Crim: w 5-6 - ASSAULT & RECKLESS CONDUCT Flashcards
What type of crime is assault? Is it necessary to prove causation?
A conduct crime - it is not necessary to prove causation
What is the actus reus for assault?
An attack
In addition to a direct infliction of violence, what other 2 things can constitute an ‘attack’ for assault?
- Indirectly causing injury
2. Threatening gestures
What case illustrates an indirect attack for assault?
Kay v Allan
* 2 boys trespassed into the accused’s garden
* he released dogs onto them, bit one of the boys
Held: indirect attack constitutes an attack for assault
Can threatening gestures constitute an attack for assault? (case)
Yes
Gilmour v Atkinson
* Accused beckoned victim over to car and brandished toy gun ‘money or your life’
* Said it was a joke
Held: threatening gestures (even if a toy) could amount to an attack for assault.
What happened in Atkinson v HM Adv?
Atkinson v HM Adv
* two men robbed a petrol station, 1 brandished a knife the other didn’t - but jumped over counter.
held:causing fear and alarm could be an assault (even without a knife)
What is the mens rea for assault?
Evil intent
What case defines the modern position on evil intent for assault?
What happened?
Smart v HM Adv
* mutually agreed fight
Held: consent is never a defence to assault.
Intention to do something that amounts to an unlawful attack = sufficient mens rea for assault.
What did LA Ref ( no.2 of 1992) state was wrong about the original trial judge’s recommendations?
LA Ref (no.2 of 1992)
- accused threatened shop assistant with toy gun and demanded money.
- Took himself to the police to state it was a joke.
- Trial judge wrongly directed the jury that if it was a joke, he should be acquitted.
Ref held: trial judge confused motive with intent. motive irrelevant.
Can you ever consent to assault in scots law?
No - consent is never a valid defence to assault (Smart)
In England when can you consent to assault and which case discussed this?
R v Brown
* Could consent to harm if in the public interest
Does corporal punishment of children (e.g. smacking) satisfy the definition of the offence of assault?
Yes, but parents/guardians may use the defence of ‘reasonable chastisement’
criminal justice (Scotland) act 2003, s 51
What conduct is deemed unreasonable re: corporal punishment?
s 51(3):
- blows to head
- shaking
- use of an instrument
What does the future look like for the defence of ‘reasonable chastisement’ for corporal punishment?
Almost certain to be abolished soon: Children (Equal Protection from Assault) (S) Bill ch 1
Is ‘reasonable chastisement’ available for teachers?
No
Standards in Scotland’s Schools etc. Act 2000 s.16
In the absence of ‘evil intent’ needed for assault, what other two offences might apply?
- Reckless endangerment
2. Reckless injury
What type of offence is covered by:
- reckless endangerment and
- reckless injury
- Endangerment: creation of danger for other
2. Injury: Non-intentional physical harm
Which statute provides that there is no requirement to provide the name of an offence in the indictment or complaint - it is enough to narrate the facts
Criminal Procedure (S) Act 1887
What was the issue with the indictment in HM Adv v Kelly?
HM Adv v Kelly
* Indictment did not make clear which of the things listed were significant re: HIV infection.
Is either Reckless Endangerment or Reckless Injury a result crime?
- Reckless endangerment: NOT result crime - putting someone in danger without necessarily causing harm.
- Reckless injury: Result crime - involves actually causing the injury (causation would need proving)
What happened in Normand v Robinson?
Normand v Robinson
- 2 co-accused organised a rave in a derelict warehouse
- Held: Charged with reckless endangerment, even before the event happened
all that needed to be established was conduct to which criminal indifference could be attributed.
What do the ‘sharps cases’ tell us about reckless endangerment?
Not much risk of danger is needed for reckless endangerment - even just risk to 1 person is enough.
If a police officer is injured by needle in search that you said wasn’t there = reckless endangerment
In which 2 cases did the accused deny they had a needle on them when searched by police officer?
Normand v Morrison (sheriff)
&
Kimmins v Normand
* reckless endangerment = even if risk just to 1 police officer.
What was different in Donaldson v Normand from the other sharps cases and what was held?
Donaldson v Normand
- Accused was voluntarily intoxicated
- did remove some syringes, but not all.
- claimed he forgot - was high
held: voluntary intoxication not a defence - for not having the required mens rea.
Why was the accused not liable in Mallin v Clark?
Mallin v Clark
- Accused said he did not know if he had sharp objects on him
held: conviction reckless endangerment quashed
Because this was an omission, prosecution would have to prove there was a positive duty to disclose the existence of the syringe to the officer.
What 2 particular offences are sometimes considered as a variety of reckless endangerment/injury?
- Discharge of firearms
2. Administration/supply of substances
What is the mens rea for recklessness?
indifference/disregard of the consequences
What is the mens rea for recklessness and which case defined it?
indifference/disregard of the consequences
Cameron v Maguire
List 3 cases about reckless discharge of firearms
Gizzi v Tudhope
- clay Pidgeon shoot in abandoned grounds
- shots hit men working behind trees
Cameron v Maguire
- man testing rifle in remote area near footpath
- reckless - even though it was a remote area: indifference/disregard for the consequences
Campbell v HM Adv
- Man trying to scare off trespassing teens
- reckless: there was no intention to harm
Which 2 cases show that one can be liable for culpable and reckless administration/supply of harmful (but legal) substances?
Khaliq (children) + Ulhaq (adults) - glue-sniffing kits
What did HM Adv v Harris establish?
HM Adv v Harris
- Bouncer threw victim downstairs (assault) - did not endanger public (so couldn’t be reckless endangerment).
- established 2 different routes for criminal liability:
1. reckless endangerment
2. recklessly causing injury
Is recklessly transmitting HIV to a partner likely to be considered reckless injury?
Yes, according to unreported case:
HM Adv v Kelly
Was throwing a bottle from 15th floor flat and injuring someone enough to constitute reckless injury?
Yes
W v HM Adv
- threw glass bottle from 15th floor flat
- no intention to injure - but still liable
According to Smart, what is sufficient mens rea for assault?
Intention to do something that amounts to an unlawful attack
