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ABH - interferes health or comfort of the victim

Consent - Can't consent to ABH or above unless

1) Lawful exceptions - tattoo? Drunk is valid consent. Defence - 'decided'

Hep C - GBH - really serious harm (Smith)

Biological injury - Brown, Dica, Golding

No knowledge of dirty needle.

Slingbsy

MR s20 - recklessly causing GBH

Negligence? Civil?

Knew dirty needle

Buttocks - ABH

Consent - Brown Defence - Wilson = not married not in a stable relationship unlikely.

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Larry is a friend of Millie. He has in the past lent Millie money, but has never been repaid. When Millie goes to visit Larry at his flat they enter into an argument about the money. Larry pushes Millie (causing her no injury) and they continue to struggle. Larry loses his balance and bangs his head against the corner of the coffee table. He suffers a serious cut to his forehead.

Larry’s flatmate, Ken returns home and seeing Larry bleeding on the floor he picks up a heavy vase and hits Millie over the head intending to cause her serious injury. Millie suffers a fractured skull.

Just at that moment, Millie’s elderly father arrives to collect her and drive her home. At the sight of his daughter with such injuries, he experiences sudden chest pain and collapses. He requires a lengthy hospital stay on the cardiac ward to stabilise his heart function.

Consider the criminal liability, if any, arising in this scenario.

AI ‘answer’

1. Larry’s Actions: Larry pushes Millie (causing her no injury)

Our answer:

Battery - Unlawful application of force (Fagan).

MR - intention or subjective reckless

Application - aim or purpose to apply force (direct intention - Mohan)

Push beyond what would be expected in everyday life (Collins v Wilock; F v West Berkshire)

Pushing Millie: Although Larry pushed Millie, causing no injury, this could still be considered an assault. Not an assault because force was actually applied. Assault does not require physical injury, just the intent/subjective recklessness to cause apprehension of immediate unlawful force. No caselaw, no application

Cut to the forehead - defendant - Millie

GBH - Wound - Eisenhower. CPS Charging standards - life changing injury as it could scar the face?

s20 - wound or inflict GBH

Inflict? - Ireland - cause and inflict mean the same thing.

Causation - Factual - But for (White)

Legal - Causal link - Smith - operating and substantial cause

Defence - he shouldn't have struggled - Roberts - 'daft' and unreasonable response. break in the chain of causation?

MR - s20 - Maliciously - Savage & Parmenter - intention or subj recklessness

Application - reckless to struggle with someone. Unjustified risk taking.

Conclusion ?

If not accepted by the jury GBH - s47. Same as per above in relation causation. There is a battery. ABH? Miller.

Struggle Leading to Injury: Larry’s injury from the struggle (banging his head) is self-inflicted and does not result in criminal liability for Millie unless it can be proven that she acted with intent or recklessness to cause such harm. Foresight of some harm required for s20 (Mowatt) S47 - Savage & Parmenter - no need to foresee the harm, only the battery.

2. Ken’s Actions:

Larry’s flatmate, Ken returns home and seeing Larry bleeding on the floor he picks up a heavy vase and hits Millie over the head intending to cause her serious injury. Millie suffers a fractured skull.

Our answer

GBH? - Really serious harm (DPP v Smith). CPS - needing substantial and sustained medical treatment.

s18 - Intended to cause serious harm - direct intention (Mohan) as his aim/purpose.

Hitting Millie with a Vase: Ken’s action of hitting Millie with a vase, intending to cause serious injury, constitutes a serious offense. This could be classified as:

Assault Occasioning Actual Bodily Harm (ABH): Under Section 47 of the Offences Against the Person Act 1861, causing harm with intent.

Grievous Bodily Harm (GBH): Under Section 20 or Section 18 of the same Act, depending on whether the intent to cause serious injury can be proven. Section 18 is more severe as it involves specific intent to cause serious harm.

3. Millie’s Father’s Condition:

Resulting Heart Attack:

Just at that moment, Millie’s elderly father arrives to collect her and drive her home. At the sight of his daughter with such injuries, he experiences sudden chest pain and collapses. He requires a lengthy hospital stay on the cardiac ward to stabilise his heart function.

Our answer

GBH? - heart attack - really serious harm. CPS - told 'lengthy hospital stay'.

s20 - causation

Factual But for (White) - expert evidence, Shock led to the heart attack.

Legal - causal link - Contributes to the heart attack (Pagett); Kimsey - more than slight or trifling link.

Thin skull rule - Blaue. Bollom.

MR = Transferred malice?

Reckless? Risk that her father would suffer some harm as a result hitting her over the head (Mowatt).

AI:

The heart attack suffered by Millie’s father could potentially be linked to the shock of seeing his daughter injured. However, establishing criminal liability for this would be complex. It would require proving that the shock was a direct and foreseeable result of Ken’s actions, which might be challenging.

AI conclusion:

In summary:

Larry could be liable for assault.

Ken could be liable for ABH or GBH, depending on the level of intent proven.

Millie’s father’s condition might not result in direct criminal liability for Ken unless a direct causal link can be established.

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2.   Suzy and Betsy were enjoying a girls’ weekend away at the seaside.  Both had been through difficult break-ups and were enjoying some time together, away from their personal difficulties.

During a long and boozy lunch, they agreed to do something to remember their weekend away.  Suzy decided to get a tattoo and Betsy a nose piercing.  Suzy, who had drunk a significant amount of alcohol, stumbled into a tattoo parlour and asked for an image of a bulldog on her arm. The tattooist completed the tattoo.  Betsy had her nose pierced but two weeks later discovered she had contracted Hep C as the piercer had used a dirty needle.

A few weeks later, Suzy and Betsy went out dancing.  Whilst Suzy was chatting to Jeb, Betsy met Harry. They went home together and had sex. During sex Harry asked Betsy if he could spank her – Betsy agreed. The spanking left several bruises on Betsy’s buttocks. Meanwhile, Suzy had gone home with Jeb.  After having sex, she asked Jeb to burn the bulldog tattoo off her arm and he obliged by burning Suzy’s arm with an iron.

Betsy had not told Harry that she had Hep C. Harry has now contracted Hep C.

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Tongue splitting: one of the procedures the defendant was convicted for. Shutterstock

The conviction in England of a body modification practitioner for causing grievous bodily harm with intent will have come as a surprise to many practitioners of body modification.

The charges relate to three procedures carried out between 2012 and 2015. The procedures the defendant had performed were a tongue splitting, the removal of an ear, and the removal of a (man's) nipple. All the procedures had been undertaken at the defendant's tattooing and piercing studio and had been performed with the consent of the clients.

There are limits on the harm individuals can consent to. Most people are aware that the law does not sanction euthanasia, yet may be unaware that giving consent to the infliction of lesser harms may also not absolve those causing the injury from criminal charges.

Read more: Assisted-dying laws are progressing in some places - the UK isn't one of them

This is a longstanding legal principle. Where actual bodily harm or above is inflicted upon a person with no good reason, in public or private, the consent of the victim is irrelevant. Whether there is a "good reason" is a matter for the courts to decide.

For example, it has long been accepted that things such as regulated sports and games, reasonable surgery and male circumcision are activities for which lawful consent can be given. If consent is given and the client is of the prescribed age, piercing and tattooing have also been accepted as lawful. But there is no definitive list of those activities to which consent will provide a defence to bodily harm and it is for the courts to decide in any novel circumstance whether there is a good reason.

The ruling

This was an issue in the most recent case. At a preliminary hearing in Wolverhampton, the Crown Court judge had ruled that the consent of the clients to these body modifications did not make the consequent injuries lawful. In other words, the consent of the "victims" did not mean that an offence had not taken place.

The case reached the Court of Appeal as a result of this ruling - heard as the case of R v BM. It is unusual for the Court of Appeal to hear an appeal before trial, but here the court had been asked to decide whether the Crown Court judge was correct to rule that there was no defence of consent.

The Court of Appeal held that the judge was correct and, in these circumstances where serious injuries were caused, the consent of the clients did not mean that offences were not committed. The court considered whether the procedures that had been performed were analogous to tattooing and piercing and decided that the injuries caused by the removal of body parts and tongue splitting were far more serious than those incurred in the course of those lawful activities.

They also felt that there was no "good reason" to allow consent to absolve the appellant of liability. They stressed that the procedures posed a serious risk to health and were surgical in nature - yet they were performed for no good medical reason by an individual who was not medically trained.

This left the defendant with no defence to the charges of grievous bodily harm and when the case was sent back to the Crown Court he entered a guilty plea.

Shutterstock

This all sounds perfectly sensible, yet it ignores the fact that the law allows us to consent to many activities that are inherently foolish or dangerous. For example, we may opt to have a full facial tattoo or to engage in boxing. We may consent to sex with a partner who we know to have HIV and run the risk of infection.

Too much risk?

This reasoning has a long history. It follows the authority of Brown, a case decided in the early 1990s, that any student of the law - and all legal practitioners - will be familiar with. In the Brown case, a number of men engaged in sadomasochistic sexual activities, inflicting consensual injuries upon one another. This case established that there was no good reason for allowing consent to negate liability for the injuries caused. The risks that flowed from the defendants' actions - both to one another and to society as a whole - justified criminalising their activities.

Read more: Where should the law draw the line between consent and culpability in sadomasochism?

In R v BM, the Court of Appeal voiced similar opnions; they could not understand why anyone would wish to have extreme body modification procedures and believed the courts should protect individuals from engaging in this risky behaviour.

The difficulty with this decision is that we are still left with no clear statement of the law in relation to "body mods". The conviction was obviously for the three procedures the defendant had performed. However, the Court of Appeal's judgement was not restricted to tongue splitting and the removal of body parts. The court stated that "body modification" procedures (other than tattooing and piercing) that result in injury are unlawful. This may then include other procedures that have become fairly popular, such as ear pointing (removing part of the ear to give it a pointed appearance), scarification or branding.

Read more: The new tattoo: is body branding legal?

More importantly, the Court of Appeal has not clarified the legal position for procedures that result in less serious harm, such as trans or sub-dermal implants - the insertion of materials under or partially under the skin. These may also be unlawful to perform as they are not strictly analogous to piercing. Hopefully, a sensible prosecution policy will prevent such cases reaching the courts.

As I have suggested previously, we are now in desperate need of clarification of the legal position. The Court of Appeal was seemingly oblivious of the popularity of body modification procedures and is likely unaware that it has left body modification practitioners unsure of whether they are operating within the limits of the law. This now needs to change.

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Body modification - when consent is not a defence

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The conviction in England of a body modification practitioner for causing grievous bodily harm with intent will have come as a surprise to many practitioners of body modification. The charges relate to three procedures carried out between 2012 and 2015.

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Non-Fatal Offences against the Person S18 Exam errors Errors Student results To add - % 2022 Coursework Issue concerning severe bruising and concussion Section 20 Issue concerning a fractured eye socket as a result of running away from a gun being pointed at them s20 not