The appellant in R. v BM [2018] EWCA Crim 560, [2018] 2 Cr. App. R. 1, was a tattoo and piercing artist, who also offered “body modification services”. He was charged with three counts of wounding with intent to do grievous bodily harm (GBH), contrary to Offences Against the Person Act 1861 (OAPA), s. 18, in relation to the removal of a customer's ear, the removal of a customer's nipple, and the division of a customer's tongue such that it appeared forked, like that of a lizard. Whilst the appellant and his premises were registered under the regulatory framework that governs tattooing and piercing, and whilst he had attended courses on body-modification procedures, the court noted that anyone can advertise as a body-modification artist, without regulatory oversight or appropriate training to ensure the safety of customers. Nevertheless, all three customers consented, and so the question for the Court of Appeal was whether that consent could provide a defence to the charges. In a decision delivered by the Lord Chief Justice, the court ruled that it could not.

Any analysis of consent to harm under the OAPA must begin with R. v Brown [1994] 1 A.C. 212. The facts of Brown, involving injuries inflicted during the course of sadomasochistic activity, are well-known, as is the general rule laid down by the House of Lords in that case. Whilst consent will provide a defence to a charge of assault or battery, consent will not provide a defence to charges of assault occasioning actual bodily harm (ABH), unlawful wounding or inflicting GBH, or wounding or causing GBH with intent (contrary to OAPA, ss. 47, 20 and 18, respectively), unless the activity falls within a category of exceptionally lawful activity. These exceptions exist in relation to ritual circumcision, tattooing, ear piercing, bravado and rough horseplay, religious mortification, surgery, and sports (including boxing). In Brown, the House held that it was not in the public interest to extend these categories to include sadomasochism. That the list of exceptions might be extended to admit new categories of lawful activity is implicit within the refusal to do so in Brown. This was made explicit by the Court of Appeal in Dica [2004] EWCA Crim 1103, [2004] Q.B. 1257, when Judge L.J. noted (at [41]) that the categories are neither closed nor immutable. Within this framework, the body-modification procedures at issue in BM could have been analysed in one of three ways: (1) as analogous to tattooing and piercing, and therefore lawful; (2) as analogous to cosmetic surgery, and therefore lawful; or (3) as a new category of activity, to be added to, or remain excluded from, the list of exceptions. The court identified body modification as a distinct category, and refused to extend the list of exceptions to include it.

When rejecting the analogy between tattooing and piercing on the one hand, and body modification on the other, the court was clearly influenced by the fact that body-modification procedures fall outside of the regulatory framework for tattooing and piercing. The court also distinguished body modification from tattooing and piercing on the basis that the former “involves the removal of parts of the body or mutilation” (at [42]). The court viewed the procedures as more like surgery than tattooing, but dissimilar to surgery in ways that preclude the extension of the surgical category to capture body-modification procedures. Drawing upon the evidence of a consultant plastic surgeon and a consultant ear, nose and throat specialist, the court emphasised the lack of medical justification for the procedures and the serious health risks involved, and noted that body modification falls outside of the professional and regulatory regime that governs medical practice.

The court's analysis left body modification as a wholly separate, entirely unregulated, category of activity. Counsel for the appellant argued that such modifications should be lawful, to protect the autonomy of individual customers. The court (at [39]–[40) conceded that the existing categories of lawful activity “represent a balance” of various interests, rather than one coherent principle. According to the court, two features “underpin almost all of them”: they produce a social benefit, and it would be “unreasonable for the common law to criminalise the activity” (at [40]). When considering the possibility of extending the exceptions to cover body modification, the court, no doubt influenced by the evidence of the medical practitioners, noted the very serious health risks involved in the procedures and expressed concern about the possibility that individual customers might be motivated by Body Dysmorphic Disorder. Unlike qualified medical practitioners, body-modification artists are not trained, alert and able to refer customers for mental health support. The argument from personal autonomy was insufficient to overcome the need to protect the public from serious medical risks and from their own (perhaps less than fully autonomous) decision-making. The tension on display here between paternalism, public safety and autonomy is familiar in this area. But significantly, whilst the court took the view that it was not in the public interest to recognise body modification as lawful, the refusal to extend the list of exceptions was taken on a more general principle. The court held that new exceptions “should not be recognised on a case by case basis” because to do so would “involve a value judgement which is policy laden, and on which there may be powerful conflicting views in society” (at [41]). Such decisions are best left for Parliament.

This signals a shift in approach from Brown and Dica. New forms of activity may only be recognised as a lawful activity if there is a “close analogy” to an existing category (at [41]). This being the case, we might now expect to see increased pressure on the Law Commission to re-review the ad hoc collection of existing categories of lawful conduct, and increased pressure on their external boundaries (see the Law Commission's various, unimplemented, proposed reforms to the law in this area, Law Comm. CP no. 139, Consent in the Criminal Law (1995)).

With the outer boundaries of the existing categories in mind, it is unfortunate that the court dispensed so briefly, and misleadingly, with R. v Wilson [1997] Q.B. 47. In that case, the defendant was charged with ABH after he branded his initials into his wife's buttocks with a hot knife, at her request and with her consent. In BM, Lord Burnett C.J. bracketed the decision in Wilson to one side, noting that the Court of Appeal in that case had concluded that “consensual activity between a husband and wife in the matrimonial home was not a matter for criminal investigation” (BM, at [33]). Yet the proper ratio of Wilson is that the wife's consent was valid because the activity was analogous to piercing and tattooing. Branding (either with hot instruments or using electricity to cauterise the skin) and scarification (where incisions are made in the skin so that scar tissue develops in a pattern) are offered as services in tattoo parlours across England and Wales. Are these procedures analogous to tattooing, and therefore lawful, or do they constitute “body modification”, which is unlawful?

Certainly, branding and scarification are more akin to tattoos than the procedures performed by the appellant in BM; they do not involve “removal of parts of the body”, and are unlikely to constitute “mutilation”. This might suggest a “close analogy” to tattooing. However, the regulatory background to surgery and tattooing, and the inapplicability of those regimes to the body-modification procedures in BM, played a central role in the determination of the court that the procedures were analogous to neither of those categories. Does it follow, then, that branding and scarification, being just as unregulated as the more extreme procedures involved in BM, fall into the “body modification” category? Were that to be the case, on the court in BM’s reading of Wilson, branding, at least, is lawful when it is performed between a married couple in the privacy of their own home, but not when performed by a registered tattoo or piercing artist in studio. Clearly this is not correct: if branding and, arguably, scarification is lawful in private, it must be so in the studio. Indeed, one might argue that such procedures should only be lawful in the studio, given the increased risk inherent in “amateur” bedroom branding. In failing to recognise the proper ratio of Wilson, the court missed the opportunity to clarify the outer boundaries of the tattooing and piercing category.

Looking beyond the tattooing and piercing category to the law on consent to harm in general, whilst the court was right to recognise that the jurisprudence in this area is based on policy, the consequent decision to disclaim any institutional competence to add further exceptions to the list of lawful activities comes at a cost. The law will remain ill-principled, inconsistent and illiberal, until Parliament intervenes. Unfortunately for legitimate body-modification artists and aficionados, and for those who enjoy sadomasochistic sexual activities, parliamentary intervention in the criminal law rarely comes in the form of decriminalisation.