Thu, 14 Feb 2019
Jonas Hankin QC, of No5 Barristers’ Chambers, acted for the prosecution in a body modification case in which the practitioner admitted three counts of grievous bodily harm after unsuccessfully claiming the consent of his customers gave him a lawful defence.
Brendan McCarthy, who ran Dr Evil's Body Modification Emporium in Wolverhampton, carried out consensual procedures without using anaesthetic, specifically the removal of a customer’s ear, the division of a customer’s tongue to create a forked tongue and the removal of a customer’s nipple.
McCarthy was arrested in December 2015 following a complaint to City of Wolverhampton Council's environmental health team. He first appeared at Wolverhampton Crown Court in 2017, when he denied six counts relating to three procedures.
A petition with more than 13,000 signatures was gathered in his support and his lawyer challenged the charges on the basis that his customers consented.
However, the 50-year-old changed his pleas to guilty of grievous bodily harm with intent to do grievous bodily harm, after an unsuccessful two-year legal battle. He had argued that the procedures should be regarded as lawful to protect the "personal autonomy" of his customers.
At any early stage in the proceedings, the question arose as to whether consent could provide a defence to the counts on the indictment. At a preparatory hearing on September 29, 2017, Judge Amjad Nawaz determined that consent could provide no defence. His ruling was made under Section 31(3) of the Criminal Procedure and Investigations Act 1996.
An appeal was brought pursuant to Section 35(1) of the 1996 Act with leave of Judge Nawaz. That Appeal was heard on February 21, 2018, in the Court of Appeal Criminal Division (CACD). An approved judgment, dismissing the appeal, was handed down on March 22, 2018. The judgment of the court was given by the Lord Chief Justice, Lord Burnett of Maldon, and is reported as BM  EWCA Crim 560;  WLR (D) 187.
A 12-page ruling said the procedures were not comparable to tattoos and piercings.
Jonas Hankin QC was instructed to represent the Crown in the CACD by West Midlands CPS and was retained thereafter to continue to represent the prosecution in proceedings in the Crown Court.
Although consensual, the Crown Prosecution Service (CPS) said these were "significant surgical procedures" but McCarthy had no medical qualifications, nor was he registered with the General Medical Council (GMC).
West Midlands Police said McCarthy conducted the procedures without knowing his clients' medical histories or psychiatric backgrounds. He also did not have any life-saving equipment if the surgeries went wrong.
McCarthy has been bailed ahead of sentencing on March 21 at Wolverhampton Crown Court.
To read more about the case, visit https://www.bbc.co.uk/news/uk-england-birmingham-47198786