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Conclusions

 Larry is liable for battery for pushing Millie. Depending on the

struggle’s severity, he may also be liable for affray. No lawful

excuse arises from the debt dispute.

 Millie is likely not criminally liable for Larry’s cut if her force

during the struggle was a necessary and reasonable response to

Larry’s unlawful push (self-defence under s.76 CJIA 2008). If the

tribunal rejects self-defence and finds she used unlawful force

contributing to the fall, s.47 ABH is plausible; s.20 wounding

would be ambitious absent proof she at least foresaw some harm.

 Ken is clearly liable for s.18 OAPA (causing GBH with intent) for

the head strike with a heavy vase, given his intent to cause

serious injury and the resulting fractured skull. A

defence-of-another claim is untenable on these facts.



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With respect to Millie’s father, a s.20 charge is arguable (GBH caused by the immediate aftermath of Ken’s unlawful violence, supported by Burstow/Ireland and the thin skull rule in Blaue), but success is uncertain due to remoteness concerns for a shocked bystander (defence arguments drawing on Dawson and Carey).

This ordering reflects prosecutorial reality: a straightforward battery against Larry; a s.47 against Millie; and an emphatic s.18 against Ken, with a cautious view on extending liability to the father’s collapse.

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Ken (in relation to Millie’s father)

The harm. The father, an elderly man, collapses with acute cardiac symptoms on seeing his daughter’s grievous injury. He requires a prolonged cardiac admission.

Candidate offence: s.20 OAPA (inflicting GBH). Serious cardiac decompensation necessitating lengthy hospitalization is GBH. After R v Burstow; R v Ireland [1998] AC 147, “inflict” in s.20 means “cause”; direct physical contact is unnecessary. Causation has factual force: the

collapse occurs immediately upon witnessing the aftermath of Ken’s violent assault.

Causation and remoteness. The Crown would argue that the collapse is a natural result of the shocking violence, and the thin skull rule applies: the defendant takes the victim as he finds him, including hidden physical vulnerabilities (R v Blaue [1975] 1 WLR 1411). The mens rea for s.20—intention or recklessness as to some physical harm to some person—is satisfied by Ken’s deliberate infliction of serious harm on Millie (Mowatt; Savage), and need not be re-directed specifically at the father (sometimes expressed as “general malice” without needing formal transferred malice).

The defence would contend that the father is a secondary victim of shock, arriving after the assault has occurred, and that his cardiac injury is too remote. While “dangerousness” and foreseeability are concepts more at home in unlawful-act manslaughter, courts have policed remoteness in analogous contexts: cf. R v Dawson (1985) 81 Cr App R 150

and R v Carey [2006] EWCA Crim 17, where unusual fatalities unconnected to the immediate application of force undermined liability.

On these facts, a court could find the chain unbroken—particularly given the immediacy and gravity of the scene—but there is genuine litigation

risk.

Assessment. A s.20 charge is arguable: causation is supported by Burstow/Ireland, and Blaue neutralises the father’s fragility. Yet prosecutors may be cautious given remoteness concerns about harm to a bystander not directly assaulted. s.47 is unavailable because it requires an assault upon the person harmed.

Other structural points No liability for Larry for Millie’s later GBH. Ken’s deliberate intervention is a novus actus interveniens breaking the chain between Larry’s initial battery and the fractured skull. There is no evidence of joint enterprise or encouragement by Larry for Ken’s violence. Public order overlay. Ken’s conduct would also satisfy affray (s.3 POA), but this is typically subsumed by the far graver s.18 count.

Charging both may be duplicative.

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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

S20 - definition as above

GBH? Really serious harm (DPP v Smith)

Inflict - cause - Factual But for - Legal causation - link - de minimis. Collapsed immediately from the shock - therefore contributed to the heart attack (Smith)

thin skull (Blaue)

MR- subjective reckless - foresight some harm might result.

Transferred malice - Latimer -

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s.18 OAPA 1861 (causing GBH with intent). Ken strikes Millie over the head with a heavy vase intending to cause her serious injury, and she sustains a fractured skull. “Really serious harm” satisfies GBH (R v

Bollom [2004] 2 Cr App R 6 (24)), and a skull fracture is classic GBH. Because Ken intended serious injury, the mental element for s.18 is satisfied. It is unnecessary to prove a “wound” if GBH is proved; s.18 can

be charged as “causing GBH with intent.”

(NB: An attempted-murder count would require an intention to kill; the facts indicate intent to cause serious injury, so s.18 is the principled charge, with s.20 as a potential alternative.

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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.

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Millie's charged with s20 - Larry's head injury

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Millie's charged with s20 - Larry's head injury

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s20 - maliciously wounding or inflicting gbh with or without a weapon.

GBH - Really serious harm (Smith)

Wound - dermis and epidermis - continuity of the skin (Eisenhower)

CPS Charging Standards - sustained or substantial medical treatment, life changing.

inflict? cause (Ireland) - Causation - factual (White) legal (operating and substantial cause (Smith) - de minimis (Pagett)

Struggle contributed to his injury

Defence - break in chain by him - free deliberate an informed action which he chose to take (Kennedy No. 2) Roberts - unreasonable, daft'

If it not accepted that injury serious enough to be GBH, s47 will be considered.

Assault occasioning ABH

Assault - battery

Occasioning - causing

ABH - Miller

MR - maliciously - intention or subjective recklessness as to the GBH (Savage) Foresight - some harm might result (Mowatt)

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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 pushed Millie - battery

Definition - Collins v Wilcock

Apply to facts - P - intention to subjective recklessness (Venna) Larry direct intention (Mohan) to apply force

Defence - jostling so conduct generally acceptable in everyday life (Collins v Wilcock)

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Affray (possible). As with Larry, affray could be charged if the

struggle met the s.3 POA standard, subject to the same self-defence analysis

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s.20 “wounding”? Technically a “wound” is any break in the continuity of the whole skin (JCC v Eisenhower [1984] QB 331), which a

serious cut meets. But s.20 also requires intention or recklessness as to some physical harm (R v Mowatt [1968] 1 QB 421; Savage). On the lean facts, proving that mental element against Millie is uncertain; s.47 is the more realistic count if self-defence fails.

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Millie (in relation to Larry’s head injury) Potential s.47 OAPA 1861 (ABH). Larry suffers a “serious cut” to his forehead when he loses balance and strikes the table. A cut plainly exceeds the “transient or trifling” threshold for ABH (R v Chan-Fook [1994] 1 WLR 689; DPP v Smith (Michael) [2006] EWHC 94 (Admin)). For s.47, the prosecution must show that an assault or battery by Millie occasioned the harm; it is enough that her unlawful force was a more-than-minimal cause, and she need not intend or foresee ABH (R v Roberts [1971] 56 Cr App R 95; R v Savage; Parmenter [1992] 1 AC 699)

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Affray (possible). If the ensuing “struggle” involved the use or threat of unlawful violence by both such that a person of reasonable firmness present would fear for their personal safety, the elements of affray under s.3 Public Order Act 1986 may be made out. Whether that threshold is

crossed is evaluative and fact-sensitive; the test uses a hypothetical bystander and does not require an actual witness

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Battery (common assault by battery). When Larry pushes Millie, he applies unlawful force intentionally or recklessly. That satisfies battery at common law, triable under s.39 Criminal Justice Act 1988 (Collins v Wilcock [1984] 1 WLR 1172). Injury is unnecessary; any non-consensual touching beyond everyday jostling suffices. There is no lawful entitlement to use force to recover a civil debt. On these facts, no defence is apparent.

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This problem raises non-fatal offences against the person (battery,

ABH, GBH), public order, causation, and self-defence/defence of another. I

address each actor in turn, then draw overall conclusions. Assumed law:

England and Wales.

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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

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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.