Assault

Question 1

what is the definition of an assault

Answer 1

• ‘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

Question 2

Actus Reus of Assault

Answer 2

• Deliberate attack on another, usually a hostile act
• Every attack upon another person is an assault, whether it injures or not

Question 3

what is the usual result of an assault and what attack may it be

Answer 3

• usual result is bodily harm
• may be a direct or indirect attack

Question 4

what was confirmed in Hynd v McGlennan 2000

Answer 4

spitting in someone’s face is an assault

Question 5

what may constitute as an assault

Answer 5

fear of injury

Question 6

case facts of Gilmour v McGlennan 1993

Answer 6

• 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

Question 7

what is a critical factor when determining assault

Answer 7

the intention to injure

Question 8

case facts of Kay v Allan 1978

Answer 8

• 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

Question 9

what must happen if injury is caused by the assault

Answer 9

there must be a direct causal link between injury and assault

Question 10

case facts of Dennie v HMA 2018

Answer 10

• 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

Question 11

case facts of Mackenzie v HMA 1983 (Assault or accident)

Answer 11

• 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

Question 12

examples of how aggravation may make the crime more serious

Answer 12

• Use of weapon
• To severe injury
• To the danger of life
• Domestic abuse

Question 13

how may courts infer intention to injure

Answer 13

from the actions of the accused

Question 14

case facts of Kerr v HMA 1986

Answer 14

• Medical evidence suggested victim’s life had not been put at risk
• ‘danger to life’ can be inferred from the actions of the assault

Question 15

what does the mens rea require

Answer 15

some demonstration of ‘evil intent’

Question 16

what are the two forms of demonstration of evil intent in the mens rea

Answer 16

1. Intention of injuring that person
2. Or producing the fear of immediate injury in that person’s mind

Question 17

what was held in Smart v HMA 1975 in regards to evil intent

Answer 17

evil intent means intent to injure and do bodily harm

Question 18

case facts of Lord Advocate’s Refrenece (No.2 of 1992) 1993

Answer 18

• 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

Question 19

what are some examples of distinguishing assault from other actions (force being used with no evil intent)

Answer 19

• sports
• police arresting suspects

Question 20

case for intent may be transferred and facts

Answer 20

• 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

Question 21

what are the potential defences to a charge of assault

Answer 21

• consent
• reasonable restraint

Question 22

briefly explain the defence of consent

Answer 22

• isn’t regularly a justifiable assault
• Consent may be relevant in some circumstances – each case should be decided on its own facts

Question 23

case examples of the defence of consent

Answer 23

• R v Brown 1994
• Smart v HMA 1975

Question 24

case facts for R v Brown 1994

Answer 24

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

Question 25

briefly explain the defence of Reasonable restraint

Answer 25

- May be available to the police - Must be reasonable, if not, it will constitute as assault - Must establish the necessary mens rea for assault

Question 26

case facts of Marchbank v Annan 1987 (reasonable restraint)

Answer 26

- Police officer went beyond the limits of force that were acceptable in arrest - Guilty of assault

Question 27

in which case did the defence of reasonable restraint satisfy + facts

Answer 27

- Wightman v Lees 1999 - Common sense had to apply - Restraint to effect a citizen's arrest was justifiable - Self-defence

Question 28

case for offence of Indecent Assault + facts

Answer 28

- 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