Dr Evil - the demon tattooist of Wolverhampton

Dr Evil

Brendan McCarthy, who self-styles himself Dr Evil, has entered a guilty plea to causing grievous bodily harm on several people. There’s nothing exceptional about that, except that all of Dr Evil’s victims not only asked to be seriously wounded… they actually paid for the privilege!

Mr McCarthy is a tattoo artist from Wolverhampton who offered body modification to his customers. This includes tattoos, piercings and tongue splitting as well as genital beading, ear modifications and nipple removal. It seems to have been the tongue splitting, ear modification and nipple removals that formed the basis of the case against him.

Dr Evil's menu

Dr Evil was charged with assault occasioning grievous bodily harm, which is an offence contrary to sections 18 and 20 of the Offence Against the Person Act 1861; I gather from the press reports that Mr McCarthy was charged with the more serious version under section 18, 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.”

A Dr Evil Pixie Ear

Okay, I know it’s not the easiest definition to read but then it will be celebrating its 158^th birthday this year so maybe we’ll cut it some slack. Put simply, we can say that to be guilty you must cause really serious injury to another person without having a lawful excuse and you have to either intend to cause that injury or intend to resist or prevent a lawful arrest taking place. Thus, to be guilty, Dr Evil would have had to have caused really serious injury and intended to do so. What about that “lawful excuse” bit? That will apply if you can show that the law allowed you to inflict those injuries, for example, let’s say John is about to kill Sarah. It will be lawful for PC Derek to shoot John to save Sarah’s life.

Dr Evil’s case is about consent and whether his customers could consent to the injuries he inflicted upon them. The general rule is that you cannot consent to be seriously injured, although there are exceptions to that rule. For example, when you play a contact sport or to receive medical treatment such as open heart surgery where in any other context opening the chest of a living human would certainly be GBH of the most serious type. Another exception allows you to consent to tattooing and similar procedures, e.g. in R v Wilson, Mrs Wilson went to her doctor who noticed that the letters “AH” had been branded on her bottom. When questioned by the police, Mr Wilson quickly admitted branding his wife stating that she had asked him to tattoo his name on her body but that he did not know how to tattoo so a conversation had taken place and they had decided he would use a hot knife to brand his initials on her. Mrs Wilson declined to support the prosecution of her husband. Mr Wilson was convicted and appealed. Lord Justice Russell gave judgment of the court saying,

“For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else.

We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing.”

We can see therefore that the law allows people to consent to injury, even really serious injury, but only where they do so for some good reason and to that we must add that the good reason must not run counter to the public interest, Attorney General's Reference (No.6 of 1980) – where it was held that participants in a street fight could not consent to assault against themselves. You may, at this point, be wondering exactly how it is that boxing is permitted? That’s a good question for another day but suffice to say that it is a question that has foxed some of the greatest legal minds, Lord Templeman had this to say on the subject,

“I intend no disrespect to the valuable judgment of McInerney J. in Pallante v. Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it.”

Ear modification in progress

No writing on violence and consent is complete without mention of R v Brown & Others, the defendants were accused of inflicting serious injuries upon members of their group for sexual gratification. The “victims” were described as participating “willingly and enthusiastically”. The court held that the infliction of injury, albeit only short-lived injuries in Brown, was unlawful because it was not in the public interest to allow men to consent to this type of activity. It is worth noting that injuries inflicted in the course of sports or in the case of Wilson arise from lawful activities; however, when Brown was decided section 1 of the Sexual Offences Act 1967 was still in force. That section, as in force when the acts complained of in Brown, legalised homosexual sex between men aged over 21 years where it was enjoyed in private but s. 1(2)(a) specifically outlawed homosexual sex where, “when more than two persons take part or are present” and retained criminal sanctions for them. The “victims” are described as “youths” and at least one of them was aged 15 years when he was befriended by one of the middle-aged defendants. Thus, the assaults in Brown arose from a situation that was, at the time, unlawful. Mr Brown’s case was not aided by the fact that consent was obtained through the use of drink and drugs to “increase enthusiasm”. It must also be said that the actions in Brown, while only attracting charges of actual bodily harm and the lesser form of GBH were still very serious, Lord Templeman described them thus,

“The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples. The victims were degraded and humiliated sometimes beaten, sometimes wounded with instruments and sometimes branded. Bloodletting and the smearing of human blood produced excitement. There were obvious dangers of serious personal injury and blood infection.”

We can now see that if our actions fall within one of the exceptions to the general rule that consent cannot be a defence and that we have a good reason for inflicting the injury that does not run contrary to the public interest, we are more or less free to inflict injury on other people. At last we can return to Dr Evil and his emporium of body modification.

We know from Wilson that tattooing and branding are perfectly lawful so why did Mr McCarthy get into trouble? This case originally came to court in 2017 where defence counsel sought to argue that Mr McCarthy could rely on the consent of his customers in his defence; however, the judge hearing the case held that he could not. Mr McCarthy took his case to the Court of Appeal, presumably as an interlocutory appeal against the judge’s ruling. The Court of Appeal held that this case was more aligned with Brown than Wilson and that Dr Evil could not rely on consent. They said that while there are existing exceptions that do allow a defendant to rely on consent, those exceptions should not be extended on a case-by-case basis, “save where there was a close analogy with an existing exception to that rule”. They went on to say that in this case the actions of the defendant went far beyond tattooing or piercing to the extent that he could not rely on the tattooing exception. They said,

“… there was no proper analogy between body modification, which involved the removal or mutilation of parts of the body, and tattooing, body piercing or other body adornment; that, rather, the body modifications carried out by the defendant amounted to medical procedures performed for no medical reason by someone who was not qualified to perform them; that, therefore, there was no good reason why body modification should be placed in a special category of exemption from the general rule; and that, accordingly, consent provided no defence to the charges”.

There we have it, in Dr Evil’s case, the Court of Appeal felt that Mr McCarthy had gone beyond mere piercing and had moved into the realm of surgery, for which he was not remotely qualified.

There is, to my mind, a strong argument for re-writing the law in this area. Clearly body modification is something that people want and there is no real reason they should not have it. These procedures are not nearly so invasive as breast enlargement or reduction and they offer no danger to anybody but the person requesting it be done. It is though more invasive than mere piercing so why not legislate for mandatory training for those wishing to provide this service and allow local authorities to regulate providers? It was, after all, an investigation by the local authority that led to these charges so they are already looking at these providers.