R v BM: Errors in the Judicial Interpretation of Body Modification
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
| DOI | http://doi.org/10.1177/0022018319834372 |
| Subject Matter | Articles |
Article
RvBM: Errors in the Judicial
Interpretation of Body Modification
Samuel Walker
Bournemouth University, Talbot Campus, UK
Abstract
RvBMis the latest case to consider the exceptions to the Offences Against the Person Act 1861
(OAPA). The exceptions allow an action causing injury that would be a criminal offence to
become lawful if the person injured consents to the action. The consequences of this judgment
is that body modifications are categorised as medical procedures (and therefore subject to the
medical exception only) and new exceptions should not be developed on a case by case basis,
instead allocating development of the exceptions to Parliament. Two implications follow from
the BM judgment. First, it provided a limited definition of body modifications which are now
categorised as medical procedures. Secondly, their Lordships have restricted further devel-
opment of the lawful exceptions to offences against the person. This is a lost opportunity for
developing the common law exceptions to the OAPA through an autonomy-based liberal
judicial interpretation.
Keywords
Modification, body, autonomy, offences against the person, medical justification
Introduction
RvBM
1
is the latest case to consider the exceptions to the Offences Against the Person Act 1861
(OAPA). The exceptions allow an action causing injury that would be a criminal offence to become
lawful if the person injured consents to the action. For example, boxers consent to their opponent hitting
them and people receiving tattoos or piercings consent to the penetration of the skin involved. BM
concerned a tattooist and body modifier who carried out the following acts: the removal of (for separate
customers) an ear, a nipple and bifurcation of the tongue. Under the Local Government (Miscellaneous
Provisions) Act 1982, Part VIII, he was registered as a tattooist. However, there is no registration scheme
for body modification and in neither case are qualifications required or available. These modifications
Corresponding author:
Samuel Walker, Department of Law, Bournemouth University, Talbot Campus, Fern Barrow BH12 5BB, UK.
E-mail: swalker@bournemouth.ac.uk
1. [2018] EWCA Crim 560.
The Journal of Criminal Law
2019, Vol. 83(4) 245–257
ªThe Author(s) 2019
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DOI: 10.1177/0022018319834372
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