Body Modification: A Case of Modern Maiming?

AuthorAndrew Beetham
Published date01 June 2018
Date01 June 2018
Subject MatterCase Notes
Case Note
Body Modification: A Case
of Modern Maiming?
RvBM [2018] EWCA Crim 560;
[2018] WLR (D) 187
body modification, grievous bodily harm, defence of consent, personal autonomy
The Appellant, a tattooist and body piercer, also offered body modification services to customers. Although
the Appellant was registered with the local authority to perform tattooing and body piercing (under Local
Government (Miscellaneous Provisions) Act 1982, Part VIII), they were not registered to perform body
modifications (at [7–8]). In their capacity as a body modifier, the Appellant performed the following mod-
ifications: (i) on 23 July 2015, the Appellant removed a customer’s left ear (at [9]); (ii) on 16 August 2012, the
Appellant removed a customer’s nipple (at [11]); and (iii) on 23 July 2012, the Appellant split a customer’s
tongue, so that it resembled that of a reptile (at [11]). All such modifications were performed by and with the
customers’ consent (some with a signed consent form) and this was accepted by the Crown (at [1]).
The Appellant was charged with three counts of wounding with intent to cause grievous bodily harm
(contrary to s. 18, Offences Against the Person Act 1861) along with three alternative counts of inflicting
grievous bodily harm (contrary to s. 20) as a result of these three body modifications. On 29 September
2017, at a preparatory hearing, the question of whether the customers’ consent to the body modifications
was a defence (at [1]). On 6 October 2017, His Honour Judge Nawaz ruled that consent could not provide
any defence to the charges on the basis of the decision of the House of Lords in RvBrown [1994] 1 AC
212 (at [2]). The judge’s ruling was made under the Criminal Procedure and Investigations Act 1996, s.
31(3)(b), and he gave the Appellant permission to appeal to the Court of Appeal under s. 35(1) (at [2]).
In the Court of Appeal, the Appellant submitted tha t (i) while he accepted that Brown was not
wrongly decided, public policy considerations should not invalidate the consents given by the customers
(at [34]); (ii) Brown could be distinguished as that case involved sado-masochistic activity and there was
good reason why the Appellant’s conduct should be permitted in that it protected the customers’ personal
autonomy (at [34]); (iii) the procedures carried out were not medical or surgical but more akin to body
adornment and therefore were natural extensions to tattooing and body piercing (for which consent has
long been accepted to negative criminal activity) (at [34]); and (iv) as a combination of all submissions,
the procedures carried out should be immunised from the criminal law of assault (at [35]).
Held, dismissing the appeal, that the Court of Appeal could see no good reason why body mod-
ification 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 (at [45]).
When reading the judgment of the Lord Chief Justice, it seems that he was surprised that a case such as
this had reached the Court of Appeal. Firstly, he found it ‘striking’ that the judge’s ruling did not provoke
guilty pleas to the charges on the indictment (at [3]) and, secondly, he appears to be critical of the ‘clearly
The Journal of Criminal Law
2018, Vol. 82(3) 206–208
ªThe Author(s) 2018
Reprints and permissions:
DOI: 10.1177/0022018318779643

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