Since Bennett, Draper, and Frith published a paper in this journal in 2000 considering the possible criminalisation of HIV transmission, an important legal development has taken place. February 2001 saw the first successful United Kingdom prosecution for the sexual transmission of disease for over a century, when Stephen Kelly was convicted in Glasgow of recklessly injuring his former girlfriend by infecting her with HIV. Whether English criminal law can apply criminal penalties in such a case, however, still remains uncertain.This paper, (...) in addition to providing some background to the Kelly case, briefly explores the current possibilities for prosecution under English law. It then proceeds to outline and comment on the issues relevant to criminalisation, responding in part to points made by Bennett, Draper, and Frith and also by Bird and Leigh Brown in a recent article in the British Medical Journal. (shrink)

Common lawyers are accustomed to the presumption of innocence being described as a “golden thread” running “[t]hroughout the web” of the criminal law: “that it is the duty of the prosecution to prove the prisoner’s guilt” (Woolmington v DPP [1935] AC 462 per Viscount Sankey LC at 481). But although the language of “golden thread” is memorable and oft-quoted, the presumption of innocence must mean more than this: it is not simply a restatement of the burden of proof in a (...) criminal trial.Once this simple point is recognised, a whole host of more complex questions arise. For example: what, precisely, is the scope of the principle? Is this a matter on which consensus is possible or desirable? What role does the presumption have to play in pre-trial proceedings, in decisions by prosecutors? Does the presumption have consequences for the substantive criminal law, or can legislators blunt its impact by defining criminal offences so as to deprive the presumption of its bite? Can legislators tr. (shrink)