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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Osborne

Lord Nimmo Smith

[2006] HCJAC 91

Appeal No: XC201/06

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

in

REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

IN APPEAL AGAINST SENTENCE

by

DAVID BAILLIE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Carroll, solicitor advocate; McClure Collins, Edinburgh

Alt: K. Stewart, A.D.; Crown Agent

8 December 2006

[1] On 20 October 2003 the appellant pled guilty in the High Court to 17 charges on the indictment against him. At all material times he practised medicine as a general medical practitioner. The complainers were all young women who at various times between January 1986 and January 2000 had, as patients, attended the surgery where he practised. Each of the charges was of assault upon the patient (in some cases on several occasions) involving acts of indecency. The terms of the charges to which the appellant pled guilty are set out on pages 2 to 5 of the Scottish Criminal Cases Review Commission's Statement of Reasons supporting the reference to this court. The sentencing judge sentenced the appellant, who was then 50 years of age, to 9 years' imprisonment, indicating that but for his plea of guilty the sentence would have been one of 12 years.

[2] The appellant sought to appeal against that sentence, but leave to appeal was refused by a single judge and that refusal of leave was confirmed by two judges of the court.

[3] The appellant thereafter made an application to the Scottish Criminal Cases Review Commission for review of his sentence. The Commission took the view that it was at least arguable that the 12 years starting point did not "fall within the general pattern of disposals for cases involving breach of trust and sexual offences" and that accordingly there might have been a miscarriage of justice. On the other hand, it did not consider that there might have been a miscarriage of justice due to any failure to afford the applicant a greater discount in sentence by reason of his plea of guilty.

[4] In her detailed and careful report in the original appellate proceedings the sentencing judge described the circumstances of the various charges as follows:

"Charge 1. The complainer in respect of this charge was about 28 years old at the time of the offence which occurred in about 1994 or 1995. She attended at the appellant's surgery suffering from thrush. He told her that women in Middle Eastern countries regularly shaved their pubic hair as this was cleaner and reduced the possibility of infection. He then told her to lie on the couch and remove her lower clothing. Without saying anything further, the appellant then began to shave the complainer's pubic area with a razor. He then told her to get dressed. There was no clinical reason whatsoever for this procedure to be carried out, and no record was made in the complainer's medical records of shaving having taken place.

Charge 2. The complainer in respect of this charge was aged 20 when she attended at the surgery on an occasion between September 1997 and June 1998 complaining of thrush. She was told to remove her clothing and lie on the examination table. The appellant examined her private parts and said that it looked as if she had a skin infection. He said that he would prescribe cream, but that would be more effective if the pubic hair was shaved. He then said he would do that for her and, using a Bic razor, proceeded to do so. During the process the appellant touched the complainer's clitoris on more than one occasion. He then told her to get dressed. No record appeared in her medical records of this procedure having taken place.

Charge 3. The complainer in respect of this charge consulted the appellant on various occasions between January 1996 and January 2000 when she was between the ages of 17 and 21. She was suffering from recurring thrush and on each occasion the appellant carried out an internal examination of her. She was told to remove her lower clothing and lie on the examination table with her legs apart. He then inserted one or two fingers of his right hand into her vagina, often resting his left hand on her stomach as he did so. The complainer estimated that during the period in question the appellant carried out about 6 such examinations. During her last appointment with him, the appellant shaved off her pubic hair, telling her that the cream he was prescribing would be more effective if he did so. Towards the end of 1997 the complainer attended the surgery complaining of pain and discomfort during sexual intercourse. The appellant examined her internally and diagnosed vaginismus. She attended again about one week later as her condition had not improved. The appellant again examined her internally with one or two fingers moving these around upwards and downwards and in a circular motion while asking her how this felt. Thereafter, he saw her again on a number of occasions on most of which he conducted an internal examination. On some occasions he asked her to adopt a different position such as kneeling on the table or lying on her back with her knees up. During some consultations, the appellant asked her inappropriate questions about her sex life. Only three of these internal examinations are recorded in the complainer's medical records, and there is no reference there to vaginismus.

Charge 4. The complainer in this charge consulted the appellant on two occasions between January 1986 and June 1995. Her first appointment was for a postnatal examination. The appellant carried out an internal examination by inserting his fingers and moving them around. The complainer found this painful. The appellant removed his fingers and then re-inserted them several times. The complainer was sore and bleeding for a few days thereafter. On the second occasion the complainer attended the surgery suffering from emotional problems. She had a consultation with the appellant and was told to lie on the examination table and remove her clothing. The complainer thought this was related to recurring episodes of thrush from which she suffered. The appellant inserted his fingers into her vagina. He then left the room and returned and again inserted his fingers into her vagina touching her around the clitoris. During this examination the complainer was aware that the appellant was breathing heavily and appeared to be excited by what he was doing.

Charge 5. The complainer in this charge attended the surgery and saw the appellant on three occasions between March 1994 and January 1999 when she was between the ages of 24 and 30. She indicated to the appellant that she wished to have a sterilisation procedure reversed. She was advised that he would require to examine her internally to check that everything was in order. He then inserted several fingers into her vagina. He removed his fingers and then re-inserted them on a number of occasions. The complainer subsequently had a reversal procedure and became pregnant thereafter. The appellant again said that he would require to carry out an internal examination which proceeded in exactly the manner as on the previous occasion. In addition, the appellant made a number of remarks about the complainer's sex life. Early in 1999, the complainer again became pregnant and made an appointment with the appellant for confirmation of this. Once again he carried out an unnecessary internal examination.

Charge 6. The complainer in this charge was 18 when she attended the Student Health Centre early in 2000 for an appointment with the appellant. She had previously consulted him about problems experienced during sexual intercourse. On this occasion he asked her how she was. She indicated that she was no longer experiencing pain, but the appellant asked her to lie on the examination table and remove her lower clothing. He then carried out an internal examination which the complainer felt lasted for a long time. The appellant was unaccompanied by any chaperone and gave no explanation to the complainer of why it was necessary for him to carry out such an examination. The complainer's medical records contain no note of any such examination.

Charge 9. The complainer in respect of this charge consulted the appellant on various occasions between January 1993 and December 1996 when she was between the ages of 21 and 25. Prior to her first appointment with the appellant she had undergone an operation for pre-cancerous cells and she required regular check-ups. At her first appointment with him in connection with another matter, she was advised that he would require to take a smear test, and that was done. While it was accepted that that test was fully justified, the appellant then indicated to the complainer that he would "just have a wee feel about" as he was going to check that everything was all right. He then conducted an internal examination using two fingers and resting his other hand on the complainer's upper thigh. She felt uncomfortable and 6 months later was again advised that another internal examination was required. The appellant told her that he would be able to see her better if he shaved her. He then shaved off all her pubic hair using a battery operated razor. Thereafter he carried out a further internal examination. When he moved away from the examination table the complainer could see that he appeared to have an erection. Neither the internal examination nor the shaving are noted in the complainer's medical records.

Charge 12. The 26 year old complainer in respect of this charge attended in September 1989 at the appellant's practice for confirmation of pregnancy. He advised her he would require to carry out an internal examination. She was told to take off her lower clothing and lie on the couch. The appellant then inserted his fingers inside her vagina with one hand on her stomach. The complainer described feeling as if he was "having a rummage about". She had no recollection of him wearing gloves, and no one else was present during the examination.

Charge 17. The 18 year old complainer had an appointment for a smear test on 16 June 1997. No chaperone was present while this procedure was carried out, although a notice in the surgery indicated that that would be the case. Although the smear test was carried out in an appropriate manner, the appellant then inserted two fingers into the complainer's vagina. She felt tense and uncomfortable and was aware that the appellant kept looking at her as if to gauge her reaction.

Charge 19. The 19 year old complainer in respect of this charge attended at the surgery on 8 June 1989 for confirmation of pregnancy. The appellant indicated that he would require to conduct an internal examination and during that he inserted two fingers into her vagina. After the examination was concluded, the appellant indicated that she was three weeks pregnant and also that he had accidentally caused her to bleed, but that she had nothing to worry about. He then made a number of inappropriate comments about her sex life. The complainer noticed that there was blood on the couch. Although her pregnancy did not proceed normally, I was told that there was no suggestion that the internal examination had resulted in anything other than an injury to the complainer herself.

Charge 20. On 4 July 1986 the 27 year old complainer in respect of this charge attended for unrelated matters during which the appellant asked her what contraceptive she used. She was surprised by this question, and told him that she had an IUD coil fitted which was not due to be changed for another three years. The appellant told her he would require to examine her. She was instructed to take her clothing off and lie on the couch. He then carried out an internal examination and indicated that her coil would have to be changed. The complainer, though surprised, assumed that the appellant knew what he was doing. He then removed the coil and inserted another one and, as he did so, she felt pain from the new coil. The appellant then insisted that she insert her fingers in order to feel the threads of the coil. She attempted to do this while he watched but felt embarrassed. She eventually pretended to find them in order to bring the examination to an end. The appellant then again inserted his own fingers into the complainer's vagina during which she felt a sharp pain. As she dressed, the complainer noticed she was bleeding. As a result of continued bleeding, she attended at Stobhill Hospital next day, where the coil was removed and she was given antibiotics.

Charge 23. This charge related to three occasions between April 1991 and August 1995 when the complainer, who was aged between 20 and 24, consulted the appellant at his surgery. On one occasion the appellant examined her vagina and told her that it was badly inflamed and the pubic hair was irritating it. He then produced a gent's razor and shaving foam and completely shaved the complainer's pubic area, standing at the bottom of the couch as he did so. The complainer had been suffering thrush and continued to attend at the appellant's surgery. On one occasion he asked her if he could take photographs of her vagina for training of medical students. She agreed to this request and it was arranged that she would attend on the Saturday morning. Her mother accompanied her, but waited outside. She was told to remove her clothing, lie on the couch, and put her feet into stirrups. The appellant then took several photographs of her vagina. On another occasion the complainer attended believing she was pregnant. The appellant carried out an internal examination purportedly to confirm that fact.

Charge 24. The complainer in this charge was aged 16 when she attended the appellant's surgery on an occasion early in 1992 because she felt she may be pregnant. During the consultation, the appellant asked her if he could take photographs of her vagina for training purposes. She was told to remove her clothing and lie on the couch with her feet together and her legs apart. The appellant then took several photographs.

Charge 25. The complainer in this charge attended the appellant's practice on several occasions between 1992 and 1995, when she was in her early 20s, because of stomach pains. During consultations with him the appellant began asking questions about her sex life, and then told her he would have to examine her. She was required to remove her lower clothing and lie on the examining couch. The appellant then proceeded to lift up her top and felt her body saying he was looking for lumps. He then told her to remove her top and stood behind her and touched her breasts. When the complainer returned one week later for the taking of a smear test, the appellant asked her a number of inappropriate questions about her sex life and also patted the inside of her thigh. In about July 1995 she attended with a lump on the inside of her groin which was diagnosed as an abscess or herpes. A few days later, she attended the emergency doctor, who happened to be the appellant. She was told to remove her clothing and lie on the couch. The appellant then examined her vagina and told her that the abscess was due to ingrown hair and that shaving was necessary. He produced a gent's razor and shaving foam, sat in a chair between the complainer's legs, and shaved her pubic hair. While doing so, he made a number of inappropriate remarks to her, and began speaking with a lisp as if he was slavering at the mouth. When he had finished shaving her, he touched her clitoris.

Charge 32. The complainer in this charge was aged 21 and was a student at Glasgow University. She attended the appellant's surgery early in 2000 suffering from cystitis. She was told to remove her lower clothing and lie on the couch. The appellant examined her internally by inserting his fingers into her vagina and rubbing the heel of his hand against her clitoris. Throughout the examination, which lasted about 5 minutes, the appellant was not wearing protective gloves.

Charge 37. The complainer in respect of this charge was a 19 year old student. On 14 December 1998 she attend the appellant's surgery regarding emergency contraception. The appellant told her to remove her clothing and lie on the couch, and then inserted his fingers into her vagina. He did not explain the purpose of his examination. The complainer felt that it was not appropriate and later made a complaint to another doctor in the practice. As a result of this complaint, the partners in the practice held a meeting and drew up a code of practice on 1 February 1999 concerning the use of chaperones during the examination of female patients.

Charge 38. The complainer in this charge was an 18 year old student who consulted the appellant in about March 1998 for advice about contraception. She was asked to remove her clothing and lie on the couch where the appellant conducted an internal examination. After he had completed this he rubbed his fingers around the entrance to her vagina for about 45 seconds. The complainer felt very uncomfortable and noticed a change in the appellant's manner in that he was breathing more heavily and went quiet."

[5] In about October 2000, complaints having been received about the appellant, the other doctors in the practice, who had also themselves had reservations about him, contacted the General Medical Council. Ultimately a disciplinary hearing took place on 2 September 2002, as a result of which the appellant was struck off the General Medical Council Register.

[6] The appellant first appeared on petition on 17 October 2002. At that stage there were 5 charges preferred against him. As a result of media reports of the General Medical Council proceedings other complainers came forward. By about July 2003 the Crown was able to advise the appellant's legal representative that it intended to pursue charges involving approximately 33 complainers. An indication was given on behalf of the appellant that it was likely that a plea of guilty would be offered. By some time after 11 August 2003 the appellant's legal representative had been provided with information, including police statements from most of the complainers, extracts from their medical records and copies of other productions. The indictment, containing 42 charges, was served on 17 or 18 September 2003.

[7] The plea tendered and accepted on 20 October 2003 involved a plea of not guilty to all but 17 of the charges and deletions in various of the charges where the plea was one of guilty. There appears to have been negotiation of these pleas for some time prior to 20 October, which was a trial diet. So far as appears, no detailed information as to the timescale of these negotiations was placed before the sentencing judge; nor was such detail placed before us. It appears, however, that none of the complainers was cited to give evidence. Some, but not all of them, were precognosced by the procurator fiscal.

[8] All the internal examinations which took place were inappropriate and unnecessary, though many of the complainers were unaware at the time that anything untoward had occurred. The effect on the various complainers of what had happened to them varied greatly. Many described feelings of embarrassment and violation and some had attended for counselling.

[9] In terms of various reports obtained by her the sentencing judge was advised that the appellant's offending behaviour was "situation-specific" and that he was in the low risk category of offending in the future. He was not considered as presenting a risk to women in general.

[10] The sentencing judge took into account various factors urged in mitigation of penalty. The appellant acknowledged that the charges contained a very serious breach of trust over a long period of time. He had worked hard as a doctor, had been a respected colleague and was well liked by his patients. His marriage had broken down as a result of the offences coming to light. He had lost not only his wife but also his home, his profession and his livelihood. He faced the prospect of a long prison sentence and separation from his two children, aged 11 and 9. He was well aware of the hurt, humiliation and distress he had caused and regarded himself as having failed abysmally.

[11] These and other factors were urged upon us. The latter included that the appellant was a first offender. Since being sentenced he had commenced a course in joinery and later an Open University course in business studies and in accountancy. At the hearing we were advised that he intended on his release to seek work as a bricklayer. It was contended that it was not appropriate to impose a deterrent sentence on the appellant, a first offender.

[12] We were referred in the course of the hearing to a number of decisions, two of this court and several from the Court of Criminal Appeal of England and Wales. We have found these of some, though limited, assistance.

[13] In this jurisdiction there are no reported decisions of a closely analogous character. H.M. Advocate v Brough 1996 S.C.C.R. 377 was a Crown appeal against disposal by way of a probation order in respect of a teacher who had pled guilty in 1995 to lewd practices towards two adolescent girls in about 1976, all contrary to section 4 of the Criminal Law (Amendment)(Scotland) Act 1922. The maximum penalty was 2 years' imprisonment. The court allowed the appeal and imposed concurrent sentences of 12 months in each case. In Coffey v Houston 1992 S.C.C.R. 265 the appellant, who was a male nurse, was convicted in summary proceedings of two offences against 11 year old girls. One involved her being induced to lift her nightdress, her breasts being handled, her pants removed and the handling of her private parts; the other involved the appellant placing his hand under the girl's nightdress and handling her breasts. Concurrent sentences of 2 months imprisonment were sustained on appeal.

[14] The English cases to which we were referred were:- R v Healy [2003] EWCA Crim. 551, [2003] 2 Cr. App. R. (S.) 87; R v. Onubogu [2000] 2 Cr. App. R. (S.) 286; R. v Husain (Syed) [2004] EWCA Crim. 2722, [2005] 1 Cr. App. R. (S.) 112; Attorney General's Reference (No.112 of 2005) [2006] EWCA Crim. 285; and Attorney General's Reference (No. 68 of 2003) [2004] EWCA Crim. 620.

[15] The reports of these cases disclose a range of circumstances, most of them involving indecent conduct by a medical practitioner. From these and from our own experience and judgement certain general principles can be identified. These are as follows.

[16] Patients put their trust in health professionals. They are prepared to subject themselves to intimate examination, in some cases of penetration of their private parts, for the purposes of their medical care. A health professional who abuses that trust by indecent assaults perpetrated for his own sexual gratification must expect to be severely dealt with by the courts.

[17] The degree of abuse, including the nature and extent of any inappropriate penetration, will be relevant to sentence, as will the number of victims, the number of occasions on which the abuse occurred and the length of the period over which it occurred.

[18] The degree of harm, including psychological harm and the risk of infection, associated with the abuse is relevant. The violation of the physical and psychological integrity of the patient is an important consideration.

[19] In most, if not all, such cases the offender will be a person otherwise of good character. While that consideration cannot be ignored, it cannot justify a substantial reduction of what otherwise would be the appropriate sentence. It has been observed:

" ... where an offender has taken advantage of the standing that he enjoys in the community to breach the trust placed in him by others ..., it is difficult to see how the positive attributes that were the very circumstance of his offending can benefit him very much when it comes to sentence. Those who enjoy much standing in the community, be they teachers, priests, doctors or anyone else, have to recognise that the benefits that they enjoy from their position are necessarily balanced by the responsibilities that arise as a result. If they offend in breach of trust and of those responsibilities, they can hardly expect to enjoy the further benefit of a substantial reduction in their sentence" (Attorney General's Reference (No. 37 and Others) [2004] 1 Cr. App. R. (S.) 84 per Kay L.J., quoted in Attorney General's Reference (No. 79 of 2004) by Rose L.J.

[20] The court must, however, set offences of this kind at an appropriate point in the spectrum of serious offences. In particular, where the offences do not include penile penetration or physical violence, the range of the penalty must reflect that consideration.

[21] In some cases deterrence may be an important factor. In her report the sentencing judge stated:

"Having regard to the lengthy period of the libel, I consider that a severe sentence was indicated, not only as punishment for the appellant but also as a deterrent to any other health professional who might find himself similarly tempted, and as a reflection of society's strong condemnation of conduct of this kind."

We agree that a severe sentence was indicated as punishment for the appellant and as a reflection of society's strong condemnation of conduct of this kind. We do not agree that it was appropriate, in setting the degree of severity of the sentence, to include an element as a deterrent to any other health professional who might find himself similarly tempted. There is, fortunately, no indication that conduct of this kind is prevalent in this jurisdiction. We see no justification for visiting upon the appellant punishment in respect of the hypothetical risk that others may be tempted to act in a similar way.

[22] Applying these general considerations, as well as the particular circumstances of the present offences and of the offender, we have come to the view that the starting point of 12 years selected by the sentencing judge was excessive. We are of opinion that an appropriate starting point would have been a sentence of 9 years.

[23] We are not, on the other hand, persuaded that the sentencing judge erred in the discount which she allowed for the guilty plea. It appears that about the middle of August 2003 the appellant had detailed notice of what was alleged against him. Section 76 procedure was not used. The appellant pled guilty at the trial diet. While no complainers were cited to give evidence and some were not precognosced, there is nothing to indicate that the appellant responded as promptly as he might have done to the allegations made against him. We shall allow to the appellant the same percentage discount as the sentencing judge allowed.

[24] The appeal is accordingly allowed to the extent of quashing the sentence of 9 years' imprisonment and substituting for it a sentence of 6 years and 9 months' imprisonment.