A case for mercy

A survey of high-street lawyers indicates that courts are showing sympathy for those with Aids. Robert Verkaik reports

Europe's most comprehensive study into the way people with Aids and HIV are being treated by their respective legal systems has unearthed some surprising results in this country. Early indications from a UK survey, which is targeting 10,000 legal aid practices, reveal that around 40 per cent of high street practitioners have advised or represented people with Aids or HIV. There is also evidence that the majority of these cases are criminal matters of mainly drug-related offences.

Professor Avrom Sherr, of the Institute of Advanced Legal Studies, who is coordinating the Europe-wide study, believes that this is the first detailed evidence that proves Aids is being used as a mitigating factor in court.

Professor Sherr said that while there was no doubt that people with Aids and HIV were discriminated against in other parts of the legal system, in criminal courts their HIV status could work in their favour. "It appears that their status weighs in on their favour in the way the legal system works in terms of sentence or punishment," he said. However he stressed his research had come up with negligence cases where a plaintiff's HIV status counted against them. Professor Sherr said a judge had reduced damages awarded to a cyclist who was HIV positive after he was knocked down by a car. In those circumstances it was decided that the full effect of the injury sustained was not a direct result of the accident. In this way the plaintiff was considered to be more vulnerable to injury than someone who was HIV negative and so the damages were reduced.

Further findings reveal the second largest grouping of cases to be fathers, and some mothers, who are being wrongly denied access to their children because of their Aids status. In these cases, Professor Sherr said, where parents do go to see solicitors, there evidence thatthey are getting "slightly better" contact with their children than they had been previously offered.

This is encouraging for the profession which in the early years of the Aids epidemic was not always seen as sympathetic or "having a listening ear". Now, Professor Sherr said, people with Aids and HIV did not appear to have difficulty in disclosing their HIV status to high street practitioners.

The EU project, which began in 1995, is backed by a 186,000 ecu (pounds 137,000) grant and is working with lawyers and Aids sufferers in Italy, France, Germany, Portugal, Norway and the Netherlands. In this country the questionnaire is part of a huge mail drop accompanying cheques being sent out by the Legal Aid Board. The survey's final findings will not be known for several weeks. But Professor Sherr admitted to being surprised by the high number of the criminal cases and child access cases represented in the 400 or so responses so far collected. "We were originally trying to look for employment [discrimination] cases," he said.

Nevertheless, the project, which also involves contacting people with Aids or HIV to get their experiences of the legal system, has thrown up some very sad cases. "It's quite clear that there is a very strong feeling among people with Aids that there is a great deal of discrimination in the way in which they are treated," the professor said.

Cases can take a long time to come to court and many people with Aids or HIV do not want to risk identifying themselves as having aids.

Some employers exploit these prejudices in the knowledge that employees with Aids will not want to take a case to an industrial tribunal. "They give up," Professor Sherr said, "because they just don't feel the amount of energy and patience necessary is worth the actual chance of success."

The Terrence Higgins Trust has had some success in changing this system to make life easier for people with Aids and HIV. It has led medico-legal test cases and sent out 30,000 living wills, a document developed with King's College School of Legal and Medical Ethics. Through its lobbying efforts the trust secured the specific inclusion of Aids in the Disability Discrimination Act. Under the new Act it will be illegal to bar people from pubs just because they are HIV positive.

The trust has 70 solicitor and barrister volunteers which it can call upon to advise people with Aids or HIV. This is important because the trust does not have money to fund cases; its only resource is people.

In 1995 the trust's legal section acted for more than 565 clients and dealt with 4,349 enquiries, many through the successful legal line.

Alice Holt leads a small team of three full-time THT solicitors. The work ranges from advice on probate to applying for restraining injunctions to stop harassment by neighbours, as well as help in criminal matters. In criminal cases, Ms Holt acknowledged, the Aids status of a defendant can be a mitigating factor. But she said that the way it was handled in court still required tact on the part of the lawyer.

"Do you say that someone is positive in open court or do you put it down in writing and hand it to the magistrate?" There had been several cases where defendants charged with minor driving offences had had their HIV status read out in open court, she added. "One poor person found out that they were an item on the local radio news for a very minor traffic offence," Ms Holt said.

The question of anonymity for people with Aids and HIV is an issue the trust is keen to address. In the US applicants can go under the pseudonym of "John or Jane Doe" but here there is no such protection. And in this respect the trust too has to be aware that when issuing proceedings it will be alerting the press to the nature of the case. In many such cases the trust will recommend solicitors who not only "won't panic about HIV" but are also familiar with the local court.

"We can't possibly act for everyone who comes to us," Ms Holt said. "So we have a case management strategy which balances the vulnerability of the client and their illness with the type of help they are requesting."

This is sensitive work requiring specific skills and includes bedside visits as well as the drafting of emergency wills. A rigorous selection process weeds out those lawyers who do not possess the right skills or attitude. Ms Holt explained: "People who only practice in commercial contracts or have experience in money markets probably don't have very much in the day-to-day skill they can offer the clients we see."

All volunteers have to attend at least one training day a year. The days are accredited by the Law Society.

"We are concerned that clients get a high quality service," added Ms Holt. "Doing the work on a voluntary basis doesn't mean people should get a lesser service. Occasionally volunteers are asked to leave the programme if they haven't complied with the trust's group practice procedures."

The profession's approach to Aids may be more enlightened today but there is no doubt there is still some residual prejudice. One of the solicitors, responding to Professor Sherr's survey, argued that there was no reason why only people with Aids should benefit from such specialised research. Another flatly stated that he had not advised anyone with HIV, and then felt it necessary to add the comment, "and I hope I don't have to"

Start your day with The Independent, sign up for daily news emails
Voices
There will be a chance to bid for a rare example of the SAS Diary, collated by a former member of the regiment in the aftermath of World War II but only published – in a limited run of just 5,000 – in 2011
charity appealTime is running out to secure your favourite lot as our auction closes at 2pm tomorrow
News
people
Arts and Entertainment
Caroline Flack became the tenth winner of Strictly Come Dancing
tvReview: 'Absolutely phenomenal' Xtra Factor presenter wins Strictly Come Dancing final
Life and Style
A still from the 1939 film version of Margaret Mitchell's 'Gone with the Wind'
life
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Arts and Entertainment
J Jefferson Farjeon at home in 1953
booksBooksellers say readers are turning away from modern thrillers and back to golden age of crime writing
Sport
Amir Khan is engaged in a broader battle than attempting to win a fight with Floyd Mayweather
boxing Exclusive: Amir Khan reveals plans to travel to Pakistan
News
Stacey Dooley was the only woman to be nominated in last month’s Grierson awards
mediaClare Balding and Davina McCall among those overlooked for Grierson awards
Voices
Joseph Kynaston Reeves arguing with Russell Brand outside the RBS’s London offices on Friday
voicesDJ Taylor: The great tradition of St Paul and Zola reached its nadir with a worker's rant to Russell Brand
News
Twitchers see things differently, depending on their gender
scienceNew study shows that birdwatching men have a lot in common with their feathered friends...
News
i100
News
Xander van der Burgt, at the Royal Botanic Gardens, Kew
scienceA Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Austen Lloyd: Senior Private Client Solicitor

Excellent Salary: Austen Lloyd: SURREY - An outstanding high level opportunity...

Austen Lloyd: Construction Solicitor - London

Very Competitive Salary : Austen Lloyd: NICHE CITY FIRM - We are making a disc...

Austen Lloyd: Construction Solicitor - London

Very Competitive Salary : Austen Lloyd: NICHE CITY FIRM - We are making a disc...

Recruitment Genius: Finance Director

£65000 - £80000 per annum: Recruitment Genius: Finance Director required to jo...

Day In a Page

The week Hollywood got scared and had to grow up a bit

The week Hollywood got scared and had to grow up a bit

Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

Panto dames: before and after

From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
Thirties murder mystery novel is surprise runaway Christmas hit

Thirties murder mystery novel is surprise runaway Christmas hit

Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

Anne-Marie Huby: 'Charities deserve the best'

Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
The botanist who hunts for giant trees at Kew Gardens

The man who hunts giants

A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
The 12 ways of Christmas: Spare a thought for those who will be working to keep others safe during the festive season

The 12 ways of Christmas

We speak to a dozen people who will be working to keep others safe, happy and healthy over the holidays
Birdwatching men have a lot in common with their feathered friends, new study shows

The male exhibits strange behaviour

A new study shows that birdwatching men have a lot in common with their feathered friends...
Diaries of Evelyn Waugh, Virginia Woolf and Noël Coward reveal how they coped with the December blues

Famous diaries: Christmas week in history

Noël Coward parties into the night, Alan Clark bemoans the cost of servants, Evelyn Waugh ponders his drinking…
From noble to narky, the fall of the open letter

From noble to narky, the fall of the open letter

The great tradition of St Paul and Zola reached its nadir with a hungry worker's rant to Russell Brand, says DJ Taylor
A Christmas ghost story by Alison Moore: A prodigal daughter has a breakthrough

A Christmas ghost story by Alison Moore

The story was published earlier this month in 'Poor Souls' Light: Seven Curious Tales'
Marian Keyes: The author on her pre-approved Christmas, true love's parking implications and living in the moment

Marian Keyes

The author on her pre-approved Christmas, true love's parking implications and living in the moment
Bill Granger recipes: Our chef creates an Italian-inspired fish feast for Christmas Eve

Bill Granger's Christmas Eve fish feast

Bill's Italian friends introduced him to the Roman Catholic custom of a lavish fish supper on Christmas Eve. Here, he gives the tradition his own spin…
Liverpool vs Arsenal: Brendan Rodgers is fighting for his reputation

Rodgers fights for his reputation

Liverpool manager tries to stay on his feet despite waves of criticism
Amir Khan: 'The Taliban can threaten me but I must speak out... innocent kids, killed over nothing. It’s sick in the mind'

Amir Khan attacks the Taliban

'They can threaten me but I must speak out... innocent kids, killed over nothing. It’s sick in the mind'
Michael Calvin: Sepp Blatter is my man of the year in sport. Bring on 2015, quick

Michael Calvin's Last Word

Sepp Blatter is my man of the year in sport. Bring on 2015, quick