In December 2015, tattoo artist Brendan McCarthy, known as Dr Evil, was arrested.
After a preliminary ruling in the Court of Appeal, on 12 February 2019, Mr McCarthy admitted three counts of wounding with intent to cause grievous bodily harm – even though his victims (or ‘customers’ if you wish) had consented to the procedures.
What is Wounding with Intend to Do Grievous Bodily Harm?
The charges put to Mr McCarthy were under Section 18 of the Offences Against the Person Act 1861, which reads:
‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, . . . with intent, . . . to do some . . .grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life.’
Requirements for the Offence
For a wounding with intent to do grievous bodily harm conviction, the defendant’s actions must meet four requirements.
Causing
The jury must be satisfied the defendant’s actions caused grievous bodily harm. Typically, the prosecution will use a ‘but for’ argument stating that the victim would not have suffered grievous bodily harm but for the defendant’s actions. They must also prove that the defendant was a substantial cause of grievous bodily harm.
Grievous Bodily Harm
Typically defined as serious harm, grievous bodily harm can constitute one significant injury or multiple smaller injuries. However, the ‘harm’ does not need to require treatment, have lasting consequences or impact the victim’s health and comfort. What’s more, the ‘harm’ can be physical or mental.
Intent
The prosecution must prove that the defendant intended to cause serious harm. Intent to cause minor harm is not sufficient.
Wounding
The law defines a wound as a break in the skin’s continuity. A bruise caused by broken internal blood vessels is not enough.
If the actions did not cause a wound, the prosecution can push for an ‘intent to do grievous bodily harm’ charge.
How is Wounding with Intent Tried
Due to its severity, wounding with intent to cause grievous bodily harm can only be tried by indictment in a Crown Court.
Penalties
The maximum sentence for wounding with intent to do grievous bodily harm is life imprisonment. It has an offence range of two to sixteen years.
Potential Defences
The most common defence for this charge is self-defence. Successfully argued, the jury may acquit the defendant.
Self-defence has two requirements:
- The individual believed that such actions were necessary to defend themselves
- Their actions were a reasonable response
The defendant should establish the circumstances of their actions. Mistaken beliefs do not harm their defence, as they honestly believed defence was necessary.
The mistaken belief argument applies to the reasonableness requirement too. The level of force has to be reasonable compared to the original attack. So, if you believed that the victim was attacking you with a knife, you could respond lawfully with a knife.
This Case
Mr McCarthy admitted to the wounding with intent to grievous bodily harm charges relating to:
- a Mr Lott who had his left ear removed on 23rd July 2015
- an unknown female who had her tongue split with a scalpel on 23rd July 2012
- another victim who had their nipples cut out
All of them signed a consent form agreeing to Mr McCarthy’s procedures. But crucially, the Act does not mention consent.
Consent to Grievous Bodily Harm
R v Brown 1994 in the House of Lords (now called the Supreme Court) defines this area of law.
In that case, a group of sadomasochistic individuals appealed their conviction for committing acts of violence against each other, including genital torture. Every passive partner (or victim) consented to said violent acts and suffered no permanent injury as a result of them.
Here’s how Lord Templeman responded to the argument that every person has a right to deal with their body as they choose:
‘I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Where the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally.’
He also noted:
‘The victims were youths, some of whom were introduced to sado-masochism before they attained the age of 21. The evidence disclosed that drink and drugs were important to obtain consent and increased enthusiasm.’
Lord Jauncey added:
‘It was accepted by all the Appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial.’
Lord Lowry stated:
‘Everyone agrees that consent remains a complete defence to a charge of common assault and nearly everyone agrees that consent of the victim is not a defence to a charge of inflicting really serious personal injury (or “grievous bodily harm”).’
In Mr McCarthy’s case, the Court followed R v Brown and observed:
‘What the Defendant undertook for reward in this case was a series of medical procedures performed for no medical reason.’
and
‘The fact that the desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness, but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable.’
and
‘In short, we can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury.’
To my mind, where to draw the line is a very difficult question.
However, most people of goodwill would think that seriously invasive medical procedures should be regulated to screen out the mentally ill and ensure that only trained medical practitioners conduct them.
Other Offences Against the Person
The Offences Against the Person Act 1861 covers four serious crimes. Above, we have covered the most serious: wounding with intent to do grievous bodily harm.
Grievous Bodily Harm - Wounding Without Intent
This charge applies to situations where a defendant intended to do some harm rather than serious harm. Cases can be tried in Magistrates and Crown Courts and carry a maximum sentence of five years imprisonment.
Actual Bodily Harm
If an attacker intends to assault a victim but mistakenly causes harm, they can be charged with actual bodily harm.
For a conviction, the prosecution must only demonstrate that the defendant was negligent, not that they intended to injure the victim. Therefore a jury can find the defendant guilty of a serious offence they had no intent to commit. It carries a five-year imprisonment maximum sentence and can be heard in a Crown or Magistrates Court.
Common Assault
Common assault is the least severe of the Offences Against the Person. It carries a maximum sentence of six months imprisonment, although it can result in a fine or community penalty instead.
Common assault is:
- The unlawful application of force on another person or
- Making another person fear that you will use immediate force against them
It does not need to cause injuries.
Instruct Our Solicitors Today
If you have suffered wounding with intent to cause grievous bodily harm or face a criminal charge, contact our solicitors today. We are litigation experts that can represent you in both Crown and Magistrates Court proceedings.
To learn more about this topic and others, please discover our other blog posts.
