Assault and Reckless Conduct

Question 1

Frame v Kennedy

Answer 1

Reasonable excuse defence
Stripper caught carrying 2 police batons.
Entitled to reasonable excuse defence as they were props for his act.
If someone is injured with one of the items, assault would be the appropriate charge.

Question 2

‘Attack’ in Scotland

Answer 2

In Scotland, attack includes both indirectly causing injury, and acts that create a fear of injury.
For the crime to be committed:
• No need for direct use of violence
• No need for injury

Question 3

David Keay

Answer 3

Indirect attack
– Whipping a pony so that rider thrown off
Victim was a young child who was riding a horse. The accused whipped the horse, causing it to react violently. Child fell off the horse and was stamped on.
Accused was charged with assault. Tried to argue that there was no direct assault here, therefore should not be convicted.
HELD: the charge was relevant. There was still clearly an attack, even if it had taken an indirect course.

Question 4

James Cairns

Answer 4

Spitting

Question 5

Charles Sweenie

Answer 5

Cutting off a sleeping woman’s hair

Question 6

Kay v Allan

Answer 6

Indirect attack
Setting an animal on a person
Not necessary they should be hurt, it is enough for the animal to frighten the victim
Involved 2 kids who trespassed on the accused’s property. Accused set his dog on the children, one of them was bitten.
The accused was charged with assault. Appealed, but on appeal the conviction was upheld. Just because there was no direct attack, there was still an assault.

Question 7

Atkinson v HMA

Answer 7

That they had jumped over the counter, and threatened the cashier with a knife, holding it against their throat.
Jury convicted one of the accused in the terms set out but the charge, but couldn’t find this against the other accused- Atkinson. Atkinson was still charged by deletion of references to the knife.
Atkinson appealed against this conviction on the basis that once the reference to the knife had been deleted, that what was left in the charge did not constitute assault – i.e. he had only jumped over the counter. On appeal the court disagreed with this. Found that the simple fact that he had performed a threatening action, causing the cashier to experience fear and alarm, was enough.

Question 8

Gilmour v McGlennan

Answer 8

Two people knew one another from school. Accused was in a car and called the victim over to him. Accused had a toy gun and threatened the victim.
Victim ran away from the car, and was found to have been distressed by the incident.
Accused tried to defend his actions on the basis that it was a practical joke – any reasonable person would not have been alarmed.
HELD: Accused was still convicted of assault. There was a deliberate threatening gesture made.

Question 9

Charles Costello

Answer 9

A separate, innominate offence was significantly charged (and upheld) where the accused had sent the victim a box of gunpowder, so ordered as to explode in his face when the package was delivered and opened.

Question 10

Smith v Paton

Answer 10

The accused was charged with attempted assault, in that he had sent his victim a postal packet so designed that concealed razor blades would lacerate the fingers of anyone opening it.
He pled guilty however, hence no matter of principle was discussed.

Question 11

Smart v HMA

Answer 11

Involved 2 people who had a disagreement ad they agreed to settle their disagreement by means of a “square go” i.e. fair fight without weapons.
Accused was charged with assault. Tried to argue that there was mutual consent on the part of both parties and that should excuse him from assaulting the victim. Accused sought to say that this was the same kind of case as a boxing match etc and there should not be liability.
Sheriff disagreed with this – consent was no defence for assault. If the jury was satisfied that there was assault, the accused could be convicted.
Appealed – argued that he Sheriff was wrong to direct the jury that consent was not a defence.
HELD: consent was not a defence to assault. The essential ingredients for an assault are attack, and evil intent. Consent does not override this. So long as there is an intention to do something that amounts to an attack, this amounted to an evil intent.
Boxing matches etc were distinguished because these activities do not have any unlawful intention. By boxing you are not intending to do anything untoward. This is to be contrasted with an unregulated fight where there is an intention to cause injury .

Question 12

Lord Advocate’s Reference (No. 2 of 1992)

Answer 12

Similar on facts to Gilmour case.
Someone pointed a toy gun at another person.
At some point the accused realised that there were other people in the shop, and ran out. The accused turned himself into the police at this stage, and tried to defend his actions on the basis of a practical joke – he wouldn’t have taken the money, therefore there was no evil intent for assault.
HELD: Motive was confused with intention. The motive might have been to do a practical joke, but this involved an intent to cause fear or alarm.

Question 13

Reasonable Chastisement defence

Answer 13

This defence is governed by the *Criminal Justice (Scotland) Act 2003, s. 51. This section sets out a number of considerations to which courts should have regard in determining whether chastisement is reasonable. Note that conduct involving any of the following is regarded as per se unreasonable (s. 51(3)):

• Blows to the head
• Shaking
• Use of an implement

This defence is no longer available to schoolteachers: Standards in Scotland’s Schools etc. Act 2000, s. 16.

Question 14

Smart v HMA

Answer 14

Agreed square go – fight where there is no interference by anyone else.
Appellant argued that because the other man had consented to the fight, this was a defence.
Smart suggests that consent is generally not a valid defence to assault.

Question 15

Stewart v Nisbet

Answer 15

He claimed horseplay in which she had consented.
He argued he had a defence because he honestly believed she had consented.
Court said this wasn’t a defence.
If consent isn’t a defence generally, an honest belief in consent will not be enough.

Question 16

R v Brown

Answer 16

The ‘victim’ of the assault positively wants to be ‘injured’
Involved a group of people engaging in S&M activities.
There were potentially very serious injuries arising from the conduct.
HOL asked whether consent ought to be a defence to injuring someone in these circumstances.
HELD: consent is only a defence where there is some public interest in allowing consent to be effective – the accused would have to show that allowing consent to be effective would have some public benefit.
Courts took the view that S&M cases do not fall within this category.

Accused challenged this on the basis of Art 8 of the ECHR (respect for private and family life). ECHR ruled that this approach taken in R v Brown was compatible with the ECHR.
The approach taken in R v Brown was accepted by the EU.

Important to remember that R v Brown is an English case, leaving Scottish authority open to interpretation in this area.

Question 17

4 categories of non-intentional injury/reckless injury and endangerment

Answer 17

• Culpable and reckless endangering of the lieges
• Culpable and reckless discharge of firearms
• Culpable and reckless injury
• Culpable and reckless supply of harmful substances

Question 18

MacPhail v Clark

Answer 18

Culpable and reckless endangering of the lieges
Accused set fire to stubble in the field creating smoke which created visibility issues for drivers on a nearby road, and crashes occurred. Charge of recklessly endangering the safety and lives of road users. Accused had demonstrated reckless indifference to the consequences of his actions.

Question 19

Normand v Robinson

Answer 19

Culpable and reckless endangering of the lieges
2 accused had organized and promoted a rave in a derelict warehouse. Safety concerns about the warehouse. No electricity or lights, no emergency provisions, no running water. Completely unfit. Accused charged with recklessly endangering the safety and lives of those who attended the rave. Argued that the allegations against them didn’t disclose the level of danger required to make the crime one of ___. Court disagreed. Conduct was dangerous enough. Sufficiently dangerous for the requisite mens rea. Court held charge was relevant.

Question 20

Robertson v Klos

Answer 20

Culpable and reckless endangering of the lieges
accused had been driving 156 mph on a 70 road. Driving with one hand with a mobile phone. Prosecution tried to argue guilty of culpable and reckless conduct. Sheriff said, in the absence of any presence of other road users, he could not be convicted of this. On appeal, high court said it would be easier to prove if there was other people on the road, but it wasn’t always necessary. Because he was going so fast in the morning, it was forseeable that there would be other traffic, so he was guilty.

Question 21

Normand v Morrison

Answer 21

Sharps cases
had been told her bag was about to be searched. Asked if bag contained sharp objects. Said no even though it contained an unprotected needle. Charged with culpably and recklessly denying that there was an unprotected needle in the bag etc etc… thereby allowing officer to be exposed to risk of infection. Relevancy of the charge questioned at trial. Sheriff held it was relevant. Created questions of whether omissions liability was being created.

Question 22

Kimmins v Normand

Answer 22

Sharps cases
Denied possession of such instruments.
Police officer was injured and exposed to risk of infection by putting his hands in his pockets.

Question 23

Donaldson v Normand

Answer 23

Sharps cases
Difference in this case was that the accused, when asked about sharp objects, did find a number of guarded syringes in his pocket. He took these out.
There was one remaining syringe in his shoe that he did not disclose to the officer. When asked why he didn’t disclose this, he argued that he was high and forgot.
Was charged with reckless conduct.
Tried to defend this on the basis that he had merely forgotten – there was no disregard for the possible safety of the officer, he had simply forgotten about its existence. Court rejected this argument on appeal.
This was enough to constitute reckless conduct. The accused should not be able to rely on the defence of intoxication to evade liability.

Question 24

Mallin v Clark

Answer 24

Sharps cases
Contained a slight qualification to this.
Difference was that rather than denying that he had any sharp objects on him, the accused responded saying that he didn’t know.
The officer searched the accused and found an unguarded syringe.
Charge raised of culpable and reckless conduct.
On appeal, the court held that what the prosecution had alleged was not enough to constitute reckless conduct. He did not actively deny having sharp objects on him, but had failed to disclose.
The general principle in criminal law is that there is no crime by omission – the only way that this can happen is if you have a positive duty to act. It had to be proved by the prosecution that such a duty existed. They had failed to do so, hence this was not a competent charge.
This is not to say that such a duty cannot be established, but this was not done in this case.
Limits the test for culpable and reckless conduct.

Question 25

Gizzi v Tudhope

Answer 25

Culpable and reckless discharge of firearms
Appellants given permission to set up a clay pigeon shoot.
Line of trees obscured the view beyond them.
Didn’t know there was men working on the other side.
Man injured and vehicle damaged by the shot.
Convicted.
Appealed on the basis that their conduct had not been sufficiently reckless for them to be guilty of the offence.
Had been given permission and didn’t know there was anyone else there.
Common law test of recklessness.

Question 26

Cameron v Maguire

Answer 26

Culpable and reckless discharge of firearms
Person was firing a gun near where people lived and might have been working.
Accused was testing his new rifle, and was firing at a target situated on a bank of earth at the back of his house.
Allegation that this was reckless – there was a path nearby, and had he missed the target, he could have hit someone.
HELD: prosecution do need to prove the common law sense of recklessness of an attitude of disregard for the consequences. Seemed to overturn the aforementioned approach of Gizzi.

Question 27

HMA v Harris

Answer 27

Culpable and reckless injury
In the past a charge of reckless conduct had to allege endangerment of the lieges
View overridden in Harris
Accused was a bouncer at a nightclub.
Bouncer had thrown a customer out of the club, down the stairs and onto the road. The customer had been hit by a car on lying on the road.
There was also an alternative charge of reckless injury. Prosecution said that the primary charge was assault, but if the court could not find on this on a lack of intention, then they raised an alternative claim of culpable and reckless injury.
Accused objected to this alternative charge – argued that there was no offence of culpable and reckless injury. This charge wasn’t relevant in the context of endangerment of the lieges.
5 judge bench convened to consider the issue.
HELD that it’s criminal either to recklessly endanger a person, or recklessly cause injury. These could exist as separate charges.

Question 28

HMA v Kelly

Answer 28

Allegation was an injury by transmitting HIV.
Accused was alleged to have recklessly injured the victim.
This case says something about the types of injury that will suffice – it’s not just physical injury, the reckless transfer of HIV can be enough.

Question 29

Khaliq v HMA

Answer 29

Culpable and reckless supply of harmful substances
Shop keepers had supplied glue sniffing kits to children.
On the basis of supply, the accused were charged with culpable and reckless conduct, endangering the health and safety of the children.
Appealed against this on numerous grounds:
i). glue is not a controlled drug
ii). some of the things used to sniff the drugs were not prohibited e.g. empty crisp packets
iii). It required an intervening act of sniffing the glue – they argued that this was enough to break the chain of causation.
HELD: on appeal, the high court rejected those arguments. Supply in these kinds of cases should be deemed to be equivalent to administration. The accused knew full well the reasons for the supply of these things. This was enough to constitute a conviction.

Question 30

Ulhaq v HMA

Answer 30

Culpable and reckless supply of harmful substances
Upheld Khaliq principle.
The victims were not children, but adults.
Accused tried to distinguish this from Khaliq – this involved children hence they could not be held to break the chain of causation, but fully consenting adults will full capacity should be enough to held to be a novus actus interveniens.
HELD: High court reaffirmed the principle in Khaliq.
It’s enough for the accused to know the reason for the supply of the harmful substances.

Question 31

Borwick v Urquhart

Answer 31

Mainly about breach of the peace but also concerned reckless supply of alcohol.
A man was hosting a party and was accused of supplying alcohol to underagers who were drunk to the point of being comatose.
The accused would have known that the underagers would have abused the alcohol, this case fell within the principles established in Khaliq and Ulhaq.
Although they were underagers, following the principle in Ulhaq, it wouldn’t have made a difference if they were adults.

Question 32

HMA v Harris

Answer 32

Culpable and reckless injury
In the past a charge of reckless conduct had to allege endangerment of the lieges
View overridden in Harris
Accused was a bouncer at a nightclub.
Bouncer had thrown a customer out of the club, down the stairs and onto the road. The customer had been hit by a car on lying on the road.
There was also an alternative charge of reckless injury. Prosecution said that the primary charge was assault, but if the court could not find on this on a lack of intention, then they raised an alternative claim of culpable and reckless injury.
Accused objected to this alternative charge – argued that there was no offence of culpable and reckless injury. This charge wasn’t relevant in the context of endangerment of the lieges.
5 judge bench convened to consider the issue.
HELD that it’s criminal either to recklessly endanger a person, or recklessly cause injury. These could exist as separate charges.

Question 33

HMA v Kelly

Answer 33

Allegation was an injury by transmitting HIV.
Accused was alleged to have recklessly injured the victim.
This case says something about the types of injury that will suffice – it’s not just physical injury, the reckless transfer of HIV can be enough.

Question 34

Khaliq v HMA

Answer 34

Culpable and reckless supply of harmful substances
Shop keepers had supplied glue sniffing kits to children.
On the basis of supply, the accused were charged with culpable and reckless conduct, endangering the health and safety of the children.
Appealed against this on numerous grounds:
i). glue is not a controlled drug
ii). some of the things used to sniff the drugs were not prohibited e.g. empty crisp packets
iii). It required an intervening act of sniffing the glue – they argued that this was enough to break the chain of causation.
HELD: on appeal, the high court rejected those arguments. Supply in these kinds of cases should be deemed to be equivalent to administration. The accused knew full well the reasons for the supply of these things. This was enough to constitute a conviction.

Question 35

Ulhaq v HMA

Answer 35

Culpable and reckless supply of harmful substances
Upheld Khaliq principle.
The victims were not children, but adults.
Accused tried to distinguish this from Khaliq – this involved children hence they could not be held to break the chain of causation, but fully consenting adults will full capacity should be enough to held to be a novus actus interveniens.
HELD: High court reaffirmed the principle in Khaliq.
It’s enough for the accused to know the reason for the supply of the harmful substances.

Question 36

Borwick v Urquhart

Answer 36

Mainly about breach of the peace but also concerned reckless supply of alcohol.
A man was hosting a party and was accused of supplying alcohol to underagers who were drunk to the point of being comatose.
The accused would have known that the underagers would have abused the alcohol, this case fell within the principles established in Khaliq and Ulhaq.
Although they were underagers, following the principle in Ulhaq, it wouldn’t have made a difference if they were adults.