MANY generations of law students have listened to lecturers trying to explain why it has been (legally) acceptable to brand your wife’s bottom (Wilson [1997] Q.B. 47), but not to put a fish-hook through your close friend’s penis (Brown [1994] 1 A.C. 212, at 238). The case of R. v Hobday [2025] EWCA Crim 46, [2025] 2 Cr. App. R. 11 could have taken us closer to rectifying this awkward conundrum than it did.

In Hobday, the victim (aged 17) approached the defendant for drugs and they then had a casual sexual encounter. She used a Stanley knife to begin to carve the initial of the defendant’s first name (“M”) on her buttock. She asked him to complete it, which he did, and then to make it bleed, which he declined. The victim made no complaint. The defendant was charged with an offence under section 47 of the Offences Against the Person Act 1861. The trial judge distinguished Wilson and declined to direct the jury that consent provided a defence. The Court of Appeal endorsed this approach and upheld the conviction.

Since the seminal decision in Brown, harm at the level of actual bodily harm or higher cannot be consented to in law, unless it falls under an exception which amounts to a “good reason” in the public interest. The House of Lords concluded in Brown that the satisfaction of sadomasochistic desires by consenting adults in private was not such a reason and that there was a legitimate public policy aim preventing such conduct from forming an exception. However, the exceptions recognised in Brown are so diverse that no clear principle is discernible, ranging from major medical surgery (frequently involving high levels of “harm”) to organised rule-book sports (even where the rule book condones knocking your opponent unconscious).

The Court of Appeal’s judgment in Wilson, two years after Brown, did not seem significantly removed from Brown. In Wilson, the defendant branded his wife’s bottom with his initials at her instigation. However, it was held that this was an “exception” and could be consented to – as it was a “personal adornment – akin to a tattoo”. But the Court of Appeal’s reasoning was questionable. In trying to differentiate between similar activities, neither of any practical use at all, the court emphasised Wilson’s taking place in a context of heterosexual marriage, versus amongst homosexual associates. This appeared to create a precedent hinging entirely on moral sensitivities, as opposed to either legal interpretation or common sense.

More recently, in BM ([2018] EWCA Crim 560, [2018] 2 Cr.App.R. 1), the Court of Appeal held that for “extreme body modifications”, with no medical justification, consent could not provide a defence, upholding the trial judge’s preliminary ruling in relation to three offences of causing grievous bodily harm with intent. BM was registered with the local authority for tattooing and piercings, in line with the registration scheme in the Local Government (Miscellaneous Provisions) Act 1982. However, BM went far beyond those activities, removing the ear of EL, splitting the tongue of a second victim and removing the nipple of a third victim. EL had signed a consent form. All three victims had instigated, and were desirous of, the procedures.

BM had argued that these were adornments – a mere extension of tattooing and piercing, and within the personal autonomy of customers to choose, just as they may choose to participate in a boxing match or undergo elective aesthetic surgery; both of which are lawful, yet could entail harm at the level of grievous bodily harm. This prompted the Court of Appeal in BM to observe that one of the biggest challenges of applying the exceptions to the general rule in Brown is that these exceptions do not give rise to any easily-articulated principle by which novel situations may be judged. However, the court noted (at [40]) that there are two features which may be thought to underpin most recognised exceptions. The first feature is that the conduct produces some discernible social benefit (a category in which the court included sports, boxing and “dangerous exhibitions” as entertainment). The second feature underpinning recognised exceptions identified by the court was unreasonableness of the common law to criminalise the activity where there is consent (a category which included tattooing and piercing). The court concluded that new exceptions should not be recognised on a case-by-case basis, as such value judgments on activities were a policy issue.

In Hobday, the trial judge viewed the facts as closer to Brown than Wilson (at [15]). The Court of Appeal agreed, noting that the facts of Hobday were not a close analogy with an exception in Brown and therefore fell under the principle in BM, that no new exceptions should be recognised on a case-by-case basis, such that consent could not be a defence to the conduct. Finally, the court concluded that, had it not been bound by the earlier decisions, it would still have concluded that there was no public interest exception allowing for the victim to consent to the cutting of her skin (as a 17-year-old) with an unsterile Stanley knife, due to its closeness to self-harm, to which the young are particularly vulnerable (at [44]). The judgment concluded with a reminder that consent can be relevant, however, even where it is not a defence. It may either factor into the Crown Prosecution Service’s decision whether to charge, under the public interest limb of the Full Code Test (found within the Code for Crown Prosecutors, available at https://www.cps.gov.uk/publication/code-crown-prosecutors (last accessed 16 February 2026)) or, if proceedings are brought and a conviction results, be relevant to sentencing.

The judgment in Hobday appears unsatisfactory for a number of reasons. Addressing the argument that it is in the public interest to protect the young and vulnerable against self-harm, it is unclear how this is relevant to a criminal act of the cutting of the skin by another person, not the victim herself, even though she had commenced the cutting. Furthermore, does the court mean to suggest that, had the victim been older, its position might have been different? This itself would be contentious, with the attainment of the age of 16 entitling an individual to take many significant decisions, including to engage in sexual activities. Even younger individuals may take significant decisions in the medical context within the scope of Gillick competence. Perhaps the relevance of the victim’s age in Hobday lay, for the Court of Appeal, more with the age difference between victim and defendant, giving rise to a concern that the law should protect young people from the corrupting influences of older adults. Certainly, the age difference and the circumstances of their meeting (a casual sexual encounter) can be said to move the facts of Hobday away from Wilson and towards Brown.

It is also notable that the court endorsed BM; that there should no expanding of categories of activities to which consent was a defence, unless there was “a close analogy with an existing exception to the general rule established in Brown” and that this was to be preferred over the more expansive approach in Wilson. The decision in Hobday, therefore, has left difficult matters unresolved. Specifically, it remains unclear to what extent the criminal law protects the rights of individuals to make autonomous decisions, even where those decisions may be seen as unwise (such as cutting one’s skin for no clear purpose). There are clear differences between a procedure that is legal in a regulated environment (e.g. tattoo and piercing studios registered with a local authority) and that same activity, or one akin to it, carried out in a setting where there are no such health and safety safeguards. Such a registered setting also provides legal safeguards – in the event of negligent mishap, for example, the presence of insurance would mean that the injured party would be compensated and medical help may be more likely to be summoned. Where an individual makes cuts in the buttocks of another, at home with a Stanley knife blade, as in Hobday, not only is there a complete lack of regulatory oversight regarding training and sanitisation, but in the event of unexpected medical consequences, timely medical advice might not be sought. Where the injury was inflicted at the request or instigation of the victim, reluctance to seek medical help might also arise from a victim’s concerns that their sexual partner would become subject to criminal investigation – an effect of the current demarcation which appears to weaken the policy argument of the court to some extent.

It is also not anathema to criminal law to state that an activity that is lawful in one setting is not in another. For example, consensual sexual intercourse between two adults is legal in a private setting, but were they to conduct such an activity in a public place, it would be a criminal offence. Likewise, the possession of various items is lawful in private places, but not in public. There is no principled reason to be concerned solely by the fact that activities that are lawful in one setting, are not in another. The question must be, however, whether it is appropriate to criminalise an activity on a paternalistic basis or whether it should be considered within the scope of personal autonomy. This leads inexorably to the question of where the line should properly be drawn. I would suggest that in Hobday the court drew it too far towards paternalism, despite the victim’s age: the law allows 17-year-olds to drive motor vehicles, so it is incongruous that it does not permit them to have someone scratch their skin with a Stanley knife.