R v BM [2018] EWCA Crim 560

KEY POINTS

• Body modification includes tattooing, piercing, and surgical alterations, reflecting personal and cultural expression.

  • Once stigmatised, it now enjoys greater acceptance as a form of individuality and autonomy.

  • Ethical considerations involve informed consent and safety standards, highlighting the balance between personal freedom and societal norms.

• Grievous bodily harm involves severe physical injuries caused intentionally or recklessly, often resulting in significant medical treatment or long-term effects: legally a serious offense, the importance of deterring violent behavior and protecting public safety through stringent penalties.

• The defence of consent allows individuals to legally consent to actions that might otherwise be criminal, such as in sports or medical procedures.

  • It balances personal autonomy with the need to protect individuals from harm, requiring careful consideration of the nature and validity of the consent given.

• Personal autonomy is the right to make independent decisions about one’s life, free from coercion. It shows concepts of freedom and self-determination, balancing individual rights with societal interests in public health, safety, and welfare.

  • Issues like informed consent and privacy are central to autonomy debates.

FACTS

• Brendan McCarthy ("Appellant"), a registered tattooist and body piercer under the Local Government (Miscellaneous Provisions) Act 1982, Part VIII, also provided body modification services without specific registration for these activities.

• The Appellant performed the following body modifications with the customers' consent:

  1. Removal of a customer's left ear on 23 July 2015.

  2. Removal of a customer's nipple on 16 August 2012.

  3. Splitting a customer's tongue to resemble a reptile's on 23 July 2012.

• These modifications were done with the customer's consent, some with signed consent forms, which the Crown(“Respondent”) accepted.

• The Appellant was charged with three counts of wounding with intent to cause grievous bodily harm (contrary to s. 18, Offences Against the Person Act 1861) and three alternative counts of inflicting grievous bodily harm (contrary to s. 20) for these modifications.

  • On 29 September 2017, during a preparatory hearing, the issue of whether customers' consent was a valid defence was raised.

  • On 6 October 2017, His Honour Judge Nawaz ruled that consent could not be a defence based on the House of Lords' decision in R v Brown [1994] 1 AC 212.

  • This ruling was made under s. 31(3)(b) of the Criminal Procedure and Investigations Act 1996, and the Appellant was permitted to appeal to the Court of Appeal under s. 35(1).

• In the Court of Appeal, the Appellant argued:

  1. Public policy considerations should not invalidate the consent given by the customers.

  2. The case could be distinguished from Brown as it involved sadomasochistic activity, while the Appellant's actions protected customers' personal autonomy.

  3. The procedures were akin to body adornment, similar to tattooing and body piercing, which have long been accepted as negating criminal liability through consent.

• As a combination of all submissions, the procedures should be exempt from the criminal law of assault.

JUDGEMENT

• The Court held that the consent of the customers did not provide a defense to the charges of wounding with intent to cause grievous bodily harm or inflicting grievous bodily harm.

  • This ruling aligns with the precedent set in R v Brown [1994] 1 AC 212, where it was determined that consent is not a defense to serious bodily harm if the injury caused is significant and intentional.

• The Court decided that body modification does not fall into a special category exempt from the general rule that consent does not excuse significant harm.

  • The Court found no sufficient reason to place body modification in a unique category outside established legal principles regarding harm.

  • The Court emphasised that public policy does not support the legality of consenting to serious harm, particularly in non-medical contexts.

  • The judgment noted that allowing consent to serve as a defense in such cases could undermine the protection of individuals from severe injury.

  • The Court acknowledged that the modifications performed by the Appellant carried significant health risks and were not conducted with proper medical standards.

  • This was highlighted by expert evidence stating that such procedures were not medically necessary and posed serious risks.

• The Court differentiated body modification from practices like tattooing and piercing, which are considered personal adornments and have long been accepted as legally permissible with consent.

• The judgment noted that body modifications involving the removal of body parts or splitting the tongue go beyond mere adornment and involve significant physical harm.

COMMENTARY

• This case emphasizes the complicated legal and ethical issues regarding body modification, consent, and grievous bodily harm.

• The court found that consent did not justify significant bodily injury, prioritizing public safety over personal autonomy.

• This decision emphasizes balancing individual rights and societal protection in non-medical circumstances such as bodily modification.

RELATED CASES

• R v Brown