R v McCarthy [2019]: How Body Modification Made Us Rethink Our Need to Modify the Law

AuthorIona Murfitt
PositionSecond year law student from the University of Glasgow
Pages239-251
© 2020 Iona Murfitt and Dublin University Law Society
R V MCCARTHY [2019]: HOW BODY
MODIFICATION MADE US RETHINK OUR NEED TO
MODIFY THE LAW
IONA MURFITT*
Introduction
R v McCarthy considers whether the consent of the victims of offences
causing grievous bodily harm (GBH) with intent is relevant to sentencing
and, if so, to what extent.
1
The case brings elements of previous case
outcomes into consideration,
2
and it becomes evident that even where a
victim has granted consent, there are still different social factors which
can affect a decision. McCarthy is valuable as it provides an up to date
account of the approach taken by the courts to situations where people
consent to the criminal infliction of GBH.
Furthermore, the appellant’s prosecution is also the first for the
performance of body modification procedures.
3
These procedures concern
modifying individuals through surgery, for aesthetic purposes, and may
involve the removal or mutilation of a body part. The case questions
whether such procedures deserve a separate category of exemption from
the general rule, that the consent of an individual to injury provides no
defence to the person who inflicts the injury where it causes GBH. This
case note will explore how the outcome of McCarthy highlights a gap in
the law one that has become evident as a result of the increasing
significance of personal autonomy in contemporary society. It will
consider the need for greater regulation of body modification, and the
possible implications of failing to steer a middle course in relation to such
procedures. This note will further look into the conservative approach that
courts often take, noting their reliance on normative standards established
in the common law, and consider alternative approaches to what courts
would consider more acceptable forms of body modification such as plastic
surgery, which can also have a number of risks.
* Iona Murfitt is a second year law student from the University of Glasgow.
1
R. v McCarthy (Brendan Patrick) [2019] EWCA Crim 2 202.
2
R v Brown [1993] 2 All ER 75, R v Wilson Crim LR 473.
3
R v McCarthy (n 1) [14] (Lord Burnett).

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