Assault (C)

Question 1

What are the three questions to ask in an assault case?

Answer 1

1. Did D’s conduct amount to assault?
2. Did D have the necessary state of mind?
3. Does D have a valid defence?

Question 2

What are the differences between a civil assault case compared to a criminal one?

Answer 2

• Balance of probabilities, not beyond reasonable doubt.
• No jury.
• No need for corroboration.
• Private initiation.
• No need to show evil intent.
• Consent may operate as a defence.

Question 3

What conduct amounts to assault?

Answer 3

Ewing v Earl of Mar (1851) 14 D 314.
- Riding a horse at (if placing P in danger and reasonable alarm).
- Spitting at but missing (parties were so near that it might have done so).
- Aiming a gun at (it is assault).
Must put P in a state of reasonable alarm as to their physical safety.

Question 4

What intention is necessary for D to be liable for assault?

Answer 4

Reid v Mitchell (1885) 12 R 1129.
- Lord Young at 1132.
- “Playfully and without any bad intention… I am of the opinion that is an assault”.
Must be a deliberate action to interfere. D may intend to injure, or be reckless as to these consequences.

Question 5

What are the potential defences to assault?

Answer 5

• Self-defence.
• Consent.
• Justification.
• Provocation.

Question 6

What questions need to be asked for self defence in an assault case?

Answer 6

1. Was D’s use of defensive force proportionate?
2. Was it in response to an imminent risk to D’s life?

Question 7

Self defence in assault: proportionality.

Answer 7

• Marco v Merren’s 1964 SLT (Sh Ct) 74.
• Lane v Holloway [1968] 1 QB 379.

Question 8

Self defence in assault: mistaking for an imminent risk.

Answer 8

Ashley v CC of Sussex Police [2008] 1 AC 962.
- Does the mistake need to be an honest one?
- Rejected by all judges.
- Does it only need to be reasonable?
- Lord Carswell approved unreservedly ([76]).
- Lord Roger ([54]) and Lord Neuberger ([89]-[90]) left this option open.

Question 9

Consent in assault: sports and games.

Answer 9

Reid v Mitchell (1885) 12 R 1129.
- “Takes on himself the risks incident to being a player, and he will have no remedy for any injury he may receive in the course of it, unless there has been some undue violence or unfair play.” - (1132, per Lord Young).

Question 10

Consent in assault: medical treatment.

Answer 10

Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63.
- “Aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” - (Lords Reed and Kerr, [87]).

Question 11

Justification in assault: police officers.

Answer 11

What makes it assault?
- Mason v Orr (1901) 4 F 220 (Lord M’Laren at 223).
1. Order which officer seeks to enforce must be unlawful or outside scope of duty.
2. Pursuer was willing to comply.
3. Force was manifestly in excess of the requirement.