Criminal

Indecent assault - complainants consenting to breast examination for medical purpose - defendant not medically qualified - no consent to indecent behaviour R v Tabassum: CA (Rose LJ, Ian Kennedy and Hallett JJ): 11 May 2000

The defendant was charged with offences of indecent assault.

The three complainants said that they had consented to the defendant touching their breasts because they believed that he was medically qualified and that they were taking part in a breast cancer survey.

They said they would not have consented if they had known he had no medical qualifications.

An application was made that the case should be discontinued because the complainants' undoubted consent was not negatived by the deception, which had not changed the nature and quality of the act.

The judge ruled against that submission and the defendant was convicted.

He appealed against conviction on the grounds that the judge's ruling was wrong.Ian Macdonald QC (assigned by the Registrar of Criminal Appeals) for the defendant.

Jeremy Grout-Smith (instructed by the Crown Prosecution Service, Preston) for the Crown.Held, dismissing the appeal, that consent had been given by the complainants to the touching of their breasts for a medical purpose - they did not consent to indecent behaviour; that there had been consent to the nature of the act but not to its quality; that consent did not exist where the act consented to was not the act done and consent to a surgical examination was not consent to indecent behaviour; and that accordingly, the judge's ruling was correct.

(WLR)