R v BM
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon |
| Judgment Date | 22 March 2018 |
| Neutral Citation | [2018] EWCA Crim 560 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201704570 B4 |
| Date | 22 March 2018 |
[2018] EWCA Crim 560
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT WOLVERHAMPTON
HHJ Nawaz
T20177055
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON Mr Justice Nicol
and
THE HON Mr Justice William Davis
Case No: 201704570 B4
Jonas Hankin QC (instructed by Crown Prosecution Service) for the Respondent
Michael Anning (instructed by Stevens Solicitors) for the Appellant
Hearing dates: 21 February 2018
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] 1 AC 212. This appeal is brought pursuant to Section 35(1) of the 1996 Act with leave of Judge Nawaz.
The Preparatory Hearing
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 Background Facts
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:
“Our promise to you … is to look after you before, during and after your procedure. We promise that the environment of your treatment is clean and sterile to a high standard. All that we ask is that you continue with our hard work and take care of your modification when you leave the studio. We will educate you the best we can on how to do this before you leave the studio.”
The customer then signed a declaration to the effect that he was aware that the process involved risk, that he has chosen to have the procedure done of his own free will and finally that he will not hold the “artist responsible in anyway for any problems or medical conditions that may arise” from the procedure.
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...
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