R v Mohan Babu

On 31 January 2024 in the Crown Court at Portsmouth before His Honour Judge Newton-Price KC, the applicant, then aged 47, was convicted of four counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003. Those were counts 1, 2, 4 and 7. He was acquitted of counts 3, 5 and 6 which were also counts of sexual assault.

On 12 April 2024 before the same court, the applicant, then aged 47, was sentenced as follows: on count 1, two years' imprisonment; on count 2, two years' imprisonment concurrent; on count 4, six months' imprisonment concurrent and on count 7, 18 months' imprisonment consecutive, making a total of three years and six months’.

The applicant seeks to renew his application for leave to appeal against conviction; leave having been refused by the single judge. He also seeks leave to introduce fresh evidence as to his autism from Professor Sir Simon Baron-Cohen and Dr Aroline Rodrigues, who is the applicant's wife.

The facts may be briefly stated as follows. Between April 2018 and July 2021, the applicant worked as a locum at Staunton Surgery in Havant, Hampshire. The complainants, who do not know one another, were patients of the applicant and they each alleged that the applicant sexually assaulted them during medical appointments.

The first complainant, to whom we will refer as C1, had six face-to-face appointments with the applicant between 31 May 2019 and 12 August 2019. In June 2019, C1 was diagnosed with terminal pancreatic cancer and in September 2020 she disclosed to her palliative care nurse, Lisa Stevens, that the applicant had behaved inappropriately towards her. On 22 October 2020, Miss Stevens and Juliet McCormack spoke to C1 and on the following day they filed a safeguarding report of C1's allegations with Hampshire Police.

C1 said that when she attended her first appointment with the applicant, he hugged her and at her second appointment the applicant asked if he could check her breasts. He told her that she had a lovely figure and lovely breasts. At a further appointment C1 said that the applicant instructed her to lie on the couch so that he could listen to her heart. He locked the door. He did not offer her a chaperone. She said that he asked her to lift up her top and her bra, so she was completely exposed and said that he needed to check her breasts for lumps. He spent a long time examining her breasts and pulled on her nipples (count 1).

She said that the applicant then moved his hands underneath the top of her skirt. She told him to stop, sat up and re-adjusted her clothing. She said that the applicant then pulled her closer towards him, and she could feel he had an erect penis. She looked down and saw that his zip was open, and his penis was exposed (count 2).

Referring to a letter that C1 required to cancel a holiday, the applicant said: "I'm helping you, you need to touch it as I am helping." C1 asked the applicant to unlock the door which he did. She then wrote a letter to the surgery asking to change her GP.

C1 told her brother what had happened, and the allegations were reported to the police and the General Medical Council. However, C1 declined to make a formal statement, and she and her family were of the view that pursuing legal proceedings would be detrimental to her failing health. C1 passed away in March 2021.

On 3 February 2020, C2's mother complained about the applicant at the Staunton Surgery and also requested a change of GP. The matter was subsequently reported to the police and on 19 October 2021 C2 gave a prerecorded interview. C2 said that when she was 19 years of age, she had numerous medical appointments with the applicant in relation to her anxiety. She said that the applicant would enquire about her life and pay her compliments, such as telling her how beautiful she was. During her last appointment the applicant listened to her chest from the back. She said that he counted the freckles on her back and touched each one with his finger. She found this strange as she had not asked him to look at her moles. She said that when she left her appointment the applicant held her hands and told her she was beautiful and kissed her cheek (count 4).

On 5 July 2021, C3 complained about the applicant to Staunton Surgery and three days later a report was made to the police by NHS Professional Standards. C3 told the police that on 24 April 2021 she had an appointment with the applicant regarding a neck injury. She said that he asked her to remove her top and bra and said that her skin was dehydrated. He offered her Botox and fillers. C3 asked the applicant about a mole above her eye, and he suggested she make another appointment. She said that he hugged her before she left.

At her next appointment the applicant examined the mole on C3's face. She said that he then asked her to remove her bra. He leaned his head against her head and said she was cute, and he hugged her before she left.

At her third appointment the applicant examined C3's face again. She said that he then asked her to remove her bra, and he smoothed her breast up and down about 20 times, telling her it was lovely and smooth. She said that whilst she had her breasts exposed the applicant said: "Oh, I'm not having a bad day." She said that he then grabbed her breasts and squeezed them three to four times causing pain, whilst asking if she had booked a mammogram (count 7). C3 said that when she tried to leave the applicant hugged her, then seemed to remember that she had come in about her neck, so he did some exercises with her arms with him standing behind her whilst she was wearing a bra and jeans. She said that as she left the appointment the applicant hugged her again and asked if he could get a kiss.

On 10 November 2020, the applicant was interviewed by the police in relation to C1's allegations. He relied on a prepared statement in which he denied the allegations and said that no female member of staff or patient had ever made a complaint against him in his 20 years of practice as a doctor. He said that he did not conduct a chest or breast examination of C1 and denied the allegation of sexual assault. He said that he never locked the door to his surgery, and he denied hugging C1, even if it was to comfort her. Her allegations as set out in Miss McCormack's safeguarding report were put to him and he denied all of them. He could offer no explanation as to why C1 would make such allegations against him.

On 26 January and 9 May 2022, the applicant was interviewed regarding the other allegations that had been made against him. In relation to C2 he denied telling her that she was beautiful, holding her hands and kissing her on the cheek. He said the only way he might have used the word 'beautiful' was to boost her self-esteem. He denied listening to her chest or examining her freckles. There was nothing in the medical note to say he had done so. He said that culturally he did not hug people and the only reason he had hugged C2 was because she instigated it. He agreed that there was no chaperone present.

In relation to C3 he said that a chaperone was not needed as she never removed her clothing. He denied carrying out any breast examination or looking at any moles except the one on her face. He denied asking for or receiving a hug at any time. He denied saying she was "cute" or that he said he was having "a good day" after examining her breasts. He claimed that he was misunderstood because of his "Indianness" and that when C3 said that he asked her for a kiss she may have mis-heard him using the medical term "Actinic Keratosis".

The prosecution's case was that the applicant sexually assaulted the complainants as they had described. He had intentionally touched a number of patients in a sexual way under the cover of conducting a medical examination. The prosecution relied on the similarity between the allegations and the unlikelihood that any of the complainants, who did not know each other, would each make up a similar kind of allegation.

To prove the case the prosecution relied upon, amongst other matters, hearsay evidence regarding C1's allegations from the palliative care nurses and C1's brother and the written record of C1's allegations contained in the safeguarding report following the meeting on 22 October 2020; evidence of the applicant's inappropriate behaviour and intrusive comments towards five other females not named in the indictment; documentary evidence including letters of complaint relating to other allegations; evidence of recent complaints; expert evidence from Dr Jones who said that if the allegations were true the applicant's conduct was not "good medical practice"; the lies that the applicant told in his police interviews; evidence of the Practice Manager who explained the complaints procedure and gave details regarding complaints received in relation to the applicant; and the evidence of Mr Wright who said that he advised the applicant how to conduct a medical examination and to always have a chaperone present.

The defence case was one of denial. The allegations were not true. The applicant, who was of good character, had not sexually assaulted any of his patients. Either it did not happen, or any touching was medically required or accidental. Any questions about sexual matters were appropriate as part of a series of necessary questions about mental health history, and the applicant only hugged patients who were distressed.

The applicant contended that he was disadvantaged in challenging the evidence of C1 because it could not be tested by way of cross-examination. The typed note of C1's allegations was said to be an unreliable and flawed record. There was no transcript or recording of C1's exact words.

The applicant gave evidence and relied on a number of witnesses who gave evidence of his good character.

The issue for the jury was whether the applicant had intentionally touched or made physical contact with the patient concerned, whether the touching or contact was sexual and whether the patient consented to the sexual touching or contact.

During the course of the trial the judge made a number of rulings on evidence. The prosecution applied to adduce evidence of what C1 had told her palliative care nurses and her brother as admissible hearsay under section 116(2)(a) of the Criminal Justice Act 2003 and a record of the allegations from the meeting with C1, that is the safeguarding note, as a business document under section 117 of the 2003 Act. The defence submitted that both pieces of evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984. Referring to the judgment of Hughes LJ in R v Riat [2012] EWCA Crim 1509 the judge found that both pieces of evidence were apparently or potentially reliable and the jury was able to test and assess the reliability of that evidence for the following reasons: C1 had no apparent reason to invent allegations against her GP and had no history of making false claims or of delusional or disordered thinking; the evidence of all the complainants was likely to be subject to a cross-admissibility direction; and the purpose of section 116(2)(a) was to enable the statements of a dead person to be admitted subject to the exclusionary safeguards identified in R v Riat and the appropriate warnings to the jury. The judge was satisfied that the evidence of what C1 had said to the palliative care nurses and to her brother was admissible under section 116 and that the Safeguarding Report was either admissible under section 117 or in the interests of justice under section 114. The judge had further considered whether the document could be used simply as a memory refreshing aid for the witnesses as opposed to being placed before the jury but had concluded that this was an appropriate case for the jury to see the document itself in order to understand the issues better and to assess and test the worth of its content and compare it with other sources.

The judge ruled that it was not unfair to admit the evidence relating to C1 and that it would not be excluded under the terms of section 126 or section 78 of the Police and Criminal Evidence Act. Its probative value outweighed any prejudicial effect, and its admission would not have an adverse effect on the fairness of the trial. Any potential prejudice would be mitigated by giving appropriate legal directions on the limitations of hearsay evidence.

The prosecution also applied to admit the evidence of five women who alleged that the applicant had behaved towards them in ways that were inappropriate, overfamiliar and/or unprofessional but which fell short of sexual assault on the basis that it was relevant to important matters in issue between the prosecution and the defence in that it rebutted the applicant's denials of hugging in his police interviews and assertions that he had not behaved inappropriately towards patients.

Further, when taken together with the evidence of the complainants, it underlined the unlikelihood of coincidence, specifically in relation to inappropriate touching, hugging and intrusive comments.

The prosecution further submitted that the evidence showed the overall pattern of sexually motivated behaviour towards patients and that it rebutted the possibility of concoction.

The defence submitted that even if admissible as relevant reprehensible conduct the evidence should be excluded under section 101 or section 78 of PACE because it would have an adverse effect on the fairness of the trial, and the prejudicial impact of the evidence outweighed its probative value. Whilst it was accepted that the material showed a propensity to hug patients and ask personal questions that offended the patients, it did not show a propensity to commit offences of sexual assault or make it more likely that the applicant committed the offences. In those circumstances the defence submitted that the evidence would raise time consuming and unnecessary satellite issues.

The judge considered the issue of cross-admissibility and accepted the prosecution submission that the evidence of the five women was capable of providing potential support for the allegations in counts 1 to 7 as it rebutted the possibility of concoction by the complainants.

The judge ruled that the evidence of the five women was admissible and refused to exclude it under the 2003 Act or PACE. The defence would be able to cross-examine the five women so the jury would be able to make a fair assessment of their accuracy and reliability, and the judge would give appropriate directions to the jury.

As to the record of the meeting, that had been in the jury bundle throughout the trial but the defence submitted that the jury should not retain the note when they retired as they might attach undue importance to it over other evidence and that the situation was analogous to that of a jury retaining the transcript of an ABE interview.

Referring to R v Popescu [2010] EWCA Crim 1230, the judge said that this was a very different situation to an ABE interview and that he had admitted the evidence of the record of the meeting on the basis that the jury should test and assess the reliability of its content by reference to other documentary sources. That necessary task would be made unnecessarily difficult if the typed note of the meeting was withdrawn from the jury.

The judge said that he would mitigate any potential unfairness by directing the jury that they must not attach undue weight to this document but to assess the evidence as a whole, by setting out the potential limitations of this hearsay evidence in detail and by directing the jury to make an assessment of its reliability by reference to all other evidence. As such the judge ruled that the jury could retain the typed record of the meeting.

The applicant seeks to renews his application for permission in respect of six grounds of appeal which are as follows:

Ms Horlick KC, who appeared for the applicant at trial with Ms Acker, made oral submissions in support of those grounds. She focused her submissions on ground 1 and grounds 3, 4, 5 and 6 which relate to autism and bad character. The ground in relation to the jury retaining the note of the safeguarding report was not pursued.

In refusing leave to appeal the single judge gave the following reasons:

We agree with those conclusions and the single judge's reasoning. Nothing that has been said in the eloquent submissions this morning undermines those conclusions or that reasoning. Accordingly, this renewed application for leave to appellant against conviction is refused, as is the application to adduce fresh evidence.