HER MAJESTY'S ADVOCATE v. STEPHEN ROBERT KELLY

[2] Yesterday morning I advised counsel that having considered their submissions over the weekend, I felt unable to rule the line of evidence admissible, upon the basis of the evidence that the jury and I have already heard. Accordingly a trial within a trial took place, during which I heard evidence from both Mr Black and Dr McGregor. I shall deal with their evidence shortly. Before doing so, I should outline the circumstances in which the objection was taken.

[5] Mr Findlay objects to the admission of the results of testing the blood samples for HIV for the reason that it would be unfair to admit such evidence, having regard to the circumstances in which the accused came to provide the three blood samples - one to the Prison medical authorities, on 25 June 1993, and the other two to the Ruchill Counselling Team, on 29 June 1993 and 6 July 1993. It was also argued that were I to admit the evidence, that would breach the accused's right to protection against self-incrimination.

[10] Miss Thomson has also given evidence that after the laboratory had reported on the testing of the sample provided on 29 June 1993, she had a further meeting with the accused at Glenochil Prison. This second meeting was approximately one week after the first meeting. At this second meeting Miss Thomson informed the accused that he had tested HIV+. She gave him some counselling in the light of that result.

[12] On the basis of the evidence I have heard it is unclear when the Ruchill team received notification of the results of the blood sample provided on 6 July 1993. It would appear from the prison medical records that the results of the blood sample provided by the accused on 25 June 1993 were not received by the prison medical authorities until 22 July 1993. The delay may be attributable to the fact that that particular blood sample was submitted to the laboratory through Stirling Royal Infirmary.