assault

Question 1

assault equation

Answer 1

assault = (actus reus: attack) + (mens rea: evil intent)

Question 2

attack equation

Answer 2

attack upon the person of another = (direct infliction of violence) / (indirect infliction of violence) / (threatening gestures sufficient to produce fear or alarm)

Question 2

indirect attack (assault)

Answer 2

Kay v Allan 1978 SCCR Supp 188
Facts: A couple of children that repeatedly trespassed on the accused’s land. The accused set his dogs on them, which caused injury.
Held: Despite objections from the accused, he was still liable for assault. He had intentionally set his dogs on the children, and this constituted an attack.
Significance: Indirect assault can constitute an attack for the purpose of assault.

Question 3

threatening gestures sufficient to produce fear or alarm

Answer 3

Atkinson v HM Adv 1987 SCCR 534
Facts: Co-accused accused of robbing a petrol station. It was said that they had jumped over the counter and held a knife to the throat of the worker, demanding that he hand money over.
Legal issue: The accused were charged with assault. One was definitely guilty because he was using a knife, but was the other guilty of assault?
Held: The second accused was convicted of assault.
Significance: The concept of an attack extends to threatening gestures sufficient to produce fear or alarm. There doesn’t need to be direct assault.

Question 4

threatening gestures sufficient to produce fear or alarm where there is no threat

Answer 4

Gilmour v McGlennan 1993 SCCR 837
Facts: Someone who had approached a car with a child’s toy gun, pointing it at the occupants of the car, demanding them to hand over their money. This caused the occupants of the car to be extremely alarmed and agitated.
Legal issue: The accused argued that there was no actual threat of violence, and that it wasn’t even reasonable to believe that there was one, given that it was clearly a toy gun.
Held: This was unimportant, and the accused was convicted of assault.
Significance: Even where there is no threat of violence and when this is clear, it can still constitute assault.

Question 5

evil intent clarifying case

Answer 5

Kirkup v HM Adv 2025 JC 135
Significance: Clarified Smart. As long as you intended to do something that would amount to an attack in the relevant sense, that would be sufficient mens rea for assault.

Question 5

evil intent leading case

Answer 5

Smart v HM Adv 1975 SLT 65 LEADING CASE ON THIS
Significance: An attack only needs to be intentional, rather than reckless or negligent. BUT left open whether it could be argued that there was a good intention.

Question 6

motive vs intention (mens rea for assault)

Answer 6

Lord Advocate’s Reference (No. 2 of 1992) 1993 SLT 460
Facts: A guy playing a prank with a toy gun. Once he realised that there were more people in the shop, he ran out and turned himself into the police.
Held: The original court had confused intention and motive.
Significance: The only question here is whether the accused had done it intentionally.

Question 7

can you consent to assault?

Answer 7

Smart v HM Adv 1975 SLT 65
Facts: Consensual fight between two people.
Legal issue: The accused’s defence was that this was something that they had both consented to.
Held: No.
Significance: Consent is not a valid defence to assault.

Question 8

defence of consent in the context of sexual activity

Answer 8

Kirkup v HM Adv 2025 JC 135
Facts: There was some doubt as to whether there was genuine consent, and involved someone inflicting injuries on another in a sexual context.
Legal issue: Would consent provide a defence to this?
Held: No.
Significance: This is not a defence in the context of assault in a sexual context. There is no possibility to use this defence.