R v Richardson (Diane)

JurisdictionEngland & Wales
JudgeLORD JUSTICE OTTON
Judgment Date25 March 1998
Judgment citation (vLex)[1998] EWCA Crim J0325-1
Docket NumberNO: 97/6003/Z4
CourtCourt of Appeal (Criminal Division)
Date25 March 1998

[1998] EWCA Crim J0325-1

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Lord Justice Otton

Mr Justice Turner

and

Mr Justice Dyson

NO: 97/6003/Z4

Regina
and
Diana Richardson

MISS C BRADLEY (MR J STRAW) appeared on behalf of the Appellant

MR P WALMSLEY appeared on behalf of the Crown

LORD JUSTICE OTTON
1

In the Crown Court at Nottingham, before HHJ Matthewman QC, following a ruling by the Judge the appellant changed her pleas to guilty on six counts of assault occasioning actual bodily harm. She now appeals against conviction by leave of the Single Judge.

2

The facts can be briefly stated: The appellant was a registered dental practitioner until 30th August 1996 but was suspended from practice by the General Dental Council. Whilst still suspended, she carried out dentistry on a number of patients in September 1996. The mother of two of those patients complained to the police, not because of the suspension, but because she thought that the appellant appeared to be under the influence of drink or drugs. The appellant denied having taken drink, and said that the only drugs that she had taken had been prescribed by a doctor for psychiatric reasons. The police discovered that the appellant had been practising whilst disqualified, resulting in the charges.

3

Before the trial Judge, defence counsel submitted:

(1) That the indictment was an abuse of process and should be quashed. There was a statutory offence of practising or holding oneself out to practise when not qualified contrary to section 38 Dentists Act 1934. Such an offence was statute barred. She was charged on Indictment because of public concern.

(2) The hostile intent requisite for assault was not present.

(3) The patients consented to the treatment, even though they did not know that the appellant was disqualified from practice.

4

The Judge ruled against the appellant on each ground. This appeal is concerned only with the last two grounds. On the third ground the Judge accepted the argument for the Crown that there was fraud here which vitiated the apparent consent. He said:

"It would not be unlawful if there was consent to the act, that is real consent, not one induced by fraud relating to a fundamental fact, that is, as put here, the identity of the person who claims to have acted by consent. The prosecution say here there was such fraud because the apparent consent was on the basis of the identity of a person who was qualified to act and, indeed, a person who was not qualified to act. In my judgment, identity in those circumstances means not merely facial features or other features, bodily features and dress or whatever of a person, identity encompasses other matters, the whole identity and that includes, in this particular case a qualification to practice. The identity presented to the patients—"Mrs Diane Richardson able and presently lawfully dealing with your teeth" which was, in fact, a fraudulent claim and, in my judgment, a fundamental one, it was not merely not having a piece of paper it was a fraudulent total identity."

5

Following these rulings the defendant pleaded guilty to all offences in the indictment.

6

The agreed basis upon which the plea of guilty was tendered was that the appellant had practised while suspended, that the treatment was of a reasonable standard and was carried out on willing patients who had presented themselves for such treatment, and that all of the complainants had been treated by her before her suspension, without complaint.

7

Miss Caroline Bradley on behalf of the appellant now concentrates her argument on the issue of consent. She acknowledges that without consent the surgical procedures carried out were capable of amounting to an assault in law.

8

The general proposition which underlies this area of the law is that the human body is inviolate but there are circumstances which the law recognises where consent may operate to prevent conduct which would otherwise be classified as an assault from being so treated. Reasonable surgical interference is clearly such an exception. Counsel relies upon the dicta of Lord Lane CJ in Attorney General's Reference (6 of 1980) [1981] QB 715 where it was held that an assailant was not guilty of assault if the victim consented to it but that an exception to that principle existed where the public interest required. Lord Lane said at page 719:

"Nothing which we have said is intended to cast doubt upon the accepted legality of … lawful chastisement …… reasonable surgical interference … etc. The apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement … or as needed in the public interest, in other cases."

9

Thus it can be accepted that a person may give lawful consent to the infliction of actual bodily harm upon himself and is justifiable as being in the public interest where reasonable surgical treatment is concerned. But the question then arises, what is the effect on the validity of consent, if any, if the complainant has had concealed from them the true nature of the status of the person who, in the guise of performing a reasonable surgical procedure, subsequently inflicts bodily harm.

10

In Smith and Hogan Criminal Law 8th edition Professor J.C. Smith QC at p.420 states:

"Fraud does not necessarily negative consent. It does so only if it deceives P as to the identity of the person or the nature of the act."

11

This statement of principle is derived from R v Clarence (1888) 22 QBD 23 where the victim consented to sexual intercourse with the accused and although she would not have consented had she been aware of the disease from which D knew he was suffering, this was no assault. Wills J stated at p.27:

"That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law."

12

Stephen J stated at p.44:

"… The only sorts of fraud that so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identify of the person who does the act."

13

There is a clear line of authority concerning fraud and the nature of the act. In R v Williams [1923] 1 KB 340 the appellant, a choir master, had sexual intercourse with a girl of sixteen years of age under the pretence that her breathing was not quite right and that he had to perform an operation to enable her to produce her voice properly. The girl submitted to what was done under the belief, wilfully and fraudulently induced by the appellant, that she was being medically and surgically treated by the appellant and not with any intention that she should have intercourse with him. The Court of Criminal Appeal held that the appellant was properly convicted of rape. Lord Hewart CJ referred to R v Case (1850) 4 Cox CC 220 where a medical practitioner had sexual connection with a girl of fourteen years of age upon the pretence that he was treating her medically and the girl made no resistance owing to a bona fide belief that she was being medically treated. It was held that he was properly convicted of an assault and might have been convicted of rape. The Lord Chief Justice also referred with approval to the dicta of Branson J in R v Dicken 14 Cox CC 8:

"The law has laid it down that where a girl's consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her...

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