Assault and domestic abuse

Question 1

What is the actus reus of assault?

Answer 1

Every attack upon the person of another is assault, whether it injure or not.
- Smart v HMA 1975 JC 30.

Question 2

What is the mens rea of assault?

Answer 2

A crime of intention - cannot be reckless.
Evil intention [is] of the essence of assault.
- Smart v HMA 1975 JC 30.
Intent to injure? Or to cause pain?
- McDonald v HMA 2004 SCCR 161.

Question 3

What is the general authority for transferred intention?

Answer 3

Connor v Jesse 1988 SCCR 624.

Question 4

Aggravations of assault.

Answer 4

• The use of a weapon.
• Where severe injury is caused.
• Where there is risk to life.
• Where the assault is committed in the victim’s home.
• Assault with intent to commit a further crime.

Question 5

Statutory aggravation.

Answer 5

Aggravation by racial hatred.
- Crime and Disorder Act 1998 s(96).
Religious hatred.
- Criminal Justice (Scotland) Act 2003 s(74).
Disability, etc.
- Offences, Aggravation by Prejudice (Scotland) Act 2009.
ALL CONSOLIDATED IN Hate Crime and Public Order (Scotland) Act 2021.

Question 6

Special defences to assault.

Answer 6

Consent.
- An individual cannot consent to assault or any other non-sexual offence.
- Smart vs HMA 1975.
- R v Brown.
Reasonable restraint.
- Police etc. may be able to use this defence.
- Marchbank v Annon 1986.

Question 7

What is the authority for domestic abuse?

Answer 7

Domestic Abuse (Scotland) Act 2018.

Question 8

What is the actus reus for domestic abuse?

Answer 8

A course of behaviour which is abusing or threatening to a partner or ex-partner.
Not limited to physical harm.

Question 9

What is the mens rea of assault?

Answer 9

Intent or recklessness.