R v BM [2018] EWCA Crim 560

Key point

The defence of consent does not apply to actual bodily harm in the form of body modification.

Facts

  • D, a tattooist, carried out body modifications including the removal of a customer’s ear, the removal of a customer’s nipple and the division of a customer’s tongue to produce an effect similar to reptilian tongues
  • D was convicted with wounding with intent to do grievous bodily harm contrary to s18 OAPA 1861
  • The judge held that consent was no defence, D appealed on the ground that the procedures were consensual

Held (Court of Appeal)

Appeal dismissed – consent offered no defence to s18 OAPA 1861.

Lord Burnett CJ

General rule

R v Brown (Anthony) [1994] 1 AC 212 established the general rule that consent provided no defence if violence caused actual bodily harm or more serious injury.

Nature of exceptions

Exceptions represent a balance struck by the judges to reflect a series of different interests.

Whilst the exceptions are incapable of being accommodated within any universally stated test, there are two features which underpin almost all of them:

  1. they may produce discernible social benefit; and
  2. it would be regarded as unreasonable for common law to criminalise i.e., long accepted practices such as tattooing, piercing or religious practices such as circumcision.

New exceptions should be developed by analogy to existing exceptions, the recognition of an entirely new exception is too policy laden for the criminal trial process.

Current case

In this case there is no proper analogy between body modification and tattooing, body piercing or other body adornment, they amounted to medical procedures performed for no medical reason by someone not qualified to perform them.

Policy reasons that were cited include:

  • Modifications can lead to profound long-term consequences and many who seek body modification are vulnerable to mental illness.
  • The personal autonomy of one individual does not extend to involving another in what would otherwise be a crime.