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

• Author: Iona Murfitt
• Position: Second year law student from the University of Glasgow
• Pages: 239-251

© 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).