R v Tabassum (Naveed)
Court of Appeal
Citations:  2 Cr App R 328;  Lloyd’s Rep Med 404.
The appellant went door-to-door telling women that he was doing a breast cancer survey to help him develop data software for doctors. He persuaded three women to let him show them how to examine their own breasts for signs of breast cancer. This involved allowing the appellant to touch their breasts. The women later learned that the appellant had no medical qualifications or training. The women told police that they would not have agreed to the touching if they had known that the appellant was unqualified.
The appellant was tried for sexual assault. The appellant’s motive was unclear. He had some experience in the breast cancer field, and continued to claim that he was collecting information for a database (but had not started creating it). At trial, he made a submission of no case to answer, arguing that the women consented to the touching. The judge rejected this, and the appellant was convicted. He appealed.
- Did the women consent to having their breasts touched?
The Court of Appeal upheld the conviction. The women consented only to medical touching, not sexual touching. The appellant’s lack of medical qualifications therefore changed the ‘nature and quality’ of his actions, vitiating the women’s consent.
This Case is Authority For…
The presumption of non-consent where the complainant is deceived as to the ‘nature or quality’ of the act has been superseded by s.76(2)(a) of the Sexual Offences Act 2003. This states that the complainant is conclusively presumed not to consent, and the defendant presumed to lack a reasonable belief in consent, is the defendant deceives her as to the ‘nature and purpose’ of the relevant act.
The Court of Appeal in R v Jheeta  EWCA Crim 1699 indicated that the ‘purpose’ of an act is different from its ‘quality’. This hints that Tabassum might not be decided the same way under the modern law.