A LEADING Aids organisation has warned against Scotland's prosecution service adopting an approach to HIV exposure that could drive infected people underground.

The National Aids Trust's comments came after the Crown Office published guidance on the prosecution of intentional or reckless sexual transmission of, or exposure to, sexually transmitted infections (STIs).

Prosecutors said it was important to provide "clarity" on the law to ensure consistent decision-making in cases where it is suspected a person has contracted an STI through the intentional or reckless behaviour of another.

The guidance includes details of when cases would be classed as assault or culpable and reckless conduct.

This requires proof the victim contracted the infection from an accused who knew that he or she had the infection and acted with the requisite degree of recklessness.

The National Aids Trust welcomed the guidance but warned Scotland's policy is slightly different to that in England and Wales and could drive people underground.

Yusef Azad, director of policy and campaigns for the National Aids Trust, said: "It is 11 years since the first criminal prosecution for HIV transmission in Scotland – so this guidance is much needed and very welcome. People have a right to know what the law expects and requires."

He told The Herald: "However, we have always had worries the punitive approach will push people underground and make them more afraid to talk about HIV.

"We have had particular concerns about the law in Scotland. Concerns remain for us because in Scotland, unlike the rest of the UK, you could be prosecuted for exposing someone to the risk of HIV even when the complainant remains HIV negative. The guidance says that sort of prosecution would only happen in extreme circumstances, but we would rather no prosecutions on this.

"It is inappropriate to target one group of people for the responsibility for safer sex. Safer sex is the responsibility of all of us."

The publication of the guidance comes five years after the landmark case of chef Giovanni Mola, who was convicted of recklessly infecting his Edinburgh lover with HIV and hepatitis C. Mola was jailed for nine years.

Following his conviction, a number of HIV organisations expressed concerns the case could discourage people from coming forward for testing.

The Crown Office and Procurator Fiscal Service is one of the few prosecution services worldwide to have proactively published guidance on this issue. It has been drawn up in consultation with the public health sector and other interested groups, including the Terrence Higgins Trust, HIV Scotland and the National Aids Trust.

It states consent by the victim is not a defence, unless there is evidence the victim knew the accused had an infection that could be transmitted and freely consented to that risk. Evidence the victim was vulnerable and was coerced or exploited in any way could help lead to a prosecution.

Catherine Murphy, head of public affairs for the Terrence Higgins Trust, said: "The Crown Office has a duty to prosecute criminal behaviour, but it also has a responsibility to ensure that the law is fair and fit for purpose.

"We hope this policy will provide greater clarity on a complex and highly sensitive issue. For good public health reasons, people with HIV must be able to seek advice on sexual health issues without fear of being reported to the police.

"Nor should they be subjected to unjustified investigations, because the law is vulnerable to misinterpretation by police and the courts.

"We are pleased that the Crown Office has recognised these concerns and has taken action to provide greater detail. We hope the policy will be supported by the wider justice system."

George Valiotis, chief executive for HIV Scotland, said: "We welcome the Crown Office policy which provides clear guidance on how to deal with cases of HIV transmission in the judicial system.

"Treatments in HIV not only increase the life expectancy of those living with the virus, they can also significantly reduce the risk of transmission by suppressing the virus in the bloodstream."

Frank Mulholland, QC, the Lord Advocate, said: "We are publishing this guidance because we recognise that it is important to provide clarity and consistency on this area of the law.

"We also recognise the devastating effect that such diseases can have, and we will prosecute where it is in the public interest to do so, taking into account the rights of both victim and accused, as well as any public health concerns."