R v BM: Errors in the Judicial Interpretation of Body Modification

摘要

R v BM is the latest case to consider the exceptions to the Offences Against the Person Act 1861 (OAPA). The exceptions allow an action causing injury that would be a criminal offence to become lawful if the person injured consents to the action. The consequences of this judgment is that body modifications are categorised as medical procedures (and therefore subject to the medical exception only) and new exceptions should not be developed on a case by case basis, instead allocating development of the exceptions to Parliament. Two implications follow from the BM judgment. First, it provided a limited definition of body modifications which are now categorised as medical procedures. Secondly, their Lordships have restricted further development of the lawful exceptions to offences against the person. This is a lost opportunity for developing the common law exceptions to the OAPA through an autonomy-based liberal judicial interpretation.