This week’s edition considers one judgment of the Court of Appeal. In R. v McCarthy (Brendan Patrick) the Court considered an appeal against a sentence imposed following the appellant’s plea of guilty to three offences of causing GBH with intent.
This case concerned an appeal against a sentence imposed following the appellant’s plea of guilty to three offences of causing GBH with intent.
M, aged 50 and of previous good character, carried on a body modification business involving unregulated surgical procedures. He had attended some courses but had no medical qualifications. The sample offences with which he was charged were the complete removal of a customer’s ear (Count 1), the splitting of a customer’s tongue with a scalpel (Count 2) and the removal of a male customer’s nipple (Count 3). All the procedures were carried out without anaesthetic. In each case, the customer signed a consent form.
M brought an interlocutory appeal against a ruling that the customers’ consent provided no defence to the charges. The court held that there was no reason why body modification should be placed in a special category of exemption from the general rule that an individual’s consent to injury provided no defence to the person who inflicted it if the conduct caused actual bodily harm. After that hearing, M pleaded guilty. The pre-sentence report indicated that M had mistakenly believed he was not committing any offence in carrying out the procedures, had accepted his error, given up his business and was deeply remorseful. The judge concluded that each injury was serious in the context of the offence charged but proceeded on the basis of lower culpability, notwithstanding the use of a knife. That was because the use of a knife, which would normally denote higher culpability, was inbuilt in the type of activity relied upon by the prosecution. In arriving at the sentence, he took five years’ imprisonment as the notional sentence that would have been imposed after a trial and allowed a one-third deduction for the guilty pleas.
The Appeal was dismissed.
Seriousness
The judge was correct to conclude that the injuries were “serious in the context” of offences of causing grievous bodily harm with intent in relation to Counts 1 and 2, but he was not entitled to reach that conclusion in relation to Count 3 (see para.45 of judgment).
Consent
The relevant sentencing guideline made no reference to the victim’s consent as a factor to which weight should be attributed. In concluding that such consent should not provide a defence, the court at the interlocutory hearing took into account (i) the general interest in limiting the approbation of the law for significant violence, albeit inflicted with consent; (ii) the need to protect from themselves those who had consented and who might be vulnerable or mentally ill; (iii) the risk that serious injury, even consented to, brought a further risk of unwanted injury or disease; (iv) the fact that M had undertaken for reward medical procedures performed for no medical reason; (v) the professional and regulatory structure governing the practice of medical professionals for the protection of the public; (vi) the absence of standard protections provided to patients by reputable medical professionals, including not removing body parts simply at the patient’s request; (vii) the protection of the public extending beyond the risks of infection or poor surgery to the protection of those seeking body modification who might be vulnerable or suffering from mental illness; and (viii) the fact that the customers’ personal autonomy did not justify removing body modification from the ambit of the law of assault. Those considerations led to the conclusion that the infliction of consensual serious injury was not to be overlooked for sentencing purposes in cases where consent did not afford a defence (paras 46-50).
Harm and culpability
Sentencing exercises imported considerations of harm and culpability. The concept of “harm” was concerned with factors extending beyond the objective seriousness of the injury itself, for example by looking at the victim’s vulnerability. Many of the inevitable consequences of an injury would be obvious or explained by other evidence. However, the impact of the same physical injury could be very different depending on the victim in question. A serious injury which had been received freely following consent might import fewer adverse consequences than those usually associated with an injury of the same sort. In such a case, “harm” might fall to be assessed in a different way from that usually associated with sentencing serious assaults. Culpability was more obviously affected by genuine consent. An attack resulting in serious injury was more culpable than the infliction of the same injury with the victim’s genuine consent. In a case of the instant sort it might be expected that there would be some investigation into the victim’s vulnerability and the real nature of the consent given. Although the category of “harm” might be reduced, it was more likely that real consent would affect the evaluation of culpability and lead to a reduction in sentence (paras 51-56).
Deterrence
It was clearly appropriate that M’s sentence contained a deterrent element. In view of the sentence imposed, it could not be argued that too great an emphasis was placed on the need for deterrence (para.58).
Conclusion
The judge had correctly categorised the harm as “greater harm” for the purposes of the Guideline as regards Counts 1 and 2. His approach to categorising culpability as “lower culpablity” took into account the agreed position that each victim had consented to the assault upon them. There was no reason why the fact of consent should have led to his starting in a different category. The judge’s error in categorising Count 3 as “serious” did not affect the outcome of the appeal. The starting point of five years’ imprisonment reflected the judge’s overall view of where the offending rested in the sentencing hierarchy for causing grievous bodily harm with intent, and was not manifestly excessive (paras 45, 59).
In a resolution amending the Rome Statute of the International Criminal Court art.8, the International Criminal Court’s Assembly of State Parties has made the deliberate starvation of civilians during an armed civil conflict a war crime.
The full piece can be read here.
Russian national Maksim Yakubets has been indicted in the US following unprecedented collaboration between the National Crime Agency, the FBI and the National Cyber Security Centre. Yakubets, who runs Evil Corp – the world’s most harmful cyber crime group, is now subject to the largest ever reward offered for this type of offender of $5 million (£3.8 million).
The full piece can be read here.
A 55-year old woman and her husband are facing up to five years in prison for growing cannabis plants to alleviate the symptoms of her multiple sclerosis (MS) after the Crown Prosecution Service (CPS) chose to proceed with a case against them. Medical cannabis has been legal in the UK for more than a year but only under strict conditions. The National Multiple Sclerosis Society stated that one in five people with the condition uses cannabis to alleviate symptoms.
The full piece can be read here.
A European Union Agency for Fundamental Rights report looks at the following core aspects of detention conditions in Member States: the size of cells; the amount of time detainees can spend outside of these cells, including outdoors; sanitary conditions; access to healthcare; and whether detainees are protected from violence. It summarises the minimum standards at international and European levels and considers how these standards are translated into national laws and other rules of the Member States.
The full piece can be read here.
