns, or whether they are in fear or have been pressurised, seeking investigation of any such possibility. A prosecutor must consider whether it is appropriate to compel the person to give evidence, balancing their wishes with that of the wider public interest.

Court Orders

Sexual Harm Prevention Orders

Prosecutors should only pursue a Sexual Harm Prevention Order (“SHPO”) where allegations of reckless or intentional transmission are accompanied by other sexual offending.  For guidance on making an application for an SHPO prosecutors should refer to  the prosecution guidance on Rape and Sexual Offences.

Criminal Behaviour Orders

Following a conviction, it may be appropriate for the prosecution to apply for a CBO pursuant to sections 330-335 of the SA 2020 based on the facts of the conviction. Before asking the court to make a CBO upon conviction, prosecutors should consider the matter carefully and ensure that any such applications are necessary and proportionate having regard to the facts and circumstances of the case in question and the need for ongoing public protection.

Sexual Risk Orders

Alternatively, a separate application by police for a Sexual Risk Order (“SRO”), independent of a prosecution, is possible pursuant to the section 122A of the Sexual Offences Act 2003 where evidence exists to merit it.

On an application by the police, the court may make an SRO if it is satisfied that the defendant has done an act of a sexual nature as a result of which it is necessary to make such an order prohibiting the defendant from doing anything described in the order, for the purpose of:

• protecting the public or any particular members of the public from harm from the defendant, or
• protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom

It is a matter for the police whether it is an appropriate application to make, and there may already be sufficient evidence obtained by the criminal investigation to merit it, even if the case is not ready for charge.

HIV and herpes: useful links

Prosecutors should go to these links to gain a better understanding of the key facts about HIV and herpes as this will assist them in evaluating the evidence in a case and deciding what are reasonable lines of enquiry for police to follow. 

• HIV and AIDS - NHS (www.nhs.uk)
• Expert Consensus Statement,
• Herpes Viruses Association - Helping You With Genital Herpes

Annex A - Investigation Chronology Template for Prosecutors