No: 199907730-W5-200001607/W5 IN THE COURT OF APPEAL
Royal Courts of Justice
Thursday 11th May 2000
B E F O R E :
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE IAN KENNEDY
MRS JUSTICE HALLETT
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R E G I N A
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR I MACDONALD appeared on behalf of the Appellant
MR J GROUT-SMITH appeared on behalf of the Crown
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(As approved by the Court)
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Crown Copyright Thursday 11th May 2000
1. THE VICE PRESIDENT: On 30th November 1999 at Preston Crown Court, following a trial before His Honour Judge Livesey QC, the appellant was convicted on three counts of indecent assault, on three different female complainants. Counts 1, 3 and 4 related to those offences. No evidence was offered on count 2 which also alleged indecent assault, and the appellant was acquitted on that count on the direction of the judge. 2. The appellant had been previously tried but the jury had been discharged from giving verdicts at the close of the prosecution case. Following an adjournment for reports, on 21st February 2000, the appellant was sentenced to 9 months' imprisonment on each count concurrently.
3. He appeals against conviction by leave of the Single Judge who referred to the Full Court his application for leave to appeal against sentence.
4. In outline, the prosecution case was that the appellant had asked several women to take part in what he said was a breast cancer survey to enable him to prepare a database software package for sale to doctors. The three complainant women agreed to the appellant showing them how to examine their own breasts. That involved the appellant, himself, feeling the breasts of two of the women and using a stethoscope beneath the bra of the third woman. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training. He had neither. There was no evidence of any sexual motive.
5. The defence case was that the appellant was collecting information for the database and he did no more than each of the complainants consented to. He touched their breasts, to show them how to examine themselves and they each consented to that. He had no medical qualifications, but he did have experience in the field of breast cancer.
6. Somewhat unusually, at the outset of the trial, a submission was made by Mr MacDonald QC, then as now appearing for the defendant, that the judge should stay the case on the basis that the prosecution could not prove the absence of consent and therefore no assaults had taken place. The submission was made then, because this was the same judge who had presided at the first trial and he had, of course, during the first trial, heard the evidence of the complainant women. It is unnecessary to analyse further the propriety or wisdom of making a submission at the outset of the case in this way, because, in due course, the submission was formally repeated at the close of the prosecution case. The question at the heart of this appeal is whether or not the submission, whenever made, was well-founded.
7. The grounds of the submission are repeated in this Court and to those we shall shortly return. First, we refer, in summary form, to some of the evidence. The complainant in relation to count 1 had first met the appellant at the beginning of 1996, when she did a computer course on which the appellant was a lecturer. He told her that he had worked at Christies, the well-known cancer hospital in Manchester and that he was a breast cancer specialist. She thought he was a doctor, who was doing his lecturing in the evenings. She understood that he had medical training in the breast cancer field.
8. After she had completed her course, she and her husband employed the appellant to carry out some computer work for them. In connection with this, he attended their home.
9. The time came when he told her that he was going to do a study on breast cancer; he was compiling a questionnaire and would market his research to doctors. She thought it was a good cause; she trusted him.
10. A meeting occurred between the two of them at which, on 18th July 1997, she completed and signed the questionnaire. The appellant took her blood pressure and pulse. He referred to the desirability of using a chest height mirror. He had a bag, looking like a doctor's bag, from which he took a stethoscope. He examined her chest. He asked her to remove her bra, in order for him to show her the right way to examine her breasts. She did so. He applied his fingertips on the outside of her breast and worked towards the centre. He pressed her nipples between his thumb and index finger and told her to look out for a discharge. The examination took three or four minutes. She told the jury she would not have allowed the appellant to touch her if she had known he had no relevant qualifications. They discussed medical matters. He expressed his opinion on the treatment of her children's ailments.
11. A little later, in order, as it was said, to assist the appellant with his database, he asked her some questions, including her bust size and told her that she would have to take her top off again. She said no, she had done that once and made it obvious that she wanted him to leave. He went quiet, as she put it, and that was the last time she saw him. He had never told her that he was a doctor, but she was under the impression that he was and he had said he was a breast cancer specialist. There was no sign of any sexual excitement on the defendant's behalf. None of the actual qualifications which he did have would have led her to consent to him touching her breasts.
12. The complainant on count 3 knew the appellant. In September 1997 he came to her house and said that he was doing a survey on breast cancer. He seemed very knowledgeable. He left her with the impression that he had medical experience. She agreed to take part in the survey, knowing it involved an examination. For that purpose the appellant came on the evening of 3rd October 1997 to see her. She filled in a questionnaire, and signed the consent form. He took her pulse and blood pressure. He took a stethoscope from his black bag and asked her to remove her top and bra. He thoroughly examined her breasts, pushing them with his hands and squeezing her nipples. He said it would be better if she lay down. She lay on a chair. He examined her again and the examination took 20 minutes. She would not have allowed him to touch her if she had known he had no medical training, which he had led her to believe he had.
13. The complainant on count 4 met the appellant on a college course where he lectured. She did not know either of the two other women. In October 1997 he gave her a form about breast cancer and said that he was building up a database. She filled in the questionnaire. She asked if he was a doctor and he said no, but he was helping doctors with the database. He came to her house on 10th October 1997. He checked her blood pressure, pulse and heart. She again asked him if he was a doctor and he said he was not but he had done a lot of work for Christie's cancer hospital. He asked if he could examine her. She refused. He checked her blood pressure and heart again and went beneath her bra with his stethoscope. He then asked again if he could examine her. Again she refused and he left after about an hour. She would not have let him touch her if she had known that he did not work at Christies hospital, where she thought he had been training.
14. A Miss Hamlyn, a director of a company called Bristol Myers, gave evidence of that company having employed the appellant in July 1995, as a hospital representative, to call on doctors and tell them about the availability of drugs. He had received training on drugs and treatable diseases. In February 1996 he had scored 86% in an examination relating largely to breast cancer but, the following May, he failed a test on cancer by a very substantial margin and that led to the termination of his employment due to his lack of technical knowledge. Her company produced hand-outs on how to examine breasts, for use by doctors, to give to their patients.
15. A highly experienced breast care nurse at Christies, with a Masters degree in medical ethics, gave evidence that a number of the questions on the appellant's questionnaire, for example, as to the duration of periods and the size of busts, were not relevant to breast cancer, nor were blood pressure or pulse readings, nor was the use of a stethoscope to examine the chest or back.
16. The appellant was arrested on 12th October 1997. At his house the police found copies of the questionnaires, a pulse monitor, a stethoscope and leaflets and slides showing breast diseases. In interview, he admitted knowing the three complainants but denied telling them that he had any medical knowledge. He said he had told them about the questionnaire which was part of a project for a database for general practitioners. He would examine the woman's breasts, in order to show the woman how to do it herself. He had taken blood pressure and examined their chest and back.
17. So far as the complainant on count 1 was concerned, she had agreed to the examination. He denied telling her to take her top off. She had done it of her own initiation. He denied squeezing her nipples. He agreed he had no medical qualifications and had never been trained to examine breasts, but he had learned about diseases through his work. He denied that he had handled the breasts for sexual gratification. He denied, so far as the second complainant was concerned, having examined her breasts twice, but he said he might have touched her nipples. He only examined women if they wanted him to show them the procedure. He wanted them to know they were doing it properly and it was not for sexual gratification on his part. He had never deliberately misled them. He had not, at the time of his arrest, actually started the database, because he did not have enough details.
18. When he was charged, he said he had not acted or pretended to be a doctor or committed the assault. He gave evidence before the jury. He was a man who not only had no previous convictions, but had both a Chemistry degree and Master of Science degree. He had worked as a medical representative, selling drugs to doctors and hospitals, and he also had done a Masters degree in business administration, based on the use of IT in training doctors. He had started lecturing in IT in 1996. He had, he said, worked for Bristol Myers as an oncology hospital specialist and he had gained knowledge about breast cancer and seen there was a need for a database. He had himself prepared a leaflet for self- examination of the breast.
19. He did not dispute the evidence which the first complainant gave. He said that at no stage did he not have her consent to what he did. He did deny asking her to take her top off a second time. The second complainant had consented to him showing her the procedure which involved him feeling her breasts. The third complainant had consented to being examined with a stethoscope and she had asked him if he was a doctor and he had said no. He agreed with the evidence which she gave. He agreed, in cross-examination, that he had no medical qualifications. He thought he was right to describe himself as having had medical training, but his knowledge had all been gained from his employment as a medical representative. No one had ever trained him to examine a breast for breast cancer.
20. The safety of the appellant's conviction is challenged by Mr MacDonald on two grounds. First, he submits that the judge was wrong to reject the submission made to him and to rule that, in the light of the evidence which the complainants were to give and did give, the case was capable of proceeding before the jury on the issue of consent.
21. Mr MacDonald drew attention to the way in which the judge, in his summing-up, ultimately directed the jury. At page 4F, in the course of directing the jury as to the elements of indecent assault, he said this:
"Was it unlawful? That is was it done without the consent of these women or any of them? That, members of the jury, is the vital question for you to decide in this case. Now, of course, it is right and correct to say that what these women consented to certainly in 2 of the 3 cases was to take off their clothes and to allow this man to feel their breasts. But if you are satisfied to the extent that I have indicated as a matter of fact that they only did so because they believed that this man had medical qualifications, then their consent has been negated and so it is not a true consent.
So, if you find that one or more of these women only consented to what occurred on the basis that this man had medical qualifications, then I must tell you that their consent is not a true consent because what they agreed to was an examination by a person who had medical qualifications which we know that this defendant does not have and if that is right, then the assaults would have been unlawful.
During his first interview which is Exhibit 11 on page 5, he was describing the training that he had with these various drug companies and he was asked:
Q. As any part of that training, were you given the opportunity to physically examine women patients? A. No.
Q. Why do you think that was? A. Because we're not medically qualified.
[The first complainant] told you 'I would not have allowed him me to touch me if I had known he had no qualifications.' [The second complainant] told you 'I would not have allowed him to touch me if he had had no medical training.' [The third complainant] told you 'I would not have let him touch me if I had known that he did not work at Christies.'
So, if and only if you accept that evidence and I stress it is a matter of fact for you, if you accept that evidence, then there was no consent and, therefore, the assault was unlawful."
22. Mr MacDonald says, rightly, that in that passage the judge did not refer to the nature and quality of the act, which was a matter to which the submissions before him, when he was invited to rule on the matter, had been directed. In the course of his ruling, the judge at page 2F said this, in rehearsing the submissions of counsel for the Crown:
"What they consented to was a medical examination by a person with medical qualifications and not a sexual act. Mr MacDonald's reply to such a submission is that the nature and quality of the act is the same and it does not change."
23. The judge went on to refer to a passage in the judgment of Stephen J, in R v Clarence  XXII QB 23 at page 44, which we shall cite at a later stage. The judge went on page 3E to say this:
"I accept the submissions made on behalf of the Crown and have come to the conclusion that what these women consented to was a medical examination to be carried out by a person with medical qualifications and not to a sexual act and, therefore, the nature and quality of the act has changed from that with which they consented."
24. In challenging that ruling, and the way in which in due course the learned judge left the matter to the jury on this aspect of the case, Mr MacDonald referred to a number of authorities. In R v Linekar  QB 250, Morland J, giving the judgment of the Court, at page 255b said this, having referred to R v Flattery  2 QB 410 and R v Williams  2 KB 340:
"...it is the non-consent to sexual intercourse rather that the fraud of the doctor or choir master that makes the offence rape."
25. At page 259c, Morland J quoted, among other passages, that passage from the judgment of Stephen J in Clarence which the judge himself rehearsed in the course of his ruling:
"'There is an abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should myself prefer to say that consent in such cases does not exist at all, because the act consented to is not the act done'... 'Consent to a surgical operation or examination is not a consent to sexual connection or indecent behaviour.'"
26. Mr MacDonald accepts that there will be no genuine consent if, in the present circumstances, a woman is misled either as to the identity of the man who does the acts complained of, or as to the nature and quality of the act done. But, he submits, the nature and quality of the act, albeit not merely related to the act itself, but including the immediate conditions effecting its nature, does not, as he put it, "extend back" to the qualifications of the defendant. 27. Mr MacDonald referred to R v Richardson  2 Cr App R 200, in which the patient believed that she was receiving dental treatment which otherwise would have given rise to an assault occasioning actual bodily harm, from a dentist who had in fact been struck off the register. The Court in that case held that the identity of the defendant was not a feature which, in that case, precluded the giving of consent by the patient. Mr MacDonald submits that, because the identity of the defendant was different from that which the patient believed it to be, that changed the nature and quality of the act, yet, in that case, Richardson, the conviction was quashed.
28. He submits that to impose criminal liability in the circumstances of the present case would be to extend the criminal law beyond its existing boundaries. In his written submissions, he submitted that the case law establishes that, where an undoubted consent is given, it can only be negatived by deception or mistake and if the victim has been deceived or is mistaken as to the identity of the perpetrator, or the nature and quality of the act is different from that for which consent was given. Consent is not negatived merely because the victim would have agreed to the act if he or she had known all the facts. In Clarence, the wife would not have consented to sexual intercourse with her husband if she had known that he had a venereal disease. In Richardson, the patients would not have consented to dentistry if they had known the dentist had been struck off. In Linekar, the prostitute's consent to sex was not negated by cheating over payment.
29. On behalf of the Crown, Mr Grout-Smith, who prosecuted in the court below, in helpful written submissions, submits that the judge was right to rule that consent to an act that is different in nature from the act performed is not a consent to the act performed. He relies on Clarence, and a decision of the Saskatchewan Court of Appeal in Harms  2 Dominion Law Reports page 61.
30. The judge correctly ruled, he submits, that the complainants, if their evidence was accepted, consented to a medical act and not a sexual act. As the defendant had no medical qualifications, he could not have been touching the complainants' breasts for a proper medical purpose. The judge was correct to rule that sexual motive was irrelevant - as to which see Court  AC 28 and R v C  Crim LR 642.
31. The direction to the jury that they could only convict on any count if they were sure that the complainant only allowed the appellant to touch her breasts because she thought he was medically qualified, was sufficient to ensure that they would only convict if they were sure that the complainants consented to acts medical in nature.
32. The second criticism which Mr MacDonald advances is that the judge failed adequately to direct the jury as to the necessary element of mens rea on the part of the defendant. What the judge said, at page 7C, was this:
"Did he intend to assault these three women? Or did he believe that he had their consent when, in fact, he did not? Well, members of the jury, if you accept that what he told these ladies was half truths and perhaps lies, then clearly it is not far of a step to come to the conclusion that he must have known that he did not have their consent and he must have intended to indecently assault them."
33. Then at page 47B, the judge this:
"The defence say to you that what this man did was no more than what each of these women consented to. He touched their breasts and they consented to that and, say the defence, the prosecution must also prove that the defendant knew that he did not have their consent. Well, members of the jury, of course we cannot look into his mind as to what he knew or did not know but if you come to the conclusion that he told lies or half truths when addressing these women, then you may have no difficulty in concluding that he knew perfectly well that they did not consent and would not have done so had he not said this. But that, of course, is entirely a matter for you. It is a matter of fact."
34. Mr MacDonald referred the Court to R v Kimber 77 Cr App R 225. There, it was held that the prosecution has to prove that the defendant intended to lay hands on the victim without her consent and, if he did not intend to do this, he is entitled to be found not guilty. If he did not so intend because he believed she was consenting the prosecution would have failed to prove the charge:
"It is the defendant's belief, not the grounds on which it was based, which goes to negative consent."
35. Mr MacDonald submits, in his written submission, that the judge failed to give the jury any direction as to the reasonableness of the defendant's belief in the complainant's consent. 36. In our judgment, the pertinent authorities, in relation to Mr MacDonald's first submission, can properly be analysed in this way. The wife in Clarence, and the prostitute in Linekar, each consented to sexual intercourse knowing both the nature and the quality of that act. The additional unexpected consequences, of infection in the one case and non payment in the other, were irrelevant to and did not detract from the woman's consent to sexual intercourse.
37. In Richardson, the case proceeded solely by reference to the point on identity. As is apparent from page 205F of the judgment, the prosecution in that case did not at trial or on appeal rely on the nature or quality of the act. In our judgment, the learned judge was entitled to follow the passage in the judgment of Stephen J in Clarence, which he cited in the course of his ruling. In the present case the motive and intent of the defendant were irrelevant (see R v C to which reference has already been made.) The nature and quality of the defendant's acts in touching the breasts of women to whom, in sexual terms he was a stranger, was unlawful and an indecent assault unless the complainants consented to that touching.
38. On the evidence, if the jury accepted it, consent was given because they mistakenly believed that the defendant was medically qualified or, in the case of the third complainant, trained at Christies and that, in consequence, the touching was for a medical purpose. As this was not so, there was no true consent. They were consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality. Flattery and Harms, which we have earlier cited, are entirely consistent with that view because, in each of those cases, the woman's consent to sexual intercourse was to a therapeutic, not a carnal, act. A similar principle underlies the decision in Rosinski, as long ago as 1824, reported in 1 Moody, 1168. It follows that, in our judgment, the judge's ruling was correct.
39. As to the criticisms of the judge's directions on mens rea, there was, as it seems to us, no need for the judge to direct the jury as to the absence of evidence that the defendant's conduct was intended to be sexual. The touching was prima facie indecent, as we have said. Whether the defendant had any sexual motive or intent was irrelevant. The only issues were consent and whether the defendant may have believed that the complainants were consenting.
40. As to that, the directions which we have quoted were, as it seems to us, entirely adequate. The reasonableness or otherwise of any such behalf on the defendant's part called for no direction, in our judgment: for the issue was not whether any belief which the defendant had was reasonable, but whether there may have been, on his part, any belief at all that the victims were consenting. Unlike the trial judge in Kimber, this trial judge gave, as it seems to us, an appropriate direction on this aspect of the matter. It follows that the appeal against conviction is dismissed.
41. As to sentence, Mr MacDonald submits that 9 months was, as he put it, manifestly too long: he stresses that this was an unique case, in the sense that that there was no evidence of sexual motivation so, in consequence, the conduct here equated with common assault. Because of the unique nature of the circumstances it would not have been appropriate for the judge to impose a deterrent sentence because such conduct is not, nor could be, expected to be of particular prevalence.
42. Mr MacDonald recognises that there would, so far as each of these complainants is concerned, be an element of shock and humiliation when they discovered the quality of the act which had been done to them. As against that, the appellant is of positive good character, who has always had an ambition to become a doctor and this lay behind his wish to establish the database to which earlier we referred. Mr MacDonald stresses that, in the family context, the appellant took responsibility for his brothers and sisters, following a serious accident involving their parents. Mr MacDonald submits that, if the custody threshold was passed in this case, the sentence imposed should be as short as possible.
43. To all of these matters we pay regard. In our judgment, on the interpretation of these facts most favourable to the accused, he was playing at being a doctor. Conduct of the present kind emanating from such role playing is such as to require a custodial sentence. Women's confidence in examinations of this kind is likely otherwise to be gravely undermined.
44. Following a trial, in our judgment, it is impossible to say that the sentence of 9 months passed by the learned judge was, even arguably, manifestly excessive. Accordingly, this application in relation to sentence, is likewise refused.
45. MR MACDONALD: I am wondering if your Lordships would be prepared to certify a point of law in this case?
46. THE VICE PRESIDENT: What is it?
47. MR MACDONALD: It runs something like this: 'If the victim of an alleged assault consents to what is done only on the basis that the defendant has certain training or qualifications and this is not the case, does this mean, as a matter of law, that the quality of the act, which forms part of the assault is so changed that there is no act to which consent has been given?'
48. MR JUSTICE IAN KENNEDY: Why do you say "part of the assault"?
49. MR MACDONALD: Well, it is the actus reus of the assault.
50. MR JUSTICE IAN KENNEDY: Then it forms the assault, yes.
51. MR MACDONALD: Sorry, it is a slightly off the cuff matter. I put down quality rather than nature and quality of the act because in the Court's judgment you made a distinction between those. The implications of your Lordships' judgment would, I think, mean that if a case like Richardson was relitigated that the act of the dentist would in fact be an assault.
52. THE VICE PRESIDENT: Is that to be part of your certifiable questions?
53. MR MACDONALD: No, it is not, I am moving on from that. That would be the... I do not say it is the final formation, but a slightly off the cuff effort while your Lordships were giving judgment, to indicate what we submit is an important question of law that arises from your Lordships' judgment: our submission that, which is faithfully reproduced in your Lordships' judgment that the effect of I agreeing to what the learned judge did, would in fact be extending criminal law beyond its existing boundaries.
54. THE VICE PRESIDENT: I do not think it is necessary, at this stage Mr MacDonald, for you to rehearse the submission you made. You were particularly kind enough to say they were accurately rehearsed in the judgment.
55. MR MACDONALD: No, I am not, my Lord, I am simply, I have to indicate to your Lordships that any point of law has to be of general public importance and so I am indicating that it is your Lordships' ruling does not confine itself merely to the particular factual situation of this appeal. That is all.
56. THE VICE PRESIDENT: Mr Grout-Smith, do you want to say anything about this question?
57. MR GROUT-SMITH: My Lord, I am bound to say, had the appeal gone the other way, I was instructed to make a similar application. So, it would be adverse of me to say anything against the application now.
58. THE VICE PRESIDENT: Thank you.
59. Mr MacDonald, we are not minded to certify in this particular form. We think it can be improved. We give you the opportunity to have another go. This constitution will be together only until Thursday of next week. If, in the meantime, you and Mr Grout-Smith can agree a form of words, it may not be necessary for you to appear in person, provided you send it in writing for us to consider.
60. MR MACDONALD: I am grateful.
61. THE VICE PRESIDENT: Thursday of next week is the last day that we contemplate all being together.
62. MR MACDONALD: We will try to have something to your Lordships by Monday, if we can.
63. THE VICE PRESIDENT: Thank you.