The case of R v BM highlights the legal and ethical boundaries between personal autonomy, consent, and criminal liability in the context of body modification. The judgement confirmed that even when individuals consent to procedures that cause significant bodily harm, such consent does not necessarily provide a lawful defence under English criminal law.
Body modification includes practices such as tattooing, piercing, and surgical alterations, often undertaken as expressions of personal or cultural identity. While tattooing and piercing have gained widespread acceptance as legitimate forms of adornment, more extreme practices—such as tongue splitting, ear removal, and nipple removal—raise difficult questions of legality and public safety.
The court in R v BM reaffirmed that grievous bodily harm involves severe injury caused intentionally or recklessly, typically requiring significant medical treatment or carrying long-term consequences. Such acts fall within the ambit of serious offences under the Offences Against the Person Act 1861.
The decision also underscored that the defence of consent is not unlimited. Although English law allows individuals to consent to certain forms of harm (such as in lawful sports, medical procedures, or body adornments like tattooing), this defence does not extend to situations where consent authorises serious injury without legitimate justification. The case therefore emphasises the limits of autonomy, balancing an individual’s freedom to make personal choices against the wider societal interest in preventing harm.
Facts of R v BM
Brendan McCarthy, the appellant in R v BM, was a registered tattooist and body piercer operating under the Local Government (Miscellaneous Provisions) Act 1982, Part VIII. In addition to these authorised activities, he provided body modification services, though he did not hold any specific registration permitting such procedures.
The appellant carried out a number of modifications with his customers’ consent, including:
- The removal of a customer’s left ear on 23 July 2015.
- The removal of a customer’s nipple on 16 August 2012.
- The splitting of a customer’s tongue, to resemble that of a reptile, on 23 July 2012.
In some cases, the customers signed consent forms, which the Crown accepted as genuine. Despite this, the appellant was charged with three counts of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861, and three alternative counts of inflicting grievous bodily harm under section 20 of the same Act.
During a preparatory hearing on 29 September 2017, the legal issue of whether customers’ consent could serve as a defence was raised. On 6 October 2017, His Honour Judge Nawaz ruled that consent could not operate as a defence, citing the House of Lords decision in R v Brown [1994] 1 AC 212. The ruling was made pursuant to section 31(3)(b) of the Criminal Procedure and Investigations Act 1996. The appellant was granted permission to appeal to the Court of Appeal under section 35(1).
Before the Court of Appeal, the appellant advanced several arguments:
- That public policy considerations should not invalidate the consent of his customers.
- That his case could be distinguished from R v Brown, which dealt with sadomasochistic activity, whereas his procedures reflected personal autonomy and the right to bodily self-determination.
- That the procedures were akin to tattooing and piercing—long recognised as lawful practices where consent prevents criminal liability.
- That, taken together, his activities should be exempt from the scope of criminal law on assault.
R v BM Judgement
The Court of Appeal rejected the appellant’s arguments and upheld the ruling that consent was not a defence to charges of wounding with intent or inflicting grievous bodily harm. The judgement reaffirmed the principle from R v Brown that consent is not a valid defence to serious bodily injury when such injury is significant and intentional.
The court concluded that body modification did not fall into any special category warranting exemption from this rule. Unlike tattooing and piercing—considered personal adornments with long-standing legal acceptance—procedures such as ear removal, nipple removal, or tongue splitting amounted to serious physical harm. The court emphasised that these procedures could not be regarded merely as adornments, but instead as the removal or alteration of body parts with no medical justification.
Policy concerns played a significant role in the decision. The court noted:
- That body modification procedures can carry profound and irreversible consequences.
- That many who seek such procedures may be vulnerable to mental health issues, raising concerns about the validity and reliability of their consent.
- That personal autonomy does not extend to involving another person in conduct that would otherwise amount to a criminal offence.
The court also underlined that the appellant was not a medically qualified professional and that the procedures carried substantial health risks. Expert evidence indicated that these interventions were not medically necessary and lacked proper medical safeguards, increasing the likelihood of harm.
For these reasons, the Court of Appeal held that public policy could not support recognising consent as a defence in such circumstances. To do so, the court reasoned, would undermine the protective purpose of the criminal law.
Conclusion
The ruling in R v BM reaffirms that consent cannot provide a defence to serious bodily harm where the injury is intentional and substantial. The case underscores the legal distinction between accepted adornments such as tattooing and piercing, and more extreme practices involving permanent alteration or removal of body parts.
By rejecting the analogy between body modification and lawful adornment, the court reinforced the principle that criminal law serves not only to punish harmful conduct but also to protect individuals from exposure to severe injury, even where such injury is self-chosen.
Ultimately, R v BM stands as a significant authority on the limits of consent in English criminal law. It highlights the court’s cautious approach to expanding exceptions in this area, ensuring that public policy continues to prioritise health, safety, and welfare over unfettered individual autonomy.