McCarthy v R.

Where consent does not provide a defence to the intentional infliction of serious injury, genuine consent remains relevant to sentence. It may reduce the harm actually suffered and, more directly, the offender’s culpability. Its weight depends on the victim’s vulnerability and on whether the consent was real and informed.

Consent does not, however, justify a sentence detached from the ordinary sentencing of serious violence. The public-protection rationale which prevents consent being a defence remains material. Deterrent custody may therefore be required for unqualified, commercially performed and irreversible body-modification surgery.

The appellant pleaded guilty at Wolverhampton Crown Court to three offences of causing grievous bodily harm with intent. He had performed, for payment and without anaesthetic, procedures involving the removal of an ear and a nipple and the splitting of a tongue. The prosecution accepted that the customers had consented, or could not disprove consent.

Following an earlier interlocutory decision that consent afforded no defence, the judge sentenced the appellant to concurrent terms of 40 months’ imprisonment and ordered forfeiture of surgical items and medication. The appellant appealed against sentence. He challenged the assessment of harm, the weight given to consent and deterrence, and the refusal to suspend the sentence.

1. Appeal dismissed. The concurrent sentence of 40 months’ imprisonment was neither wrong in principle nor manifestly excessive. An immediate custodial sentence was required; no question of suspension arose.
2. Consent was relevant to sentence although it was no defence. A freely received serious injury may have fewer adverse consequences than the same injury in an ordinary assault, and may even have a positive effect on the recipient’s wellbeing. Genuine consent more directly reduces culpability, since an attack causing serious injury is more culpable than the consensual infliction of the same injury.
3. The court stressed that the quality of asserted consent matters. In a future case, the prosecution should investigate the victim’s vulnerability and the real nature of the consent. Vulnerability, mental-health problems, or consent which proves not to be genuine would aggravate rather than mitigate the offending.
4. The policy reasons which preclude consent as a defence remained significant at sentence. They include protection of vulnerable persons, the risks of serious injury, disease and death, and the absence of professional and regulatory safeguards. Genuine consent could reduce sentence, but could not produce penalties wholly divorced from those imposed for ordinary serious assaults.
5. The judge was entitled to treat the irreversible removal of the ear and splitting of the tongue as greater harm. The removal of the nipple did not meet the threshold of being serious in the context of the offence, but that error made no difference to the outcome. The knife and premeditation were inherent in this unusual consensual surgical offending and did not require a finding of higher culpability.
6. Deterrence remained appropriate despite the appellant’s cessation of the procedures and the earlier appellate ruling’s wider deterrent effect. The judge’s five-year notional starting point, and the full one-third reduction for late guilty pleas, were not manifestly excessive.

• Court of Appeal (Criminal Division) — dismissed the appeal against sentence.
• Court of Appeal (Criminal Division) — an earlier interlocutory appeal, decided at [2018] EWCA Crim 560, upheld the ruling that the customers’ consent afforded no defence.
• Wolverhampton Crown Court — on 21 March 2019, HHJ Nawaz imposed concurrent sentences of 40 months’ imprisonment for three offences and ordered forfeiture of the seized surgical items and medications.