Assault Flashcards
what is the definition of an assault
- ‘an attack upon another with the intention of injuring that person OR producing the fear of immediate injury in that person’s mind’
- must be a personal attack
Actus Reus of Assault
- Deliberate attack on another, usually a hostile act
- Every attack upon another person is an assault, whether it injures or not
what is the usual result of an assault and what attack may it be
- usual result is bodily harm
- may be a direct or indirect attack
what was confirmed in Hynd v McGlennan 2000
spitting in someone’s face is an assault
what may constitute as an assault
fear of injury
case facts of Gilmour v McGlennan 1993
- Deliberate act on the part of the appellant in presenting the toy gun
- His actions included threatening gestures which produced fear and alarm in the complainer
- If a weapon/ firearm is pointed at another that is an assault, even if the accused knows he can’t cause harm with it
what is a critical factor when determining assault
the intention to injure
case facts of Kay v Allan 1978
- Assault by setting a dog on 2 children
- Assault is constituted by establishing the intention to use the dog to frighten a person
- To be guilty, the accused had to cause the dog in some way to move at the alleged victim with the intention that the dog, in so moving, would at least frighten the victim
what must happen if injury is caused by the assault
there must be a direct causal link between injury and assault
case facts of Dennie v HMA 2018
- Evidence established the accused had attacked the complainer
- Accused challenged the conviction on basis that injuries sustained by the complainer were not the direct result of the assault
- Rejected on appeal
- Injuries sustained were a direct consequence of the assault – clear link
- The evidence was clear, injuries were sustained while the complainer was being assaulted and were a direct consequence of the assault
case facts of Mackenzie v HMA 1983 (Assault or accident)
- Accused convicted of one charge of assault and one of culpable homicide
- Conviction overturned on appeal
- Court assessed the circumstantial evidence
- The accused didn’t intentionally strike the victim with the knife – it was an accident
- No criminal responsibility for an accident
examples of how aggravation may make the crime more serious
- Use of weapon
- To severe injury
- To the danger of life
- Domestic abuse
how may courts infer intention to injure
from the actions of the accused
case facts of Kerr v HMA 1986
- Medical evidence suggested victim’s life had not been put at risk
- ‘danger to life’ can be inferred from the actions of the assault
what does the mens rea require
some demonstration of ‘evil intent’
what are the two forms of demonstration of evil intent in the mens rea
- Intention of injuring that person
- Or producing the fear of immediate injury in that person’s mind
what was held in Smart v HMA 1975 in regards to evil intent
evil intent means intent to injure and do bodily harm
case facts of Lord Advocate’s Refrenece (No.2 of 1992) 1993
- Charge of robbery, theft with assault
- Evil intention is the core of assault
- Assault can’t be committed accidentally, recklessly or negligently
‘evil’ element will emphasise the ‘intent’ and distinguish it from an accident, recklessness and negligence - Not necessary to look for evil in the mens rea, merely evil intent
what are some examples of distinguishing assault from other actions (force being used with no evil intent)
- sports
- police arresting suspects
case for intent may be transferred and facts
- Connor v Jessop
- Glass thrown missed the intended victim but hit someone else
Accused had an intention to injure even though it was not directed at victim - Mens rea for assault transferred to the 3rd party
what are the potential defences to a charge of assault
- consent
- reasonable restraint
briefly explain the defence of consent
- isn’t regularly a justifiable assault
- Consent may be relevant in some circumstances – each case should be decided on its own facts
case examples of the defence of consent
- R v Brown 1994
- Smart v HMA 1975
case facts for R v Brown 1994
consent to assault was no defence, at ECHR it was held there was no violation of Art 8, state is allowed to makes decision on matters which cause physical harm
briefly explain the defence of Reasonable restraint
- May be available to the police
- Must be reasonable, if not, it will constitute as assault
- Must establish the necessary mens rea for assault
case facts of Marchbank v Annan 1987 (reasonable restraint)
- Police officer went beyond the limits of force that were acceptable in arrest
- Guilty of assault
in which case did the defence of reasonable restraint satisfy + facts
- Wightman v Lees 1999
- Common sense had to apply
- Restraint to effect a citizen’s arrest was justifiable
- Self-defence
case for offence of Indecent Assault + facts
- Hussain v Houston 1995
- Accused was convicted of indecent assault during medical examinations
Appealed using the defence there was consent - Held no consent had been given to the nature of the examination carried out
