In what appears to the first ever criminal case of sexual hepatitis B virus transmission, a man in Gloucester has been sentenced to two years in prison under Section 20 of the Offences Against the Person Act 1861 – the same law used to prosecute ‘reckless’ sexual HIV transmission. The man, originally from Turkey, pleaded guilty; it seems he had a lawyer who had no idea about the limitations of phylogenetic analysis.

The case sets a worrying precedent for other sexually transmitted infections. It is also a concern because hepatitis B is 50–100 times more infectious than HIV and can be transmitted in ways that do not involve sex, such as sharing items such as razors or toothbrushes with an infected person. Furthermore, the public health message on hepatitis B prevention is to get vaccinated, rather than rely on partner disclosure and condom use.

It seems very likely that Gloucester police, the local Crown Prosecution Service (CPS) and the man’s laywer were not aware of the recent CPS policy statement and legal guidance for prosecutors for cases involving the intentional or reckless sexual transmission of serious infection which states that:

• Prosecutions are unlikely to take place as a result of one-off sexual encounters (the reports suggest that the alleged transmission took place as a results of a single sexual encouter). “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.

• Scientific evidence must be used to show that the defendant infected the complainant, but this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.

This is why a defendant should always plead not guilty (and why the CPS should not accept a guilty plea) based only on phylogenetic evidence.

In a statement, the police said: “The case is the first in Gloucestershire to use techniques in DNA analysis to provide evidence that the defendant infected the victim and that the illness did not come from any other source.”

Although hepatitis B infection does not carry the same stigma as HIV, and is rarely life-threatening (fewer than one-in-ten adult acute infections, as in this case, ever become chronically infected with the virus, and even then, only about 15%–25% of people with chronic hepatitis B develop serious liver conditions, such as cirrhosis (scarring of the liver) or liver cancer) this didn’t stop the UK national tabloids, The Mirror and The Sun, from creating sensational headlines (well they would, wouldn’t they?). The Sun carried a photo of the man, and, stooping even lower, The Mirror even printed the name of the complainant. (In contrast I’m impressed by the Dutch, who do not ever print the names of the accused in such criminal cases.)

I’m disheartened that this case ever reached court given reassurances from the CPS that cases like these would be hard to prove, and not be in the public interest to prosecute. I’m also not sure that it is necessarily the case that people diagnosed with STIs are “rarely” ‘reckless’ in this manner, as suggested by both the police and The Sun Woman Editor. I’m more certain that the man’s ethnicity and ‘foreignness’ played a major part in his prosecution, as it did the first three cases of ‘reckless’ HIV transmission in England & Wales.

If there any lessons to be learned, it is that anyone accused of such a ‘crime’ needs to get connected to lawyer who understands the issues.