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The Court of Appeal in R v Melin distinguishes when a deception as to identity can vitiate consent. In doing so, it deflects away from the previous authority of R v Richardson .
Court of Appeal Judgement:  EWCA Crim 557
The Defendant, Ozan Melin, falsely claimed to be an experienced medical professional. He administered Botox injections to two victims, Marcelle King and Carol Kingscott. To Ms Kingscott, Melin represented himself as a surgeon who had worked with the Turkish army. In the case of Mrs King, Melin introduced himself as a nurse during the first treatment and later as a cosmetic surgeon. In both cases it was found that a third party was involved in arranging this procedure.
Ms Kingscott had the treatment in November 2011, and Mrs King underwent this treatment in July 2013. After the first round of injections, Melin offered a free top-up to both the victims if they did not get the desired result. Unfortunately, dissatisfied with the results they came back for the second treatment and experienced severe side effects.
Melin was charged with 2 counts of causing grievous bodily harm contrary to s.20, Offences against the Person Act 1861.
The issue before the Court was whether the consent given by both the victims was based upon the Defendant’s misrepresentation of medical qualifications and whether he did actually misrepresent himself as a medical professional.
The Judge ruled that the defendant’s charges and the matter of consent was only relevant for the second treatments. As the treatments were arranged by a third party, it was found that no false representations from Melin were given with sufficient time before the first treatment for them to have impacted the victim’s consent. Furthermore, only the second treatments caused further harm.
The Judge’s direction to the jury about consent was as follows:
During our life we may consent to treatments such as medical procedures, dental procedures, and now cosmetic procedures. Where there has been a consent the treatment or procedure is lawful. When considering each count the Prosecution, who have the burden of proof, must make you sure that the act of the Defendant was unlawful, that is without consent. So here each complainant has told you they did agree to Mr Melin carrying out the procedure, but only because he said he was medically qualified. The Defence case is that each complainant agreed to the treatment before any representation was made, and in, and in any event the individual complainant did not rely upon anything that was said.
So, when considering each count the Prosecution must make you sure firstly Mr Melin did say to the relevant complainant that he was medically qualified before he injected the substance, and secondly the complainant relied on the statement and only consented, and I repeat, and only consented to the procedure on the basis that Mr Melin was medically qualified.
Melin was convicted on two counts of causing grievous bodily harm and sentenced to 4 years imprisonment. He appealed against this judgement on the grounds that qualifications as a matter of law are separate from identity and cannot amount to deception as to identity.
Court of Appeal Judgement
Melin argued that deception as to qualification does not form a part of one’s identity and therefore cannot vitiate consent. Furthermore, he argued that there was insufficient evidence for the jury to reach any conclusion. Therefore, as a matter of law he argued the issue of consent should not have been passed on to them.
Mrs Justice Simler DBE, who gave the leading judgement for the Court, supported the trial judge’s direction. It was previously held in R v Richardson (1999) that deception as to qualification cannot vitiate consent. In that case, a dentist with a suspended licence performed a treatment without informing the victim that her licence was invalid. The Court of Appeal said this on this case:
I have considered the decision in R v Richardson  2 Cr App R 200 where a restricted view was taken as to the meaning of identity. The footnote in Smith & Hogan [publication] states that the case must be read with the decision of the Court of Appeal in Tabassum  2 Cr App R 328. At page 336 Rose LJ, Vice President, commented that in Richardson [case] the focus had been upon identity and the Prosecution had not relied upon the nature or quality of the act.
Nevertheless, the court went on to conclude that in this case there was no valid consent:
In my judgment there can be situations in which the qualification of a person is an integral part of their identity. A person attending an Accident & Emergency department is not just interested in knowing the name of the surgeon or doctor. The matter of real concern and importance is that the person is a qualified doctor. I also consider that the nature and quality of an act can be dependent upon the qualification of the person carrying out the act.
I find that a positive misrepresentation as to medical qualification is sufficient to vitiate apparent consent where the circumstances involve a consent to a medical or cosmetic operation or procedure where the Complainant has relied upon the representation and would not have consented if they had known the true position.
I have carefully monitored the evidence, the Defence have a number of good jury points. It is a matter for the Jury to consider the evidence in the light of submissions and decide whether an individual Complainant relied upon any misrepresentation of which they are sure. The case must properly be left to the Jury. A properly directed jury would be entitled to convict. As part of my summing up I will highlight the main points made by each side. Accordingly, I refuse the submission.
It was found that the appellant had vitiated the consent as it had only been given based on his medical qualifications. This case was therefore distinguished from Richardson, where consent was not exploited as she was a qualified dentist, albeit without a valid licence. The difference with Richardson, therefore, was that there was no deception to the quality and nature of the act.
Nevertheless, the Court did acknowledge the trial judge’s mistake relating to the treatment of Mrs King. The Court of Appeal found that Melin in fact had not discussed his qualifications with her prior to the treatment. Therefore, the Court of Appeal quashed his conviction related to her, and reduced Melin’s previous sentence from 4 to 2 years’ imprisonment.
The decision in Melin left many questions unanswered, especially given it challenged a number of previous authorities, including Richardson (1999) and Tabassum (2000). It is difficult to say whether Melin is an extension of Richardson, or an entirely different case with its particular facts and authority. This might be a grey area left intentionally for further explorations and developments.
The Court accepted a broader definition of identity compared to the previously accepted authority in Richardson. In Melin, the Court separated a person’s legal identity and their attributes, such as their qualifications, affiliations etc. Interestingly, an attempt was made in Richardson to incorporate attributes and qualifications into Identity. However, Otton LJ refrained from doing so, concluding it would change the everyday meaning of Identity.
The fact that the victims only consented due to his qualifications is sufficient reason to hold Melin responsible. The Court’s judgement was based on a statement from Smith, Hogan and Ormerod’s Criminal Law and held that attributes or qualifications can be a part of a person’s identity considering all the relevant facts. This means that a person’s identity is a combination of both his legal name/credentials and personal attributes.
Another important element highlighted in the judgement was the positive misrepresentation, which was present in Melin but not in Richardson. In the latter, the defendant only failed to inform the patient about the cancelled licence, not deceive about their qualifications. So, a simple failure to inform which is not integral to your identity is not deception but falsely representing oneself is a deception. Is this the actual criteria to form this distinction and charge someone under Melin’s principle? The courts also made it clear that there is no need to refer to the ‘nature and quality’ authority of Tabassum (2000) as an important or only factor to vitiate consent.
This uncertainty can be seen when reviewing the early case of Bolduc v Bird (1967) SCR 677. In this case, the defendant asked the victim’s permission to examine his body in the presence of one of his students. Later it was revealed that he was not a student but his friend. Nevertheless, it was held that the victim’s consent had not been vitiated. Now, considering the post-Melin situation this case is unclear. Is it necessary to have medical qualifications to perform such treatments, as qualification also forms part of a person’s identity? Alternatively, it could only be that a positive misrepresentation vitiates consent.
The Court drew a thin line when deciding whether a person can be held for deception as to identity, where consent is premised on identity. To find a definite answer in such cases all the relevant facts must be considered. There are certain integral aspects of one’s identity which are critical to one’s consent, but the Court failed to explain what those aspects are. If this attribute is qualification, certifications or memberships then there are professions where no such thing is required (eg tattoo artists and barbers). This distinction might therefore only be limited to medical professions.
The courts also stated that in order to charge someone based on Melin there has to be a positive misrepresentation. It therefore remains unclear what would happen if the defendant never had any conversation with any of the victims. If so, would he be free from any of the charges?