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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kumar v R [2006] EWCA Crim 1946 (28 July 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/1946.html Cite as: [2006] EWCA Crim 1946

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT PRESTON
JUDGE BLAKE
T2002 0436

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2006

Lord Justice Scott Baker:

1. These are the Court's reasons for dismissing the appellant's appeal against conviction.
2. In November 2002 in the Crown Court at Preston before Judge Blake the appellant was convicted of three counts of indecent assault. He was acquitted of two further counts of the same offence – one on the judge's direction. On 3 January 2003 he was sentenced to 9 months imprisonment concurrent on each offence.
3. He appeals against conviction with the leave of the Full Court but only in respect of one count – count four. The Full Court refused the renewed application on the other two counts.
4. Both the appellant and his wife were general practitioners at a practice in St Helens. The appellant also worked as a locum for other local practices. On 3 September 2001 an allegation was made that the appellant had indecently assaulted a patient when working as a locum in Liverpool. A police investigation followed and it was discovered that a past complaint had been made by Mr Keenan, the father of the complainant in count four. A statement was taken from her which, referred to the previous incident but also to a further allegation relating to 27 July 2001 when the appellant had examined her breasts. This allegation became count four.

Facts

5. Alison Keenan was 17 when she saw the appellant for the first time to go on the pill. He asked her questions which she was shocked by. She went straight home and told her mother. The questions were about how old she was when she first had sex, how many men she had been with and whether she charged for sex. This visit was in June 2000 and led to a complaint by Alison's father to the Health Authority.
6. On 27 July 2001 she found a lump on her breast and went to the appellant's surgery. She undid her shirt and pointed to the lump above her bra. He told her to take her shirt and bra off which she did. He came round to the side of her and examined both breasts and under her arms. His head was very close, touching her. He pressed hard for about 5 minutes and then said it could be mastitis. She was upset and went home and told her mother.
7. Sylvia Burton was the receptionist, and later practice manager, at Irwin Road Medical Centre throughout the relevant period when Alison Keenan was a patient. On 27 July 2001 she recalled Alison Keenan coming to the surgery. She was not chaperoned in the consultation. Miss Keenan came out of the consultation room looking stunned and left without saying a word. When cross-examined she said she had resigned in October 2001 because she was unhappy about the way she was treated by the appellant and his wife. When she left she said words to them beginning with "what goes around, comes around".
8. The appellant gave evidence of his qualifications and professional history. He agreed the correct way to carry out a breast examination was with the patient lying down. He had carried out a new patient health check on Alison Keenan on 12 June 2000 and whilst there would have been some questions of a personal nature these were not questions of the nature complained of.
9. On 27 July 2001 Alison Keenan came to see him urgently because of a lump on her breast. In the circumstances he gave her a breast examination. This was the one occasion he did one, as he generally did not do such examinations. He said the examination was done with the complainant lying down and on the couch in the presence of Mrs Burton as a chaperon. He denied listening to her chest, which he accepted would not have been part of a legitimate examination. The issues at the trial were how the examination was carried out and whether Mrs Burton was present.
10. When the judge came to sum up the case, he directed the jury that an indecent assault was an assault which is accompanied by circumstances of indecency. He continued at page 4:

"So breaking that down further, an assault is a deliberate, unwanted touching – in other words, in some way hostile, and which is inflicted upon the victim without his or her consent. In circumstances of indecency? That is for you to decide whether, if you are sure that there was a deliberate unwanted touching on the part of the defendant, whether it was in circumstances of indecency, whether right-minded persons would consider that conduct indecent or not. The test is whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent."

11. He pointed out that the alleged assaults took place in the doctor's consulting rooms so it was pretty obvious the patient was consenting to being examined. But it was also clear that they were not consenting to being touched in an indecent sexual way. In other words their consent extended to an appropriate medical consultation and examination but no further. He continued at page 5:

"So the issue in this case is whether the Crown have proved that Dr Kumar was acting lasciviously for his own gratification, or whether it might be true that he was carrying out a proper medical consultation and examination. It is not necessary to prove that the victim knew that his actions were indecent at the time. And the converse is also true, that simply because the patient thought that the doctor's actions were indecent, that does not necessarily make the case out. It is the intention of the defendant which is important in deciding whether they are in circumstances of indecency."

12. It is important to have in mind that the Crown's case was that a breast examination for Alison Keenan was clinically indicated but that the way the appellant carried it out was wholly improper and demonstrated an intention to use it as cover for indecently assaulting her. This was emphatically not a case of a doctor carrying out a clinically indicated procedure in a proper manner but having a sexually indecent intent.
13. The Full Court gave leave to appeal because of the answer that the judge had given to a question asked by the jury. The question which related to the count which is the subject of this appeal was as follows:

"Offence of indecently assaulting. If breast examination is required what constitutes the offence?"

14. The judge said the simple answer was whether they were certain the defendant intended to obtain sexual gratification from the examination. But he then expanded:

"In relation to Alison Keenan, there is no issue that a breast examination was indicated clinically, there is no issue about that, and so there are various sets of circumstances as to the defendant's intention, because that is the important thing, as to whether the examination was a perfectly proper medical examination which would therefore not constitute an assault. Because of course a patient who agrees to an examination is consenting to just that, a medical examination. So therefore, if you are looking at the defendant's intention – and of course before you convict you must be sure about it – you might conclude that this intention was to obtain sexual gratification alone. No problem there, your conclusion in those circumstances would be "guilty". You may think that his intention might have been to obtain clinical information – straight-forward medical examination – but there again, no real difficulty, your verdict on that would be "not guilty". You may come to the conclusion and be satisfied that his intention was a dual intention, that he intended to carry out the examination because it was indicated clinically, but he also had an intention at the outset to obtain sexual gratification. In other words, he was using the legitimate breast examination, which was indicated clinically, as a cover to obtain sexual gratification and that was what his intention was at the outset. Then your verdict would be "guilty". It may be that you would say perhaps the situation is this, that he knew that a medical examination was indicated and that is what he intended to carry out, but in the course of the examination he, as a bi-product and not intending it, obtained sexual gratification. In those circumstances your verdict would be not guilty."

15. So the judge raised four different possibilities:

(1) Sole intention to gain sexual gratification – guilty;

(2) Sole intention to gain clinical information – not guilty;

(3) Dual intention – legitimate breast examination as cover, with that intention from the outset – guilty;

(4) Medical examination indicated and that was what he intended when carrying it out but in the course of examination and not intending it, he got sexual gratification – not guilty.

16. Mr William Coker Q.C., who has appeared on this appeal for the appellant submits that the judge's direction falls foul of the decision of the House of Lords in R v Court [1989] AC 28. Moses J. gave leave to appeal because, he said, it was strongly arguable in the light of Court that using a legitimate breast examination as cover for indecent assault when the doctor intended from the start to obtain sexual gratification did not make him guilty of indecent assault. He referred to Lord Ackner at 42C:

"It was also common ground before your Lordships, as it was in the court of appeal, that if the circumstances of the assault are incapable of being regarded as indecent, then the undisclosed intention of the accused could not make the assault an indecent one."

He also referred to Lord Goff of Chieveley at 49G:

"A requirement that the defendant must have acted from a sexual motive, which I understand to be from the motive of obtaining sexual gratification from his act, would, as Professor Glanville Williams recognises, exclude from indecent assault cases where a man undressed a woman in public but did so not from the motive of obtaining sexual gratification, but because he was a misogynist, or because he wanted to cause the woman embarrassment, or out of sheer mischief. I cannot think that this is right. In their judgment, the Court of Appeal referred to the case of an examination of a 15 year old girl by a midwife or doctor for medical purposes, the point being that, by virtue of section 14(2) of the Act of 1956, a girl under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of the section. Professor Glanville Williams considers that such a case would not amount to indecent assault because the doctor or midwife acted from a non sexual motive. The Court of Appeal expressed their disagreement with this view, in the following passage from their judgment [1987] QB 156, 164:

"In our judgment it is not necessary to infer a requirement of proof a sexual purpose, or of an indecent intention, for proof that a person has made an indecent assault, in order to protect from the theoretical risk of conviction for indecent assault the midwife or doctor who intimately examines the girl under the age of 16 without effective consent. If consent has been given by the parent or guardian there is, of course, no assault. If no such consent has been given, an intimate examination carried out for genuine medical purposes is, in our view, not indecent. Neither the girl examined, nor the right thinking members of society, would regard such an examination as an affront to the modesty of the girl or conduct which contravened normal standards of decent behaviour. So long as the examination is carried out for genuine medical purposes in a manner and in circumstances consistent with those purposes, then in our view the fact that the doctor or midwife happens to have some secret indecent motive, or happens to obtain sexual gratification known only to himself from carrying out his legitimate work, cannot in our view render the circumstances indecent."

I entirely agree. As I see it, it is the fact that the assault is objectively indecent which constitutes the gravamen of the offence, which is to be found in the affront to modesty."

17. It seems to us that the Court of Appeal makes an important qualification about the examination by the doctor or midwife in the clause:

"So long as the examination is carried out for genuine medical purposes in a manner and in circumstances consistent with those purposes……" (Our emphasis).

The issue in the present case was about how the examination was carried out.

18. The facts of Court were very different to those of the present case. The appellant, an assistant in a shop, struck a 12 year old girl visitor some 12 times, for no apparent reason as she thought, outside her shorts on her buttocks. In response to a question by the police as to why the appellant had done so he said "I don't know – buttock fetish." He pleaded guilty to assault but denied that it was indecent and submitted that his statement about "buttock fetish" should be excluded as being a secret uncommunicated motive that could not make indecent an assault that was not overtly indecent. The trial judge refused to exclude the statement and the appellant, who did not give evidence, was convicted. The Court of Appeal (Criminal Division) dismissed his appeal against conviction. He appealed to the House of Lords. The House of Lords (Lord Goff dissenting) held that where a charge of indecent assault was founded on facts capable of being given an innocent as well as an indecent interpretation it was necessary for the prosecution to prove not only that the accused intentionally assaulted the victim but that in doing so he intended to commit an assault which right minded persons would think was indecent; and that evidence as to the accused motive tending to explain the course for his conduct was admissible to establish whether he intended to commit not only an assault but also an indecent assault; and that accordingly the evidence concerning the appellant's statement about buttock fetish had been properly admitted.
19. The defendant in Court was not a medical practitioner and the case was not about a medical examination at all. It is, we think, important to appreciate why it was that the Court of Appeal considered the position of a medical practitioner and why Lord Goff referred to it in his dissenting opinion. What happened was that the jury asked the judge a question expressing concern about the position of a doctor who carried out an intimate examination of a young girl. The trial judge, Mars-Jones J. answered the question in this way:

"In that situation what is vital is whether the examination was necessary or not. If it was not necessary, but indulged in by the medical practitioner it would be an indecent assault. But if it was necessary, even though he got sexual satisfaction out of it, that would not make it an indecent assault."

20. As Lord Keith pointed at 33B, a wicked intention is an essential ingredient of the offence of indecent assault, as it is of most other crimes against the person. For the most part that intention can readily be inferred from the facts found proved as to the circumstances of the assault, and unless there are indications that those features of the circumstances which are capable of being considered indecent were not intended. He went on:

"In a narrow range of cases, however, the circumstances may not point unequivocally to the requisite wicked intention. The delivery of chastisement to the buttocks of child is capable of presenting a case of that nature, since chastisement is not necessarily indicative of intention to do something indecent. Where, however, there is direct evidence, as there was in the present case in the shape of the appellant's statement about buttock fetish, that it was the assailant's intention to use the victim for the purpose of gratifying a particular sexual instinct, and that his action did in fact amount to a using of her for that purpose, such evidence can, in my opinion, properly be taken into account so as to resolve any ambiguity about the nature of the act. The contrary view seems to me to fly in the face of all commonsense."

21. The judge in the present case does not appear to have had the case of Court drawn to his attention. There is, in our judgment, no reason why it should have been. Mr Killeen, for the Crown, submits that this was never a secret intent case. The Crown's case was that the appellant behaved in a sexually overt fashion. It never was his case that he carried out an entirely appropriate examination that was properly carried out in all respects but that he obtained sexual satisfaction from it. The Crown called evidence that the appellant's conduct of the examination went way beyond best practice. The judge in his summing up put the issue fairly and squarely before the jury in the passage to which we have referred. Might the appellant have carried out a proper medical consultation and examination or did he do it for his own sexual gratification?
22. Assistance is gained from the exchange between counsel and the judge after receipt of the note from the jury. The judge said:

"I think perhaps what they are getting at really is if there was a breast examination required, how can it be an indecent assault, and the answer to the question is what did the defendant intend if it was simply his intention to carry out-and he did carry out-a simple breast examination, or that may be the position, then it would be appropriate to acquit. If on the other hand he used the opportunity to carry out a breast examination, took that opportunity to indulge in activities for his own sexual gratification and they are sure of that, then they could convict."

Prosecuting counsel agreed with this and defence counsel was asked if he wished to say anything. His response was:

"The only addition, your Honour would be this, that in order to convict they would have to be sure that he did not have an intention to carry out a medical examination, particularly given the underlying assumption and the question."

The judge said:

"He could, could he not, have intended to carry out a medical examination as well as using the opportunity for sexual gratification and that would be an offence."

Defence counsel responded:

"Your honour, forgive my hesitation, but if – and this of course was not canvassed with the doctor – but if it be the case that, for example, he intended to carry out a medical examination, and this is the way I put it to the jury, however inexpertly that was done, if, going through his mind at that time, was the idea and I put this crudely, your honour you will understand – that he was getting pleasure from it that would not be an indecent assault at all. What has to be proved is what he intended to do."

23. It seems to us that what was there concerning defence counsel was the fourth possibility raised by the judge in answer to the jury's question namely obtaining sexual gratification from a medical examination without the intention to obtain such gratification.
24. As the judge put it at 24D, the Crown's case must be that he was carrying out the examination in appropriate circumstances in an inappropriate way and for his own sexual gratification.
25. The defence complaint is about the third possibility referred to by the judge, but nobody was suggesting that there was a legitimate breast examination properly carried out in all respects but that the appellant could nevertheless be guilty of indecent assault.
26. In our judgment it is crucial to keep in mind that the Crown's case was throughout that a breast examination, albeit properly required was conducted in an inappropriate manner and was used as a cloak for a sinister motive. In so far as Court is binding authority for the proposition that a doctor who obtains sexual satisfaction from a necessary medical examination properly conducted is not guilty of indecent assault, that was not the issue in the present case. It is we would add something that would only be likely to occur in the most unusual circumstances. The appellant never suggested he got secret satisfaction from appropriate medical examinations properly conducted on young girls on this or any of the other counts. It is not in our judgment necessary to give the jury a direction about every theoretical possibility that may arise in a case, however remote that possibility may be, where the defence have not raised it. In our judgment the conviction is safe and accordingly we dismissed the appeal.