BM, Rv

Factual and Procedural Background

The Appellant is a tattooist and body piercer who expanded his services to include "body modification" and operated from premises in The City. He was charged in the Crown Court at The City with three counts of wounding with intent to cause grievous bodily harm under Section 18 of the Offences Against the Person Act 1861, and three alternative counts under Section 20 of the same Act. The charges related to three procedures performed by the Appellant: removal of a customer's ear, removal of a customer's nipple, and division of a customer's tongue to create a forked effect. The prosecution accepted that consent was given by the customers or that it could not be disproven. The legal question was whether consent could serve as a defence to these charges.

The issue was determined at a preparatory hearing on 29 September 2017, with a written ruling by His Honour Judge Nawaz on 6 October 2017, who held that consent could not provide a defence, relying on the House of Lords decision in R v Brown. The Appellant appealed this ruling with leave granted under Section 35(1) of the Criminal Procedure and Investigations Act 1996.

The preparatory hearing did not resolve the practical outcome, as no guilty pleas followed the ruling and the Appellant's counsel indicated that if the ruling was upheld, no defence could be presented. The prosecution considered amending the indictment to include other body modification procedures. The court noted that the hearing was an untidy means to determine the issue and that an interlocutory appeal was not the preferred procedural route.

The Appellant was registered with the local authority for tattooing and piercing under the Local Government (Miscellaneous Provisions) Act 1982, which regulates such activities for hygiene and safety. However, body modification procedures are unregulated and require no particular training or qualification. The Appellant had attended short courses but held no medical qualifications.

Specific incidents included the removal of a customer's ear (with signed consent form), nipple removal, and tongue splitting, all performed without anaesthetic. Medical experts provided evidence on the risks and consequences of these procedures, emphasizing their serious and irreversible nature, the medical risks involved, and the lack of medical justification. The evidence also highlighted the regulatory framework for cosmetic surgery and the protections it affords, which were absent in the Appellant's practices.

Legal Issues Presented

1. Whether the consent of the victims can provide a defence to charges of wounding with intent to cause grievous bodily harm or inflicting grievous bodily harm under the Offences Against the Person Act 1861.
2. Whether body modification procedures causing serious injury should be treated as an exception to the general rule that consent is no defence to such offences.

Arguments of the Parties

Appellant's Arguments

• Consent should provide a defence to the charges as it protects the personal autonomy of the customers.
• The procedures are akin to body adornment such as tattooing and piercing, which are widely accepted and regulated activities where consent negates criminal liability.
• The Appellant accepted being bound by the precedent in R v Brown but argued that it should not apply because it concerned sado-masochistic activity, not body modification.
• The criminal law should not interfere with consensual body modification, and any regulation should be through regulatory offences rather than criminal prosecution.
• The medical risks of the procedures are comparable to those of tattooing and piercing, which are lawful.

Respondent's Arguments

• The procedures performed are medical in nature and amount to cosmetic surgery, carrying serious irreversible risks without medical justification.
• It is not in the public interest to decriminalise such serious injuries even if consented to.
• The injuries caused amount to grievous bodily harm, which is more serious than actual bodily harm or wounding.
• Recognising a new special category exempting body modification from criminal liability would be a significant and unwarranted extension of the law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Brown [1994] 1 AC 212	Consent is no defence to charges of actual bodily harm or wounding causing grievous bodily harm when the injuries are inflicted for no good reason, even if consensual.	Served as the primary authority for holding that consent does not provide a defence to the Appellant's charges involving serious bodily harm caused by body modification.
R v Miller [1954] 2 QB 282	Definition of actual bodily harm as injury calculated to interfere with health and comfort, more than transient or trifling.	Used to clarify the nature of bodily harm relevant to the charges.
R v Smith (1837) 8 C & P 173	Definition of wounding as breaking the whole skin including inner skin.	Clarified the legal meaning of wounding for the offences charged.
DPP v Smith [1961] AC 290	Definition of grievous bodily harm as really serious bodily harm.	Used to establish the seriousness of harm caused by the Appellant's procedures.
R v Cunningham [1982] AC 566	Clarification of grievous bodily harm and intent.	Supported the interpretation of grievous bodily harm in the context of the offences.
R v Coney (1882) 8 QBD 534	Public interest limits consent as a defence in cases involving actual bodily harm inflicted during fights.	Referenced as part of the legal background to limits on consent as a defence.
R v Donovan [1934] 2 KB 498	Consent is not a defence to assault causing bodily harm for sexual gratification.	Established limits to consent as a defence in certain contexts.
Attorney General's Reference (No. 6 of 1980) [1981] QB 715	Consent is not a defence where public interest requires, including fights causing actual bodily harm.	Clarified the public interest exception to consent as a defence.
R v Wilson [1996] 2 Cr App R 241	Consensual activity between spouses causing actual bodily harm is not a matter for criminal prosecution.	Distinguished to show limits of criminal law intervention in consensual bodily harm.
Pallante v Stadiums Pty [1976] V.R. 331	Consideration of the immunity of professional boxing from criminal liability.	Discussed in relation to the difficulty of articulating coherent principles for exceptions to the general rule on consent.

Court's Reasoning and Analysis

The court acknowledged the complexity and lack of a coherent principle underlying the exceptions to the general rule that consent is no defence to charges involving bodily harm. It recognized that certain activities, such as properly organized boxing, sports, tattooing, piercing, and ritual circumcision, are long-standing exceptions embedded in law and culture, often justified by social benefit or public interest considerations.

However, the court found no proper analogy between body modification procedures causing removal or mutilation of body parts and the accepted exceptions like tattooing or piercing. The Appellant's procedures were serious medical interventions performed without medical qualifications, without the protections and safeguards inherent in regulated medical treatment, and carried significant long-term risks and irreversible harm.

The court emphasized that the personal autonomy of customers does not extend to authorizing others to commit what would otherwise be criminal offences. It noted that even if the individuals could harm themselves without criminal liability, involving another person changes the legal context.

The court rejected the Appellant's argument that body modification should be a new special exception to the general rule, stating that such a policy-laden decision is for Parliament, not the courts. It reaffirmed that the consent of a victim is no defence to causing grievous bodily harm when the injury is serious and irreversible, particularly when performed by unqualified persons outside the medical regulatory framework.

Holding and Implications

DISMISSED

The court upheld the ruling that consent cannot provide a defence to the charges of wounding with intent to cause grievous bodily harm or inflicting grievous bodily harm in the context of the Appellant's body modification procedures. The decision means that such serious and irreversible body modification carried out without medical qualifications and safeguards remains criminally liable despite consent. The court did not establish any new exceptions to the general rule and emphasized that any change in the law would require Parliamentary intervention. The direct effect is that the Appellant’s appeal was dismissed and the charges remain prosecutable. No new legal precedent altering the scope of consent as a defence was created.