Ian Paterson v Regina

An extension of time to appeal against conviction is granted only where the interests of justice require it. The court must balance finality, the interests of all parties, efficient administration, the public interest, the applicant’s liberty and the merits of the proposed appeal. An arguable ground is not, without more, decisive.

A lengthy, deliberate and insufficiently explained delay will ordinarily justify refusal unless refusing an extension would cause injustice. On the facts advanced, the court also considered that apparent consent to surgery could be vitiated where a doctor knowingly and dishonestly misrepresented a patient’s true medical position for an improper collateral purpose.

The applicant, a consultant breast surgeon, was convicted at Nottingham Crown Court in April 2017 of 17 offences under section 18 and three offences under section 20 of the Offences Against the Person Act 1861. The prosecution alleged that he knowingly misrepresented patients’ medical conditions and cancer risks in order to procure their agreement to unnecessary and invasive surgery.

He was originally sentenced to 15 years’ imprisonment. Following an Attorney General’s reference, the Court of Appeal increased the sentence to 20 years’ imprisonment: R v Paterson [2017] EWCA Crim 1625. Nearly three years and nine months after conviction, he sought an extension of time and leave to appeal against conviction. He argued that the trial directions wrongly treated the issue as one of negligent medical treatment and wrongly held that the patients’ consent could be invalidated.

1. The applications for an extension of time and for leave to appeal were refused. The explanation for the delay was wholly inadequate. There was an unexplained 19-month delay before fresh solicitors were contacted, a deliberate decision to defer an appeal for a further year, and a further substantial delay before grounds were lodged. The applicant had received leading and junior counsel’s advice at trial, and the proposed grounds required no difficult factual investigation.

2. Under section 18(3) of the Criminal Appeal Act 1968, the question is whether an extension is in the interests of justice. Applying the approach in R v Thorsby and ors [2015] EWCS Crim 1, the court had regard to finality, the interests of the complainants and applicant, efficient use of resources, good administration, the public interest and the merits. An arguable appeal is not a trump card. Where there is no good reason for non-compliance with the time limit, an extension is unlikely unless refusal would cause injustice.

3. The merits did not justify a different conclusion. The prosecution case was not that clinically unreasonable treatment itself invalidated consent. It was that the applicant knowingly deceived patients about their medical position and induced them to consent to procedures which no responsible body of qualified breast surgeons would have advised. In those unusual circumstances, the court was not persuaded that the directions on consent and mens rea for offences under the Offences Against the Person Act 1861 were arguably contrary to authority or erroneous. A full examination of the authorities on consent and the medical exemption was unnecessary on this refused application.

• Court of Appeal (Criminal Division): refused an extension of time and leave to appeal against conviction in [2022] EWCA Crim 456.

• Court of Appeal (Criminal Division): on an Attorney General’s reference, quashed the original sentences and substituted concurrent sentences of 20 years’ imprisonment: R v Paterson [2017] EWCA Crim 1625.

• Crown Court at Nottingham: convicted the applicant on 28 April 2017 and sentenced him on 31 May 2017 to 15 years’ imprisonment.