Melin, R v

A false representation of professional status may vitiate consent to a medical or cosmetic procedure where that status is inextricably linked to the practitioner’s identity for that activity. The issue depends on the facts. It is not answered solely by whether the procedure legally requires a qualified practitioner.

The prosecution must adduce evidence capable of showing that the representation had an operative effect on consent to the procedure in question. A representation made after the complainant has already decided to proceed may be insufficient. A jury may, however, infer continuing reliance where an earlier representation explains a complainant’s decision to obtain a later treatment.

Following a retrial at Bournemouth Crown Court, the appellant was convicted of two offences of causing grievous bodily harm under section 20 of the Offences against the Person Act 1861. He had administered purported Botox injections to two complainants and was sentenced to four years’ imprisonment on each count concurrently.

He appealed against conviction on the basis that a false claim to medical qualification could not vitiate consent as a matter of law, and that the evidence was insufficient to show that either complainant’s consent to the second treatment depended on such a claim. The court also reviewed sentence after resolving the conviction appeal.

1. The appeal was allowed in part. The conviction concerning Marcelle King was quashed because the evidence was insufficient to show that the appellant’s claimed medical qualification had an operative effect on her consent to the second treatment. The conviction concerning Carol Kingscott was upheld.

2. For offences against the person, fraud will ordinarily negate consent only where it deceives the complainant as to the defendant’s identity or the nature of the act. The court accepted that R v Richardson [1998] 2 Cr App R 200 correctly rejected the proposition that every qualification or attribute forms part of a person’s identity. However, professional status may be inextricably bound up with identity for a particular activity. A positive false claim to be a medically qualified practitioner can therefore vitiate consent if being medically qualified was a condition of the complainant’s consent.

3. Whether that condition was operative is a factual question. The fact that Botox injections could lawfully be administered without a doctor did not decide it. Unlike the non-disclosure in R v Richardson, the Crown alleged positive false representations that the appellant was a doctor.

4. Mrs King had initially expected treatment from a beautician, and the evidence did not establish a representation by the appellant before her first treatment. By the time of the asserted representation before the second treatment, she was already poised to receive it. No properly directed jury could find that the statement operated on her decision to proceed. In contrast, the representation to Ms Kingscott was made immediately before her first treatment. The jury could conclude that she accepted the later free top-up because she believed the appellant medically qualified and would otherwise have refused it.

5. On sentence, the remaining offence involved greater harm and greater culpability: the conduct was planned and reckless, rather than unpremeditated. Applying the relevant mitigation, including remorse, lack of relevant convictions and delay not attributable to the appellant, the court substituted two years’ imprisonment for the concurrent four-year sentences.

• Court of Appeal (Criminal Division) — in [2019] EWCA Crim 557, the court allowed the appeal in part. It quashed the conviction on count 1, upheld the conviction on count 3, and substituted a sentence of two years’ imprisonment on count 3.
• Bournemouth Crown Court — following a retrial, the appellant was convicted on counts 1 and 3 of causing grievous bodily harm under section 20 of the Offences against the Person Act 1861. He was sentenced to four years’ imprisonment on each count concurrently.