Court of Appeal
Regina v M(B)
[2018] EWCA Crim 560
2018 Feb 20; March 22
Lord Burnett of Maldon CJ, Nicol, William Davis JJ
CrimeAssaultConsentTattooist adding “body modification” to his servicesBody modification, including removal of body parts, undertaken without medical training or regulation Defendant charged with offences of wounding with intent to do grievous bodily harmWhether victim's consent providing a defence— Offences against the Person Act 1861, s 18

The defendant, who was registered with the local authority for the purpose of tattooing and body piercing, added “body modification”, which was unregulated, to his services. He was due to stand trial on three counts of wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. The procedures performed by the defendant which founded those counts were: (1) the removal of a customer’s ear; (2) the removal of a customer’s nipple, and (3) the division of a customer’s tongue to produce an effect similar to that enjoyed by reptiles. Each customer, as the prosecution accepted, consented to the respective procedures being performed. The question whether consent could provide a defence to the counts in the indictment was determined at a preparatory hearing where the judge ruled that consent could provide no defence. The defendant appealed against that ruling. It was submitted that there was a good reason why the conduct of the defendant should be permitted, namely, that it protected the personal autonomy of his customers and should be viewed not as a surgical procedure but as akin to body adornment, which was widely accepted in British and other cultures. On behalf of the prosecution it was contended that the procedures in question were, in truth, medical and amounted to cosmetic surgery. They were serious irreversible procedures not warranted medically. It was not in the public interest to decriminalise such activities when performed with the consent of the customers.

Held, appeal dismissed. The exceptions to the general rule that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason delivered no easily articulated principle by which any novel situation might be judged. The most that might be said about the special cases was that they represented a balance struck by judges to reflect a series of different interests. There was a general interest of society in limiting the approbation of the law for significant violence, albeit inflicted with consent and there was some need to protect from themselves those who had consented, most particularly because they might be vulnerable or even mentally unwell. Yet there was a need to reflect the general values of society which had long accepted tattooing and piercing as acceptable, along with ritual circumcision, sports and other sub-categories identified in the cases. Whilst the exceptions were incapable of being accommodated within any universally stated test, there were two features which might be thought to underpin almost all of them: (1) they might produce discernible social benefit, such as did the sporting exceptions, and (2) it would be regarded as unreasonable for the common law to criminalise the activity if engaged in with consent by the injured party. That would apply to tattooing and piercing and perhaps to those with a religious hue, including ritual male circumcision.. New exceptions should not be recognised on a case by case basis, save perhaps where there was a close analogy with an existing exception to the established general rule. The recognition of an entirely new exception would involve a value judgement which was policy laden, and on which there might be powerful conflicting views in society. In the instant case, there was no proper analogy between body modification, which involved the removal of parts of the body or mutilation, and tattooing, piercing or other body adornment. What the defendant undertook for reward in this case was a series of medical procedures performed for no medical reason. The personal autonomy of his customers did not provide the defendant with a justification for removing body modification from the ambit of the law of assault. It was true that if the customers had undertaken these procedures on themselves they would have committed no criminal offence, but the personal autonomy of one individual did not extend to involving another in what would otherwise be a crime. Accordingly, there was no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provided no defence to the person who inflicted that injury if the violence caused actual bodily harm or more serious injury paras 38–42, 44–46.

R v Brown (Anthony) [1994] 1 AC 212, HL(E) applied.

Michael Anning (instructed by Stevens Solicitors, Stoke-on-Trent for the defendant.

Jonas Hankin QC (instructed by the Crown Prosecution Service) for the Crown.

Clare Barsby, Barrister.

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