HomepageCommercial LawPrivate LawPublic Law & Human RightsCriminal LawEU & International LawCareers

Accessibility

Have Irlen Syndrome, or need different contrast? Click the button below for options.

Background Colours

Subscribe

Enter you email address below to subscribe to free customisable article notifications.

Alternatively, click the button below for our various RSS Feeds (available journal wide, or per section).

Consenting to Serious Violence in R v BM: An Update to R v Brown?

Article Cover Image

About The Author

Mark O'Neill (Regular Writer)

Mark is a graduate of the Open University, where he recently graduated with a First Class Honours in his BSc (Hons) Open Degree. Mark is currently working full time for the Financial Ombudsman Service as an Adjudicator, while also undertaking an LLM in Sports Law in Practice at De Montford University with the aim of working as a solicitor specialising in sports law.

[Read More]

Without 'consent' in any human interactions, there's an ethical violation.

Henry Johnson Jr

In late March 2018, a case packed with peculiarities threw doubt on the status of what has long been perceived a relatively settled area of law. In R v BM [2018], the Court of Appeal heard a case concerning body modification procedures undertaken by a body modification artist (BM) on his clients. Despite all customers having consented to the operations, BM had been charged with three counts of wounding with intent to cause grievous bodily harm (GBH) under Section 18 of the Offences Against the Person Act 1861 (OAPA 1861).

The decision in R v BM [2018] has drawn attention from commentators, after it appears to have assumed the role of a quasi-successor to the memorable case of R v Brown [1994], which considered injuries inflicted during consensual but extreme sadomasochistic sex. In that oft-studied case, the House of Lords held that consent could never provide a defence to offences involving serious violence or harm.

This decision was controversial: it triggered long-standing debate surrounding the sometimes delicate balance between respecting the freedom of choice of the individual and discouraging activities that are dangerous and have relatively little social utility. As this article examines, it seems that the Court of Appeal’s decision in R v BM [2018] looks set to provoke this debate once more.

The Legal Context

The Offences Against the Person Act 1861

The statutory basis for the vast majority of offences involving the commission of direct physical harm against a person is the OAPA 1861. Amongst the most commonly used offences contained in this legislation are Section 18 of the OAPA 1861 (malicious wounding with intent to cause GBH), Section 20 of the OAPA 1861 (maliciously inflicting GBH), and Section 47 of the OAPA 1861 (assault occasioning actual bodily harm).

An offence under Section 18 of the OAPA 1861 is the most serious non-fatal violent offence that a person can commit: it is punishable by a maximum term of life imprisonment. The offence can be committed in two ways:

  • By intentionally causing GBH to the victim (such as deliberately breaking their legs), with the court in R v Smith [1961] AC 290 holding that GBH requires ‘serious bodily harm’; or
  • By intentionally wounding the victim (such as stabbing).

Section 20 of the OAPA 1861 is used to prosecute less serious cases involving GBH, as demonstrated by the offence carrying a maximum sentence of only five years. Determining what constitutes a ‘less serious case’ does not involve examining the actual act committed by the defendant; instead, the difference between the two offences refers solely to the defendant’s mental state. More specifically, the focus is placed on the defendant’s intent: Section 20 of the OAPA 1861 requires the defendant to have merely foreseen that some harm might result from his actions, as confirmed in R v Savage [1992] UKHL 1. Section 18 of the OAPA 1861, on the other hand, requires that the defendant intended the serious harm or wounding to occur.

Section 47 of the OAPA 1861 is less serious still. This simply requires the defendant to commit an assault or battery – an intended use of unlawful force without consent –  which causes some form of actual bodily harm (ABH). ABH was defined in R v Miller [1954] 2 All ER 529 as any injury calculated to interfere with the health and comfort of the victim that is more than transient or trifling. Following R v Venna [1975], for the offence in Section 47 of the OAPA 1861 to be made out, this bodily harm must have been caused either intentionally or recklessly by the defendant.

The Common Law Position: A Short History

The first major case heard on the use of consent as a defence to offences against the person was AG's Reference (No. 6 of 1980) [1981] 3 WLR 125. This concerned two youths who decided to settle an argument with a fight. The fight resulted in one youth sustaining bruising to the face and a bleeding nose, which falls under the definition of ABH.

It was accepted as fact that both had consented to the violence; indeed, in preparation, one youth removed his watch, and the other removed his jacket. The question before the House of Lords, however, was whether prosecutions could be brought under Section 47 of the OAPA 1861.

The House of Lords held as a matter of policy that a person could not consent to violent acts resulting in ABH or greater harm unless one of the established exceptions applied. These exceptions were held to include properly conducted games and sports, reasonable surgical interference, cosmetic enhancements or horseplay. As explained by Lord Lane CJ, this decision was rooted in the belief that:

It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.

The House of Lords was given a further opportunity to explore this area of law in R v Brown [1994], an infamous case with which many law students and legal professionals will be familiar. Following various consensual sadomasochistic homosexual acts – including the nailing of a man’s foreskin to a board and the inserting of hot wax into another’s foreskin – five men were convicted under Section 47 of the OAPA 1861. Three were also convicted under Section 20 of the OAPA 1861.

The defendants appealed their convictions, with the case progressing all the way to House of Lords. By a bare majority, the House of Lords dismissed their appeals after giving considerable consideration towards the public policy aspect of firmly discouraging violent behaviour. Indeed, concluding that it is not possible to consent to acts that have caused ABH, Lord Templeman opined:

Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised…

However, in a powerful dissent, Lord Mustill argued that upholding the convictions in this case would constitute legal scrutiny of private sexual relations, an area in which courts should be reluctant to play an active part. He lamented how the majority was appearing to use ‘repugnance and moral objection’ to create a new crime.

The effect of the decision in R v Brown [1994] is illustrated by subsequent cases. In R v Emmett [1999], the defendant was charged under Section 47 of the OAPA 1861 after – following her requests – tying a plastic bag over his girlfriend’s head and, on a separate occasion, setting alight lighter fuel he had poured over her breasts. Here,the Court of Appeal  affirmed the decision in Brown by confirming that the defendant could not use his girlfriend’s consent as a defence.

The convictions in these two cases can be contrasted with the acquittal in R v Wilson [1997] Crim LR 573. Here, the defendant, at his wife’s request, branded his initials on her buttocks using a hot knife. After being convicted under Section 47 of the OAPA 1861, his conviction was overturned by the Court of Appeal. It was held that the cosmetic enhancements exception applied, as the court felt this was not logically different in practice to the lawful activity of tattooing. It was also observed that consensual activity between a husband and wife in the privacy of the matrimonial home was not a matter for the courts, reasoning which appeared to drawn inspiration Lord Mustill’s dissenting judgment in R v Brown [1994].

Interestingly, shortly after the decision in R v Brown [1994], the Law Commission produced a consultation paper which proposed reforms to the law in this area:

  1. Uphold the general rule set down by the majority in R v Brown [1994], but create exceptions for acts like circumcision, ear-piercing and tattooing. The exception of horseplay would be removed.
  2. Reforming the general rule set down by the majority in R v Brown [1994], such that consent to injury – so long as that injury was not serious (namely, ABH rather than GBH) – would be valid.

In both avenues of reform, the Law Commission suggested there should be a special cateogiry for sports and games to which special rules should apply. This would see criminal liability arise for acts carried out during sports and games only where the infliction of injury was intentional or reckless. Recklessness should be judged according to the defendant’s awareness of risk, and the reasonableness of taking that risk in the context of the sport in question.

At present, the Law Commission's proposals remain unimplemented. This is regrettable: both sets of proposals seems to bring an element of common sense to the question, with the first appearing to be a fair option which safeguards individual freedom of choice while bringing certainty. Certainty is, of course, an essential quality of the criminal law, because it allows citizens to plan their lives after ascertaining what courses of action are, and are not, punishable by the law.

R v BM: The Ear, The Tongue and The Modifier’s Scalpel

The Facts

BM is a trained tattooist and body piercer. While he has no recognised medical qualifications – which are not explicitly required to enter the profession - he had attended multiple short training courses on body modification procedures.

BM’s business was based in Wolverhampton. On three occasions between 2012 and 2015, clients of BM paid for his body modification services: one customer requested the removal of his pinna (the visible ear), a second requested the removal of his nipple, while a third requested that BM divide her tongue in two to give it a forked appearance often seen in reptiles.

All three procedures were performed without anaesthetic, and – as the medical experts testifying before the Court of Appeal confirmed – without any observable complications. Importantly, it was accepted as fact that all three customers had freely given their consent.

However, subsequently, BM was charged with three counts of wounding with intent to cause grievous bodily harm (GBH) under Section 18 of the Offences Against the Person Act 1861 (OAPA 1861). And in September 2017, in a pre-trial preparatory hearing at Wolverhampton Crown Court, HHJ Nawaz ruled in a written decision that it was not possible for a defence of consent to be brought to counter these charges. This decision was based on the precedent set down in R v Brown [1994].

BM, in anticipation of his trial at the Crown Court, challenged this aspect of HHJ Nawaz’s decision at the Court of Appeal, which gave its ruling on the matter in R v BM [2018] on 22 March 2018.

The Decision

The Court of Appeal in R v BM [2018] felt compelled to follow the R v Brown (1994) precedent. Giving the lead judgment, Lord Burnett CJ concluded that the general rule had to apply, because all the  evidence before the courtshowed that the current case did not fall under the reasonable surgical interference exception outlined in AG's Reference (No. 6 of 1980) [1981] 3 WLR 125.

Lord Burnett CJ outlined several key factors for reaching this conclusion. Firsltly, he noted that the procedures performed by BM presented no or minimal medical benefit. Furthermore, he pointed to expert evidence that detailed the clear risks of having these kinds of procedures performed by someone without the necessary medical qualifications. For example, the experts  explained that the tongue forking procedure presented a high risk of infection in an area of the human body that is almost impossible to keep sterile.

Meanwhile, the experts’ testimony also detailed how the removal of the pinna (the visible ear) is capable of causing severe hearing loss and possible injury to the facial nerve, as well as severe bleeding. Crucially, the Court of Appeal in R v BM [2018] heard that a procedure such as total or partial ear removal would never be performed by a registered cosmetic surgeon. To perform any cosmetic surgery in the United Kingdom, the Health and Social Care Act 2001 requires that a doctor must be listed on a Specialist Register held by the General Medical Council.

Also relevant to the decision in R v BM [2018] were guidelines issued by the General Medical Council to assist cosmetic surgeons. These stipulate that, before a procedure is carried out, the surgeon should meet with the patient on at least two occasions. The potential complications and risks must be explained and noted, and the patient must be given a ‘cooling off period’ to enable a patient the opportunity to change their minds if they so wish. None of this appeared to have occurred in R v BM [2018].

It was also pointed out that, when presented with patients requesting extreme procedures like those before BM, a registered plastic surgeon would also be alert to the possibility that a patient was suffering from Body Dysmorphic Disorder. This would feasibly give rise to pertinent questions about how far it was capable for the patient to make a rational and informed decision, and whether this would trigger the need for a referral to a psychologist or psychiatrist.

Evaluating the Decision: Does R v BM = BS? 

This case law in this area attempts to tread a very fine line between respecting an individual’s freedom of choice and expression, and the need to firmly discourage extremely risky and dangerous behaviour that may result in potential serious injury. R v BM [2018] highlights this judicial tightrope walk perfectly. It was agreed that all three ‘patients’ had freely and expressly consented to the procedure being performed. The procedures performed by BM were assessed by medical experts, who testified to the Court of Appeal that each procedure was performed to an acceptable standard.

Looking at the facts of R v BM [2018] in isolation, is it not unreasonable to question why BM was being prosecuted at all. Arguably, this appears the kind of case about which Lord Mustill in R v Brown [1994] was wary: ‘unelected judges’ should be reluctant to are interfere or play an active part in the private lives of individuals.

However, it must be noted that the job of judges – particularly the senior members of the judiciary – is not just to look at the facts of the case in isolation; they must also have consideration of the potential wider public and social effect of their decisions. When this is accounted for, the true reasoning for the Court of Appeal’s decision in R v BM [2018] becomes clear. 

Indeed, when the facts of the case are viewed through the prism of public policy – the importance of which was expressed powerfully and concisely by Lord Lane CJ in AG's Reference (No. 6 of 1980) [1981] 3 WLR 125 – it becomes glaringly obvious that the real issues at stake are the lack of proper regulation and accountability of those who perform such body modification procedures.

A crucial part of Lord Burnett’s judgment is the lack of regulation of the modification industry. Indeed, while businesses that offer services such as tattooing, ear piercing and acupuncture must register with their local authority under the Local Government (Miscellaneous Provisions) Act 1982 – which takes into account matters such as hygiene, waste disposal and cleanliness – Body modification is a service over and above tattooing: it  is an activity with no trade body, expected professional standards of training and qualification, or necessary medical qualifications.

Thus, it does not require a great leap of the imagination to recognise the potential harm that can be done by those with none or relatively little medical training performing such invasive and potentially life-altering procedures. Although the decision to have such procedures performed is a private one, the consequences can affect the public through the potential need for the NHS to provide medical care should any complications arise in which the body modification practitioner is unqualified to deal with.

Conclusion

On its face, the Court of Appeal’s decision in R v BM [2018] seems questionable: it appears to represent a clear example of the state interfering in the private lives of its citizens and further reducing the free choice of the individual to treat their body how they wish.

However, it is submitted that to treat this case only on its facts and to disregard the wider issues would be a serious error. Body modification is an unregulated and medically invasive profession which raises issues that concern not just the safety of procedures of a surgical nature, but also potential concerns about the patient’s mental health if they present extreme demands.. It is uncontroversial to state that both require the attention of qualified professionals who are trained to deal with the issues involved in a way that may involve invasive surgical procedures.

That is not to say that there are not many diligent, highly competent body modification professionals in society who treat patients in their care with the highest level of compassion. However, the fact remains that the profession’s lack of regulation opens up the possibility of uninsured and underqualified ‘cowboys’ presenting themselves as body modification artists who do not observe the required standards and risk causing great harm to those on their treatment tables.

Indeed, the costs of procedures that go awry do not stay with the individual; they are passed onto society to deal with the after-effects through the NHS and the taxpayer long after the scalpel has been removed. This may explain the Crown Prosecution Service’s conclusion that there was some public interest in prosecuting BM.

Ultimately, this is an area ripe for legislative action to enhance legal certainty and provide a safety net for patients should things go wrong. The proposals in the Law Commission’s unimplemented report provides a great starting point for action: it is down to Parliament to take the bull (or even one of BM’s patients) by the horns.

For the latest articles straight to your inbox, you can subscribe for free. Alternatively, follow @KeepCalmTalkLaw on Twitter or Like us on Facebook.

Tagged: Courts, Criminal Law, Justice, Rule of Law

Comment / Show Comments (0)

You May Also Be Interested In...

Communications Data: A Critical Investigative Tool or a Charter to Snoop?

17th Jul 2018 by Andrew D Parker

Book Review: 'Stories of the Law and How It's Broken' by the Secret Barrister

2nd Apr 2018 by Connor Griffith

Harkins v UK: Highlighting the Importance for Discourse on Extradition

9th Jan 2018 by Kateřina Hemalova (Guest Author)

A Damaging Disclosure Culture? Lessons from the Allan Case

24th Dec 2017 by Andrew D Parker

The Semi-Secret Terror Trial - A Leap of Faith in the Judiciary

13th Jun 2014 by Merry Van Woodenberg (Guest Author)

All Bark and No Bite? ‘The Pitbull’ Gerrie Nel

22nd May 2014 by Joseph Switalski (Guest Author)

Section Pick April

Book Review: ‘Doing Justice’ by Preet Bharara

Editors' Pick Image

View More

KCTL News

Changing of the Guard: Moving Keep Calm Talk Law Forward

12th Aug 2018

An Anniversary or Two: Four Years of Keep Calm Talk Law

11th Nov 2017

Rising from the Ashes: The Return of Keep Calm Talk Law

18th Nov 2016

Two Years On, Keep Calm Talk Law’s Legacy is Expanding

11th Nov 2015

Keep Calm Talk Law's First Birthday

11th Nov 2014

Twitter

Javascript must be enabled for the Twitter plugin to function. Click below to visit us on Twitter.

Free Email Subscription

Subscribe to Keep Calm Talk Law for email updates, and/or weekly roundups. You can tailor your subscription on activation. Both fields are required.

Your occupation / Career stage is used to tailor your subscription and for readership monitoring.

Uncheck this box if you do not want to receive our monthly newsletter.

By clicking the Subscribe button, you agree to our privacy policy and terms of service. Please ensure you read these in full.

Free Subscription