People living with HIV may experience different parts of the criminal justice system. They may be reporting a crime, be a victim of crime, have committed (or be suspected of committing) a crime, or be called as a witness or serve on a jury. People living with HIV in Scotland are also specifically protected from hate crime based on their HIV status.
People at risk of HIV may also experience different areas of the criminal justice system, including sex workers who are defined as a key population that are at risk of HIV.
There are many different services and people across sectors who are involved in delivering criminal justice in Scotland. They range from large, national bodies, such as Police Scotland and the Scottish Court Service, through to groups of professional individuals, such as the judiciary. HIV Scotland wants to ensure that everyone working within the criminal justice system has a good understanding of HIV, and that people living with HIV are treated with dignity and respect at all times by criminal justice services.
Reforming approaches to sex work
In December 2015, HIV Scotland submitted evidence to the Prostitution Law Reform (Scotland) Bill, which was proposed by Jean Urquhart MSP. The Bill contained proposals to decriminalise activities associated with the buying and selling of sexual services in Scotland.
The World Health Organisation has identified groups who, due to specific higher-risk behaviours, are at increased risk of HIV irrespective of the local epidemic type of context. This includes sex workers and therefore sound evidence-informed measures to address sex work constitute an integral component of an effective, comprehensive response to HIV in Scotland.
There are a range of different roles, responsibilities and actions, specific to different agencies, which have relevance to people living with HIV.
Police: People living with HIV who come into contact with the police have the same rights as anyone else. This applies whether they are a witness or victim of crime or if they are detained, arrested and/or taken to a police station. However, people with HIV don’t always get a helpful response from the police. In order to ensure that the police can be confident when coming into contact with people living with HIV, HIV Scotland produced a Key Facts document for Police Scotland in November 2014. The document also contains information about confidentiality, discrimination and ensuring access to treatment within police custody.
HIV Scotland regularly meets with Police Scotland to provide up to date information on HIV policy and to discuss best practice when coming into contact with someone living with HIV.
The Crown Office and Procurator Fiscal Service (COPFS): In Scotland, people can be prosecuted for passing on HIV (transmission) or putting another person at risk of HIV (exposure). The COPFS has published guidance on what the law in Scotland actually means. It outlines the circumstances in which a prosecution is likely to take place and helps to explain what constitutes a crime in relation to HIV transmission or exposure under Scots law.
HIV Scotland regularly meets with the COPFS to discuss this guidance and ensure that the Crown office is aware of developments within HIV policy, as well as ensuring that the current guidance is being used effectively.
Courts: It is essential that anyone involved in court proceedings is sensitive to the needs of people living with HIV attending in court, whether it be as a witness or as an accused. This includes ensuring that the confidentiality of a person disclosing their HIV status is maintained and that reasonable adjustments are made if required, and that people know and use the COPFS policy where relevant. HIV Scotland would like to see training and guidance being made available to court staff about these issues.
Prisons: People living with HIV can experience serious problems related to their HIV status when being detained in prison, including difficulties accessing medication.
Find out more
- Prosecutions for HIV and STI transmission and exposure leaflet [PDF – 201kB] (HIV Scotland, THT and NAT, 2013)
- Prosecution policy on intentional or reckless transmission of, or exposure to, sexually transmitted infections (COPFS, 2013)
- HIV policy in Scotland: a stocktake of relevant policy and law [PDF – 1MB] (HIV Scotland, 2014)
- About HIV: The key facts produced for Police Scotland [PDF – 90kB] (HIV Scotland, 2014)
If you would like more information about our work in this area, or if you are living with or at risk of HIV and have had a problem with the criminal justice system, please get in touch.