Newsletters Criminal Defence 13th Apr 2018

Consent and Society’s Evolving Values Cannot Outweigh Public Protection

Fifteen years on from R v Brown [1993] UKHL 19 the Court of Appeal again had to grapple with society’s modern values in the context of consent as a defence to assault in R v BM [2018] EWCA Crim 560.

The appellant was a tattooist and body piercer who also practised ‘body modification’. The appeal concerned whether the consent of three customers to body modification procedures (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 a forked effect) could provide a defence to a charge under s.18 Offences Against the Person Act 1861).

Uncontroversial medical evidence was relied on by the prosecution which identified that each of the procedures performed carried significant risks, both in respect of the procedures themselves and subsequent infection. The evidence confirmed such procedures would never be undertaken by a plastic surgeon for solely aesthetic reasons and 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 under the Health and Social Care Act 2001. GMC guidance requires that before a procedure is carried out, the surgeon meets the patient on at least two occasions, the potential complications and risks are explained and a cosmetic surgeon should be on the look out for potential psychiatric or psychological problems.

In considering their judgment the Court of Appeal reviewed Brown which provides that although a prosecutor had to prove the absence of consent in order to secure a conviction for mere assault it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason and, in the absence of such a reason, the victim’s consent afforded no defence to such a charge. In Brown the satisfaction of sado-masochistic desires did not constitute a good reason.

The appellant argued that public policy considerations should not invalidate the personal autonomy and consents given by his customers. It was argued the procedures carried out by the appellant were not medical or surgical but rather should be seen as a natural extension of tattooing and piercing, which also can carry some medical risk but to which consent has long been accepted to negative any criminal activity.

The Court of Appeal accepted the special categories identified in the case law do not lend themselves to a coherent statement of underlying principle noting ”they are at best ad hoc, and reflect the values of society recognised from time to time by the judges”. The special cases

represent a balance struck by the judges between the general interest of society in limiting the approbation of the law for significant violence and to protect vulnerable individuals who provide consent to serious violence as against the need to reflect the general values of society which have long accepted tattooing and piercing as acceptable, along with such things as ritual circumcision, sports and the other sub-categories identified in the cases.

The Court of Appeal concluded that there are two features which underpin almost all of the special cases: “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 the injured party. That would apply to tattooing and piercing and, again, perhaps to those with a religious hue, including ritual male circumcision.”

The justification of ‘entertainment’ as a special reason for violent sports to be exempt and ‘unreasonableness’ for less extreme forms of body modification such as piercing to be exempt sits uneasily with the Court of Appeal’s rejection of body modification as an exempt category. The decision appears to be motivated by concern that  “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”.

The Court of Appeal concluded there was no proper analogy between extreme body modification, which is unregulated and does not require any particular training, and tattooing or piercing, which may only be conducted by registered practitioners in premises that are licensed by the local authority, body modification. The Court of Appeal noted that the procedures were performed by an unregulated, unqualified practitioner for no proper medical reason and the protection of the public in this context, therefore, extended beyond the risks of infection, poor surgery or an inability to deal with immediate complications. The body modification in this case concerned irreversible surgery, without anaesthetic, with profound long-term consequences which, in almost every other context, would invite some assessment of mental health or vulnerability of the customer. In this case, therefore, the personal autonomy of the appellant’s customers did not provide a justification for removing body modification from the ambit of the law of assault.

Fiona Robertson

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