The appellant is by trade a tattooist and body piercer who added “body modification” to his services. He operates from premises in Wolverhampton. He is due to stand trial in the Crown Court at Wolverhampton on an indictment charging three counts of wounding with intent to do grievous bodily harm contrary to Section 18 of the Offences Against the Person Act 1861. There are three alternative counts of inflicting grievous bodily harm contrary to Section 20 of the same Act. The procedures performed by the appellant which found these counts were first, the removal of a customer’s ear; secondly, the removal of a customer’s nipple; and thirdly, the division of a customer’s tongue to produce an effect similar to that enjoyed by reptiles. The prosecution was content to accept that each of the customers consented to the respective procedures being performed, or at least that it was not possible to disprove that fact. The question arose whether consent could provide a defence to the counts on the indictment.

That question was determined at a preparatory hearing held on 29 September 2017 following which His Honour Judge Nawaz gave a written decision on 6 October 2017. In a careful ruling, His Honour Judge Nawaz determined that consent could provide no defence. His ruling was made under section 31(3) of the Criminal Procedure and Investigations Act 1996. He relied upon the well-known decision of the House of Lords in R v Brown [1994] 1AC 212. This appeal is brought pursuant to Section 35(1) of the 1996 Act with leave of Judge Nawaz.

It is striking that the ruling did not provoke guilty pleas to any of the counts on the indictment. Mr Anning, who appears for the appellant, has made clear that if the ruling of the judge is upheld then no defence can be put before the jury. He also indicated that, in the circumstances of this case, the alternative counts relating to Section 20 of the 1861 Act are redundant. That is because there is no question but that each of the procedures described was performed with the necessary intent for the purposes of Section 18. We agree with that assessment.

It is clear from the materials before us that the prosecution was at least considering seeking permission to amend the indictment to include counts based upon placing transdermal implants into the scalp of a customer and inserting an object under the skin of the hand of another.

The result of the preparatory hearing is clearly untidy in the sense that it has not conclusively determined the practical outcome of the underlying proceedings, while it appears that it was intended to do. It would have been better, in our opinion, had the issue been resolved in the ordinary way by a ruling, rather than in the course of a preparatory hearing generating the possibility of an interlocutory appeal. Had the appellant then pleaded guilty, the matter could have come to this court in the usual way. This is not one of those cases identified in R v I,P,O,I,U and G [2009] EWCA Crim 1793, [2010] 1 Cr. App. R 10 at [21] where the ruling ought to have been the subject of an interlocutory appeal with a view to saving court time in the trial.

The appellant was the proprietor of a business in Wolverhampton. He was registered with the local authority for the purpose of piercing and tattooing.

Tattooing, electrolysis, acupuncture, semi-permanent skin colouring, ear piercing and other skin piercing may be conducted only in premises that are registered by the relevant local authority. Each practitioner operating from the premises must also be registered. The registration scheme is found in sections 13 to 16 of the Local Government (Miscellaneous Provisions) Act 1982. Registration provides lawful authority to undertake the specified tasks. Local authorities may supplement the registration scheme with bye laws directed, in particular, at cleanliness and hygiene. Undertaking the specified task without being registered is an offence – see section 16. But the same tasks performed by or under the supervision of a medical practitioner do not fall within the scheme of registration - see sections 14(8) and 15(8). That, no doubt, is because the provision of medical services is closely regulated by other legislation. In considering the grant of a licence local authorities considerer matters such as hygiene, cleaning, sterilisation, provision for the disposal of waste and the like. Details of qualifications, training and experience of the individuals giving the treatments are also sought by the local authority.

Body modification, which is a term which encompasses each of the procedures in issue in this case (and many more), is unregulated and those who practice it require no particular training or qualification. Anyone can set himself up as a body modifier. We are told that the appellant in fact attended various short courses, but he has no medical qualifications which equip him to carry out these surgical procedures, deal with adverse consequences and still less to make any judgments about the mental health of his customers.

On the 23 July 2015 a customer named Ezechiel Lott had his left ear removed by the appellant. He signed a consent form. The consent form described the appellant as a “qualified modification artist”, although what that means is opaque. The form then seeks confirmation whether the customer suffers from various diseases or is taking medication, of the sort familiar to anyone attending a doctor or dentist. It continues:

Mr Ezekiel Lott’s ear was removed without anaesthetic.

The tongue splitting was undertaken with a scalpel on an unknown female on 23 of July 2012, also without anaesthetic. Although no consent form was signed (or at least none is in the papers before us), relating to the tongue splitting or nipple removal, the prosecution accept that consent was given. Similarly, the nipple was removed from an unknown male on 16 August 2012 without anaesthetic.

Uncontroversial evidence was served by the prosecution and placed before the judge by agreement from John Murphy, an ear, nose and throat consultant and also from Nigel Mercer, a consultant plastic surgeon.

Removal of an ear gives rise to a risk of moderate to severe hearing loss and injury to the facial nerve. As Mr Murphy explains, removal of the pinna (the visible ear) can cause the ear canal to close. That is difficult to correct surgically. The function of the pinna is to catch sound and funnel it into the ear. Some hearing loss will follow the removal of the pinna. Furthermore, the facial nerve is located immediately in front and below the pinna and thus its removal, particularly by an unskilled “surgeon”, carries a risk of facial paralysis. Mr Murphy also explains that at a practical level, loss of the pinna makes it difficult to wear spectacles and also to use a hearing aid. He notes the inevitable risk of infection attending such a procedure. Mr Mercer confirms that total ear removal or partial ear removal would never be done by a plastic surgeon for aesthetic reasons although both may be required for medical reasons. He explains that to perform any cosmetic surgery in the United Kingdom the doctor concerned must be listed on a Specialist Register held by the General Medical Council. This is a requirement of the Health and Social Care Act 2001. The General Medical Council has issued guidelines to assist cosmetic surgeons. Before a procedure is carried out, the surgeon would meet the patient on at least two occasions. The potential complications and risks would be explained and noted. Mr Mercer indicates that there is no requirement to perform a psychiatric assessment before carrying out cosmetic surgery. Nonetheless, a cosmetic surgeon would be on the look out for potential psychiatric or psychological problems and, if necessary, refer the patient for an assessment. The General Medical Council has also introduced rules which require a two week cooling off period before surgery is performed to enable a patient to change his or her mind.

Proper informed consent would be obtained and recorded in the approved forms.

If an ear were to be removed, it would be done under sterile conditions in an operating theatre. The ear is well served by blood vessels and so its removal would cause a good deal of bleeding. The ear canal is also an area which carries a lot of bacteria which enhances the risk of infection. About a week after the operation any patient would have a follow up appointment to remove sutures, check for infection and make an assessment of how the procedure has gone. Some months later the patient would be seen again to examine the scar before finally being discharged.

Mr Mercer has seen photographs of Mr Lott’s head. He accepts that the procedure “has been done quite well in that the skin edge is cleanly cut” but the stitching was not done to the standard of a plastic surgeon.

Mr Mercer also saw images in relation to the nipple removal. After the nipple was removed, the skin was closed in a straight line. In his opinion, a plastic surgeon would not remove nipples for aesthetic reasons, but only for medical reasons.

Although this appeal does not involve the procedure, Mr Mercer also comments on another form of body modification occasionally performed by those who started as body piercers. It is to reroute the urethra in a male by inserting a piece of metal at the base of the penis. This, again, is not a procedure that would be undertaken by a plastic surgeon. It merely illustrates the very broad range of activities that can fall within the ambit of the broad term of “body modification”.

Mr Mercer viewed the tongue splitting. This too would never be done by a reputable surgeon for aesthetic purposes, or indeed any other purpose. There are particular risks associated with it. First, the tongue will bleed very heavily. Secondly, it is liable to swell up after incisions are made. Furthermore, the mouth is a very dirty environment and hard to keep sterile. Infection is an ever-present risk. Splitting the tongue to create a forked tongue has adverse impact on both speech and feeding.

A plastic surgeon would be alert to the possibility that a patient was suffering from Body Dysmorphic Disorder if he or she presented with extreme demands for cosmetic surgery. That would give rise to real questions about whether the patient concerned was able to make a rational and informed decision about surgery and at least prompt the surgeon to consider a referral to a psychiatrist of psychologist.

The question whether the consent of a victim could provide a defence to offences of causing actual bodily harm contrary to section 47 of the Offences against the Person Act 1861, or wounding contrary to section 20, was authoritatively considered in the case of Brown. The circumstances were unorthodox in that the injuries were inflicted during the course of consensual extreme sado-masochistic sex. A majority of the House of Lords, with Lord Mustill and Lord Slynn dissenting, concluded that consent provided no defence. The headnote in the official report captures the ratio of the decision:

Actual bodily harm means any injury “calculated to interfere with the health and comfort of the [victim]” but must be more than transient or trifling: R v Miller [1954] 2 QB 282 at 292. A wound is caused when the whole of the skin, dermis and epidermis, is broken including the inner skin within the cheek, lip or urethra: R v Smith (1837) 8 C & P 173; R v Waltham (1849) 3 Cox 442. Section 20 of the 1861 Act covers both wounding and also the infliction of grievous bodily harm. That means really serious bodily harm: DPP v Smith [1961] AC 290; R v Cunningham [1982] AC 566.

The decision in the Brown case flowed from detailed consideration of three earlier authorities, R v Coney (1882) 8 QBD 534, R v Donovan [1934] 2 KB 498 and Attorney General’s Reference (No. 6 of 1980) [1981] QB 715. The Coney case concerned spectators at a prize fight who were prosecuted as secondary participants in any offence committed by the fighters. The Donovan case concerned caning for sexual gratification. The Attorney General’s Reference case concerned a fight, not in the course of properly conducted sport. It was held that where two people fight in those circumstances intending or causing actual bodily harm, it is no defence for a person charged that the other consented, whether the fight is held in public or in private. Lord Lane CJ explained that it was not in the public interest that people should cause each other actual bodily harm for no good reason. He encapsulated the principles in the following passage of his judgment between 718E and 719F:

The majority of the House of Lords endorsed the approach of Lord Lane, with the result that for the appellants to avoid criminal liability, it was necessary for the committee to conclude that the conduct in question fell into a special exception to which the general rule did not apply. It is perhaps not unfair to suggest that the special categories hitherto identified in the cases do not lend themselves to a coherent statement of underlying principle. They are at best ad hoc, and reflect the values of society recognised from time to time by the judges. Some were referred to in the final paragraph of the quotation we have set out from Lord Lane’s judgment in the Attorney General Reference case. Each of the categories was discussed by the Law Commission in its Consultation Paper No 134 Consent and Offences Against the Person completed on 14 December 1993 between para 9.1 and 11.23. Its second consultation paper, No 139, contains a comprehensive exposition of the law relating to each of the exceptions.

In the Brown case itself Lord Templeman at 231F explained that “ritual circumcision, tattooing, [and] ear-piercing …are lawful activities.” Lord Mustill at 267C identified “bravado (where a boastful man challenges another to try to hurt him with a blow) and religious mortification.” Lord Slynn summarised the categories where consent provides a defence as including,

The Law Commission noted that no further indication was given in the Brown case to support the various exceptions and added that,

Lord Mustill’s approach to the question before the House of Lords was different from that of the majority, and indeed of Lord Slynn. He considered that the case should not have been about the criminal law of violence but should have been about the criminal law of sexual relations: 256G. He approached the appeal,

In the course of his discussion of the various cases where consent was taken to provide a defence to a charge of serious assault, at page 266F, he touched on surgery:

Ultimately, Lord Mustill concluded that the prosecution had failed to demonstrate a sufficient reason to justify the criminal law interfering in matters of private morality: 273 C – E. He had earlier (272H – 272A) drawn a distinction between an offence under section 47 of the 1861 Act and an assault causing grievous bodily harm and returned to the topic at 274D:

Lord Slynn of Hadley accepted the analytical approach of the majority, but would have drawn the line in a different place. At 279B, he accepted that “there exist areas where the law disregards the victim’s consent even where that consent is freely and fully given. These areas may relate to the person (e.g. a child); they may relate to the place (e.g. in public); they may relate to the nature of the harm done.” At page 280, he proposed drawing the line “between really serious injury on the one hand and less serious injuries on the other”. At page 280D he indicated:

He went on to explain that none of the injuries before the court amounted to grievous bodily harm.

We have discussed the dissents in some detail because, even though the approaches of Lord Mustill and Lord Slynn were different in the context of sado-masochistic sex, neither accepted that consent could provide a defence for consensual violence causing really serious bodily harm. Each would have allowed the appeal because the charges were for causing actual bodily harm or wounding, not for causing grievous bodily harm.

For completeness we mention R v Wilson [1996] 2 Cr App R 241 where the appellant had branded his wife’s buttocks during consensual sexual activity, undoubtedly causing actual bodily harm. He was prosecuted for an offence contrary of section 47 of the 1861 Act. This court concluded that consensual activity between husband and wife in the matrimonial home was not a matter for criminal investigation and prosecution under section 47.

On behalf of the appellant, Mr Anning accepts that we are bound by the ratio of the Brown case. It is no part of his argument that it was wrongly decided. Nonetheless, he submits that public policy consideration should not invalidate the consents which the prosecution accept were given in respect of the three procedures with which we are concerned. He distinguishes Brown on the basis that it was concerned with sado-masochistic activity. He submits that there is a good reason why the conduct of the appellant should be permitted, namely that it protects the personal autonomy of his customers. It is wrong, submits Mr Anning, to characterise the procedures carried out by the appellant as medical or surgical. They should be viewed as akin to body adornment, which is widely accepted in British culture and other cultures. What was done by this appellant should be seen as a natural extension of tattooing and piercing, the last of which involves wounding by breaking the skin, but to which consent has long been accepted to negative in any criminal activity.

In short, the case advanced by the appellant is that the procedures he conducted, albeit that they caused really serious bodily harm, should be immunised from the criminal law of assault, just as surgical procedures performed by medical practitioners and those who take part in properly organised boxing matches attract protection. The bite of the criminal law should be restricted to regulatory offences, if such are committed.

The appellant accepts that the procedures he performed carry medical risk but, submits Mr Anning, so too do body piercing and tattooing.

Mr Hankin QC submits that the procedures in question are, in truth, medical and amount to cosmetic surgery. They are serious irreversible procedures not warranted medically. They have adverse physiological consequences and involve significant risk. It is not in the public interest to decriminalise such activities when performed with the consent of the customers. He submits that each of the injuries in question amounted to grievous bodily harm, given its ordinary and natural meaning of really serious bodily harm. They go well beyond actual bodily harm and involve much more than a wound, i.e. breaking the continuity of the skin. It is a big and unwarranted step to suggest that an entirely new special category should be recognised.

We have observed that the exceptions to the general rule confirmed in the Brown case deliver no easily articulated principle by which any novel situation may be judged. The difficulty is perhaps best illustrated by considering boxing, undoubtedly lawful when organised properly as a sport (but not otherwise), where each protagonist is at liberty to knock out his opponent, not infrequently causing very serious injury indeed. Lord Mustill paid tribute to the valuable judgment of McInearny J. in Pallante v Stadiums Pty [1976] V.R. 331 in trying to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process, but concluded that the task is impossible.

Instead, the most that might be said about the special cases is that they represent a balance struck by the judges to reflect a series of different interests. There is a general interest of society in limiting the approbation of the law for significant violence, albeit inflicted with consent. There is some need to protect from themselves those who have consented, most particularly because they may be vulnerable or even mentally unwell. Moreover, serious injury, even consented to, brings with it risk of unwanted injury, disease or even death and may impose on society as a whole substantial cost. Yet there is a need to reflect the general values of society which have long accepted tattooing and piercing (not just of ears) as acceptable, along with such things as ritual circumcision, sports and the other sub-categories identified in the cases. That is not to say that each receives universal support from all sections of society, but the exceptions are so deeply embedded in our law and general culture that it would require Parliament to render such activities subject to the ordinary criminal law of assault. We have seen that Parliament has indeed intervened to provide for the regulation of activities such as tattooing, piercing and the like, and had earlier done so as regards children: Tattooing of Minors Act 1969.

Whilst the exceptions are incapable of being accommodated within any universally stated test, there are two features which may be thought to underpin almost all of them. First, they may produce discernible social benefit. That is true of the sporting exceptions and may even be true of boxing or “dangerous exhibitions” as entertainment. It is possible that those with a religious hue might also be considered as conferring a social benefit, at least at the time they were recognised. But the second is that it would simply be regarded as unreasonable for the common law to criminalise the activity if engaged in with consent by (on behalf of) the injured party. That would apply to tattooing and piercing and, again, 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 is a close analogy with an existing exception to the general rule established in the Brown case. The recognition of an entirely new exception would involve a value judgement which is policy laden, and on which there may be powerful conflicting views in society. The criminal trial process is inapt to enable a wide-ranging inquiry into the underlying policy issues, which are much better explored in the political environment.

That said, there is, to our minds, no proper analogy between body modification, which involves the removal of parts of the body or mutilation as seen in tongue splitting, 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. When Lord Lane referred to “reasonable surgical interference” in the Attorney General’s Reference case (quoted in [23] above) it carried with the implication that elective surgery would only be reasonable if carried out by someone qualified to perform it. The professional and regulatory superstructure which governs how doctors and other medical professionals practice is there to protect the public. The protections provided to patients, some of which are referred to in the medical evidence before the judge, were not available to the appellant’s customers or more widely to the customers of those who set themselves up as body modifiers. It is immaterial that this appellant took some trouble to ensure a sterile environment when he operated, or that his work was in some respects tidy and clean. Consent as a defence could not turn on the quality of the work then performed.

The protection of the public in this context extends beyond the risks of infection, bungled or poor surgery or an inability to deal with immediate complications. Those seeking body modification of the sort we are concerned with in this appeal invited the appellant to perform irreversible surgery without anaesthetic with profound long-term consequences. The fact that a desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable. There are good reasons why reputable medical practitioners will not remove parts of the body simply when asked by a patient. One only has to reflect on the care, degree of inquiry and support given to a patient before gender reassignment surgery can be performed to appreciate the extensive nature of the protections provided in the medical context.

The personal autonomy of his customers does not provide the appellant with a justification for removing body modification from the ambit of the law of assault. It is true that Mr Lott could have cut his own left ear off and in doing so would have committed no criminal offence. So too the other customers. But the personal autonomy of one individual does not extend to involving another in what would otherwise be a crime. We note that the European Court of Human Rights rejected the arguments advanced under article 8 of the Convention by the appellants in the Brown case, (1997) 24 EHRR 39, and remind ourselves that the level of harm engaged in that case was below really serious injury.

In short, we can see 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 provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury. Even were the general rule to be revisited by Parliament or the Supreme Court and a different line drawn which allows consent to act as a defence to causing actual bodily harm and wounding, body modification causes really serious harm. Neither of the dissentient voices in the Brown case would have been willing to allow consent to act as a defence to causing grievous (serious) bodily harm and we note that the proposals of the Law Commission, whilst suggesting some loosening of the constraints found in Brown, would also not have gone that far. The appellant’s argument envisages consent to surgical treatment providing a defence to the person performing the surgery whether or not that person is a suitably qualified as a doctor, and whether or not there is a medical (including psychological) justification for the surgery. Even were we attracted by the argument, which we are not, such a bold step is one that could only be taken by Parliament.

For these reasons, we dismiss the appeal.