BM, R v

Consent is not a defence to violence causing actual bodily harm or more serious injury unless the conduct falls within an established special exception supported by a good reason. New exceptions should not ordinarily be created case by case. They raise policy issues better addressed by Parliament, unless the proposed activity closely resembles an existing exception.

Irreversible body modification involving removal of body parts or tongue splitting is not analogous to tattooing or piercing. It is serious surgery performed without medical justification and falls outside the recognised exceptions. A customer’s personal autonomy cannot justify involving another person in conduct which would otherwise be criminal.

The appellant, a tattooist and body piercer, was charged with three counts of wounding with intent under section 18 of the Offences Against the Person Act 1861, with alternative section 20 counts. The charges arose from consensual removal of an ear, removal of a nipple and splitting of a tongue.

At a preparatory hearing, the Crown Court at Wolverhampton ruled that consent could not provide a defence. The appellant appealed, accepting that he was bound by R v Brown [1994] 1 AC 212 but submitting that body modification should be recognised as an exception to its general rule.

1. Appeal dismissed. The Crown Court was correct to rule that consent afforded no defence to the charges. The governing rule in R v Brown [1994] 1 AC 212 is that consent does not excuse the infliction of actual bodily harm or more serious injury without a good reason.

2. The recognised exceptions to that rule, including properly conducted sport, reasonable surgical interference, tattooing and piercing, do not rest on a single comprehensive principle. They reflect balances drawn in particular social settings. Some may confer a social benefit; others are so accepted that criminalisation of consensual conduct would be unreasonable.

3. The court held that a new exception should not normally be created in an individual criminal case. Such a step requires policy choices on which views may differ. Parliament is the suitable forum unless the proposed exception closely resembles an existing one.

4. The procedures in issue were not analogous to tattooing, piercing or body adornment. They were irreversible medical procedures, performed for reward without medical reason, which removed parts of the body or mutilated the tongue. The professional safeguards governing surgical practice protected against physical complications and the risks presented by vulnerable persons; they were absent here. The quality or cleanliness of the appellant’s work could not determine whether consent was a defence.

5. Personal autonomy did not alter that conclusion. A person may harm himself or herself without committing this offence, but cannot thereby authorise another to commit what would otherwise be a crime. The procedures caused really serious harm. Thus, even on approaches to R v Brown advanced by the dissenting judges, consent could not excuse grievous bodily harm.

• Court of Appeal (Criminal Division) — dismissed the appellant’s interlocutory appeal from the preparatory ruling: [2018] EWCA Crim 560.
• Crown Court at Wolverhampton — at a preparatory hearing, ruled that consent could provide no defence to the indictment.