Deception and Qualifications: Revisiting the Ruling in R v Richardson? R v Melin [2019] EWCA Crim 557
| Author | Samantha Pegg,Mark Thomas |
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
| DOI | http://doi.org/10.1177/0022018319866275 |
| Subject Matter | Case Notes |
The Journal of Criminal Law
2019, Vol. 83(4) 298–303
Deception and Qualifications:
ª The Author(s) 2019
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Revisiting the Ruling
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DOI: 10.1177/0022018319866275
in R v Richardson?
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R v Melin [2019] EWCA Crim 557
Keywords
Consent, identity, deception, nature, quality
Ozan Melin was an appeal concerned with the extent to which a deception as to medical qualifications
could sufficiently vitiate consent in a case involving non-fatal, non-sexual offences against a person.
Since such cases as R v Richardson [1999] QB 444, it has been understood that a deception as to
qualifications or attributes of the person concerned is not synonymous with a deception as to identity
and thus cannot vitiate consent. Richardson must now be read, it is understood, in line with the ruling in
R v Tabassum [2000] 2 Cr App R 328 that a deception as to the nature or quality of the action may also
vitiate consent.
Melin (M) had been tried and convicted on two counts of inflicting grievous bodily harm (GBH)
contrary to s 20 of the Offences Against the Person Act 1861 in the Crown Court. M had been acquitted
on a third count of s 20 and on three counts of dishonestly making a false representation.
The case concerned Botox injections administered by M to two complainants, King and Kingscott.
M held no medical qualifications; the issue both at trial and on appeal being whether he had made
any misrepresentations as to holding medical qualifications and whether those misrepresentations
were relied upon by those persons giving consent. In both cases, the treatment had been arranged
through separate third parties, both of whom were beauticians. On 3 July 2013, M administered the
first Botox injection to King and informed her that a ‘top-up’ was available for free, two weeks after
the first, should the treatment not work. King took this opportunity for a second injection on 22 July
and, thereafter, suffered an adverse reaction. At trial, it was disputed as to the time when M had
positively misrepresented himself as being medically qualified. Under cross-examination, however,
King accepted that no misrepresentations as to M holding medical qualifications had been made
prior to the second injection—this, of course, would be relevant to the issue of whether her consent
was reliant upon any misrepresentation. In relation to Kingscott, the first injection took place on 5
November 2011, followed by the free top-up offered by M on 22 November. As with King, King-
scott suffered adverse effects of the treatment subsequent to the second injection. Unlike King,
however, evidence at trial indicated that M misrepresented himself as a doctor, having trained in the
Turkish army and specialising in facial surgery, prior to the first injection. In both cases, the
complainants alleged that they would not have undergone the treatment had they known that M
was not medically qualified.
At the close of the Crown’s case, the defence made a submission of no case to answer to both counts
on two grounds. The first being that an essential element of the offence was not made out, that is, that a
deception as to qualification, following Richardson, is insufficient to vitiate consent, nor does it qualify
as a deception as to identity. Further, as there was a lack of evidence regarding deception as to the nature
or quality of the act, consent could not be vitiated. The second ground submitted was that the evidence
Case Note
299
taken at its highest was not sufficient for a jury properly directed to convict. This ground was based upon
the timing of the alleged misrepresentations.
The trial judge, HHJ Forster QC, rejected these submissions and subsequently directed the jury to
consider, first whether M had made misrepresentations prior to the second treatment and, secondly,
whether the complainants had consented only because they had relied upon the misrepresentations.
Furthermore, the trial judge did not address in his direction to the jury, whether a lack of medical
qualifications impacted upon the nature and quality of the acts consented to (at [22]). The jury convicted
M unanimously, who subsequently appealed to the Court of Appeal on the same grounds raised in the
submission of no case to answer (noted above).
Held, dismissing the appeal on the first ground, there was no error in law made by the trial judge.
Mrs Justice Simler DBE, who provided the sole and unanimous ruling of the Court, considered the case
of Richardson and accepted that a...
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