The first case of criminalization of transmission of hepatitis B in the UK: defendant sentenced to two years’ imprisonment on the grounds of hepatitis B deoxyribonucleic acid sequencing

INTRODUCTION

On 19 November 2008 there was wide publicity by both national and local news papers (The Sun, The Sun On Line, Sun, Times On Line, This is Bristol, etc.) that a 29-year-old Turkish restaurant worker called Ercan Yasar, in Gloucestershire in England knowingly infected a 27-year-old woman with a life-threatening condition, hepatitis B, through sexual intercourse without using a condom. Yasar got two years’ imprisonment after pleading guilty to the offence of biological grievous bodily harm (biological GBH). This was the first case of criminalization of the transmission of hepatitis B in the UK.

Following the publicity, the Terrence Higgins Trust (THT) and the National AIDS Trust criticized the court decision as an excessive sentence and a miscarriage of justice. I was employed as an expert witness in the case by the Crown Prosecution Service (CPS). Although I was appointed by the CPS, my expert medical report was based on independent advice as part of my duty to the court. The report was available to both the CPS and the defence before the court hearing.

CASE REPORT

The defendant had been suffering from hepatitis B infection since 2003 and was attending a specialist clinic. In early 2007, his blood tests showed that he was HBsAg-positive, anti-HBe-positive and HBeAg-negative. He was still infectious but not highly infectious as his antigen was negative. He was warned about the risk of sexual transmission of hepatitis B if he did not use condom.

It was alleged that between 14 September 2007 and 17 September 2007, the defendant had sexual intercourse with the 27-year-old woman without using a condom. After about three months, a 27-year-old woman, was admitted to the local General Hospital, was found to be hepatitis B-positive and was discharged after 20 days on 27 December 2007. Hepatitis serology revealed HBsAg and HBeAg both positive. The liver function test (LFT) showed an abnormally high alanine transaminase (ALT) of 2009 IU/L 148 µmol/L bilirubin. The ultrasound scan (USS) of the liver showed an enlarged liver measuring 18 cm. USS of the spleen measured 15.2 cm with normal pancreas, kidneys and gall bladder.

I obtained the medical case-notes of both the defendant and the victim. The sexual history of the victim was inadequate in her medical records and I obtained this accurately according to BASHH guidelines. ¹ The relevant history was that the victim had had her ear pierced and also a small tattoo long before 14 September 2007. She also had a boyfriend before this incident and always used a condom with him and with all the others, about 10 lifetime partners. The hepatitis test of her most recent boyfriend was negative. Therefore, she was an ideal recipient for hepatitis B.

I was contacted to provide evidence of the transmission by conducting hepatitis B DNA sequencing, which I arranged at the Health Protection Agency, Hepatitis B Virus Laboratory, 61 Colindale Avenue, London NW9 5HT. I was asked to provide expert opinion taking into account all of the facts in addition to the result of DNA sequencing.

DNA sequencing was attempted is the paired sera, but the victim had recovered fully without any virus present in her blood. Both HBsAg and HBeAg were negative with positive anti-HBs and anti-HBe. Therefore, we had to sequence her sample that was stored before commencing her hospital management.

SEQUENCING ANALYSIS

Sequencing analysis was carried out across the HBV HBsAg and x/pre-core/core regions. The generated sequences were compared with both the samples. Both samples were identical at both nucleotide and amino acid levels across the two regions analysed. Further analysis of the pre-core region showed the presence of a pre-core mutant (w to stop) at codon 28, resulting in the premature termination of HBeAg suppression. Further phylogenetic analysis across the HBsAg region showed that the two samples belong to genotype D. The final conclusion was that both samples were compatible with the samples being linked.

DISCUSSION

The case raises several issues:

The role of the Police, CPS and the court;

Once the evidence is collected, the file is passed to the CPS, who decides on the merit of the case by taking into account various statutes, statutory instruments and case laws. The function of the CPS is twofold according to CPS consultation draft policy in September 2006. It has to gather evidence and, secondly, assess this against the public interest. The evidence should establish an intentional and reckless transmission of an STD that causes grievous bodily harm (GBH). This is known as biological GBH. The CPS follows ‘the full code test’, which is a two-stage test: ² in stage 1, whether there is a realistic prospect of conviction, and in stage 2, whether the prosecution is needed for public protection. The realistic prospect of conviction fails if the defendant was aware of the seriousness of infection and took the necessary precautions of using a condom to prevent transmission. His understanding of the infection is also important and he obtained a valid consent.

Inflicting harm by transmitting HIV, a life-threatening disease, is considered an assault. There are two statutes, which deal with the different types of assaults. s.39 of the Criminal Justice Act 1988 deals with ‘common assault’, and is dealt with summarily in the magistrates’ court with a maximum of six months’ imprisonment. Transmission of a life-threatening condition to an innocent individual is more serious and dealt with under the second statute called Offences against person Act (OAPA) 1861. There are 23 sections (s.4 to s.64) under this act that are currently in use. ³ The most relevant sections are s.47 (assault occasioning bodily harm, ABH), s.20 (inflicting bodily injury with or without a weapon, GBH) and s.18 (GBH with intent). Both s.47 and s.20 carry a maximum sentence of five years, whereas s.18 which is more serious carries a maximum sentence of life imprisonment. It is very difficult to prove the intention in court. Therefore, the CPS brings a lesser charge for a successful conviction. Sometimes there is a pre-trial bargain when the defendant pleads guilty to a lesser charge instead of going for a long and expensive trial with minimum sentence. Therefore, it is very difficult to criticize the court without knowing what goes on behind closed doors with respect to plea bargaining. If the defendant pleads guilty before the trial, he gets a maximum of one-third discount of the final sentence.

In 1988, in the leading case of R v Clarence it was held that the defendant who transmitted gonorrhoea could not be tried under OAPA 1861 as the defendant was tried under OAPA s.20. About a 100 years after the Clarence case, when a man intentionally transmitted HIV to four women in 1992, the Home Secretary stated in Parliament that he had no plans of making reckless transmission of HIV a criminal offence. In 1997, the House of Lords decided in R v Ireland that silent telephone calls can cause psychiatric injury amounting to GBH, which opened the floodgates for CPS to bring prosecutions against reckless HIV transmission under this case law. In 1999, the Home Office published a consultation paper on the basis of 1993 Law Commission proposals suggesting that one bring intentional HIV transmission under statute. ²

In 2001, the first successful conviction was brought against Stephen Kelly in Scotland for recklessly transmitting HIV to a woman. In 2003, the first successful English conviction was brought against Mohammed Dicca, who was convicted on two counts for unlawfully and maliciously inflicting GBH under s.20 OAPA 1861. In a retrial he was convicted for one. In 2004 Feston Konzani was convicted on three counts under s.20 of OAPA 1861. The criminalization of intentional HIV transmission is now well established in the UK. The problem is in proving the transmission if the defendant pleads not guilty.

Hepatitis B is as seriously life-threatening as HIV, although there is treatment available. Treatment is designed to prevent cirrhosis and liver cancer as the virus is not fully eliminated by the treatment. In 1998, a prosecution was brought in on hepatitis B transmission before the York Crown Court under s.20 of OAPA 1861, which was unsuccessful on the grounds of the R v Clarence case. However, the law under biological GBH has moved on in the light of the CPS consultation document in 2006 and other court decisions since 2001. Our case report is the first of its kind in the UK to get a criminal conviction under s.20 of OAPA 1861, which is often referred to biological GBH in this context.

There is lot of criticism about the harsh sentence of two years in this case. In December 2005, Derek Hornett pleaded guilty to one charge under s.20 OAPA and was sentenced to three years’ imprisonment. ² In 2006, Sarah Porter pleaded guilty to s.20 and was imprisoned for 32 months. In 2007, an unnamed Zimbabwean man pleaded guilty to one charge of s.20 and was sentenced to three and a half years of imprisonment. Therefore, two years’ imprisonment is not too excessive in our case. Besides, the court gives a one-third discount for a guilty plea. There are various other mitigating factors, i.e. like victim went to the defendant's premises and both were drunk before having sex without a condom. All these factors were taken into account before arriving at a final sentence.

Finally, ‘phylogenetics’ has recently played a major role in deciding whether the defendant is guilty or not. Phylogenetics is a scientific study of the evolutionary relations between strains. In a chronic viral infection, the initial small viral population expands over a period of time. During this expansion, about 1% of the viral population changes in their genome each year. Therefore, the source virus will be different from the recipient virus in sequencing analysis. Phylogenetics has been used extensively in the USA for epidemiological studies. ^4–6 Some authors have argued that DNA sequencing alone as evidence should not play a part in convicting the defendant. ⁷ They also argue that even if the linkage is established from two sources in a recent transmission, this does not prove the direction of transmission. A third party may have infected both sources. Besides, viruses from two different sources with different genomes may have a convergent or parallel evolution to produce a similar genome with a perfect linkage. Independent development of drug resistance mutations in two different people without any sexual contact with a perfect linkage is an example of convergent evolution. ⁸ Because of these reasons, DNA sequencing alone is very unsafe for criminal convictions. However, Pillay et al. ⁷ recommended that phylogenetic evidence together with epidemiological and clinical evidence backed up by sexual history and the duration of infection in both sources can support a linkage but not direction of transmission.

In our case report, circumstantial evidence showed that the victim was negative to hepatitis B prior to sexual intercourse with the defendant. She did not have any partners at the time. Her only recent ex-partner was HBsAg negative. Although she had had a total of 10 lifetime partners, she used condoms with all these partners. Within three months of sexual intercourse with the defendant without a condom, she was admitted with severe acute hepatitis infection with abnormal LFT and jaundice. The high ALT level fell to normal within a short period of time with negative HBsAg and the presence of anti-HBs. This supports a direction of transmission of hepatitis B from the defendant to the victim. She also contracted chlamydia at the same time. There was a strong linkage between the strains of the source sample taken in November 2008 and of the recipient sample in September 2007. According to DNA sequencing analysis, it is very unlikely that the source sample had gone through convergent evolution to match the recipient sample within this period of one year. The sexual history and the clinical data support against a convergent evolution. Since there is a strong evidence of transmission and clinical opinion supports a definite direction of transmission, the CPS has to bring the charge under one of the sections of OAPS 1861, i.e. s.47, s.20 or s.18. s.47 (ABH) is for minor to moderate injuries, s.20 (GBH) for fatal or life-threatening injuries and s.18 (GBH with intent) for life-threatening injuries. Where intent is an essential component, the CPS finds this very difficult to prove in a criminal court. Therefore, the only option left for the CPS is to bring the charge under s.20, which carries five years’ imprisonment as the maximum. The judge then has to balance the aggravating factors, i.e. not using a condom when he was warned by the health professionals, not telling the victim that he was hepatitis B positive before sex and transmitting chlamydia at the same time as hepatitis B, against the mitigating factors, i.e. they were drunk, the victim recovered fully and the defendant pleaded guilty before the trial. A final sentence of two years’ imprisonment is quite justified and proportionate, taking into account the balancing act between aggravating and mitigating factors and the previous court decisions in HIV transmission cases in the UK.