Assault & Reckless Conduct PDF

🤜🏻 assault & reckless conduct assault an attack upon another person with evil intent assault is a conduct crime - focus is on the attack itself (Injury is not necessary) a single broad offence of assault in Scots law - aggravating factors...

🤜🏻 assault & reckless conduct assault an attack upon another person with evil intent assault is a conduct crime - focus is on the attack itself (Injury is not necessary) a single broad offence of assault in Scots law - aggravating factors may be mentioned in the indictment/ complaint which influence the sentence received actus reus: attack upon the person of another - direct infliction of violence in the paradigm case (e.g. punching, hitting, kicking, pushing) but also extends to indirect infliction of violence and threatening gestures that are sufficient to produce fear or alarm David Keay 1837 : child sat on horde which man whipped frequently, horse retaliated and knocked off child and stomped on them. defence was he didn't touch the child and only whipped the horse. court held the indirect violence to the child was sufficient. Kay v Allan 1978 : group of children who were trespassing on land of accused. accused set his dog on the children who attacked them. result was the same as earlier case. Atkinson v HM Adv 1987: robbery at petrol station, two accused people had jumped over the counter and her employee at knifepoint for money. found one of the two guilty of the physical assault but the second one not. second accused appealed against conviction against assault as the court didn't find him guilt of holding the man at knife point. appeal court held that assault also covers threatening gestures. Gilmour v McGlennan 1993: robbery of shop, accused had pointed gun to people behind the counter which caused fear and alarm. turned out the guns was not real. accused used the defence that it was a joke and he was not actually trying to assault & reckless conduct 1  rob or hurt them. court relied on Atkinson case and said the threatening gesture was sufficient to meet actus read of assault. mens rea : evil intent - attack must be intentional (not reckless, negligent) modern authority suggest the word ‘evil’ does not add anything to the intent. accused need only intend to do something that amounts to an unlawful attack. Smart v HM Adv 1975: two people had agreed to fight. both convicted of assault and tried to argued as it was mutually consensual the mens rea of the assault was missing. court held it was an obvious attack with consent so it didn't matter. suggests there is no independent meaning to the word ‘evil’ Lord Advocate Reference (No 2 of 1992) : made a threatening gesture but played it off as a joke. appeal court found there was required mens rea. defence of it being a practical joke confused motive and intention. - doesn't change the fact that the intention was trying to cause fear and alarm. JH v Scottish Children's Reporter Administration 2023: evil intention isn't just an intention to cause violence to other people but also cause fear and alarm. consent to assault: consent is not a valid defence to assault: Smart v HM Adv but there will be no liability where A intends only to engage in a lawful activity - Smart v HM Adv where does this leave cases where the ‘victim’ positively wants to be injured? compare English law - R v Brown 1993: consensual sadomasochism, consent was no defence - could they rely on the Smart Case today? Laskey v UK 1997: appeal of brown case to EU level. court held approach taken in Brown didn't violate defendants right to private life. corporal punishment: corporal punishment is punishment of children (e.g. smacking). it satisfies the definition of assault, assault & reckless conduct 2  parents and guardians who employed CP could previously claim the defence of ‘reasonable chastisement’ however, this defence now has been abolished : s1 Children (Equal Protection from Assault)(S)Act 2019. culpable and reckless conduct offences of recklessly injuring and endangering others the nomen juris issue: no requirement to name an offence in indictment/ complaint result is uncertainty about precisely what offences exist in this area and their definition charges identifiable by key words: ‘you did culpably and recklessly do x…’ two general categories - reckless endangerment reckless injury some stablished particular cases: discharge of firearms supply of harmful substances mens rea of recklessness in common law sense: i.e. indifference/ disregard (Cameron v Maguire 1999) 1. culpable and reckless endangerment of the lieges ‘lieges’ = the public or a section of the public McPhail v Clark 1982: farmer who set fire to several fields accidentally and endangered driver due not addressing the smoke. Normand v Robinson 1993: rave in a dangerous warehouse - no lighting so had to use candles and there was no fire alarm/ water/ safety equipment or means of escape. Robertson v Klos 2006: accused caught driving over the speed limit, using a phone and only driving with one hand. in his defence he argues he was in full control of the car and had only passed one other person on the road due to the time at night. the appeal court held it was still sufficient for reckless assault & reckless conduct 3  endangerment. - there doesn't have to be any actual person that was put in danger, just the possibility. how much danger must the conduct create? see e.g. the ‘sharps’ cases: Normand v Morrison 1993: accused denied having a syringe on her when she did. charged with culpable and reckless endangerment. Kimmins v Normand 1993: exact same situation. went to the appeal court and affirmed the principal that conduct like denying you have sharp objects, endangering one police officer, falls within reckless endangerment. Donaldson v Normand 1997: accused admitted he had sharp objects on him and handing them over to police. very intoxicated and forgot to hand over syringe in his sock. court found him guilty of reckless endangerment. Mallin v Clark 2002: accused said they didn't know if they had any sharp objects on them. when the police found the sharp object, the accused was charged under culpable and reckless conduct. this conviction was quashed as it was a case of omission and the prosecution failed to establish there was a duty owed to the police. if prosecution wants to go ahead on a omission charge, they must find a positive duty. 2. culpable and reckless injury historically, charges of reckless conduct had to allege endangerment of the lieges now accepted that recklessly causing injury itself is a crime: HM Adv v Harris 1993: accused was a bouncer in a nightclub and was originally charged with assaulting a girl by throwing her out the club where she fell onto the road and was hit by a car. prosecution added an alternative charge of reckless conduct even if it wasn't found that he meant to injure her. accused appeals saying he only meant to endanger this customer, not the wider public. appeal court said recklessly causing injury is an offence. - even if you can't prove intention, you are able to prove recklessness to get a conviction. W v HM Adv 1982: somebody had thrown a bottle out the window of their flat and it had hit someone who was walking below. no intention to cause injury however it was found that this was a reckless act. court doesn't look for wider injury to the public, injury to one person is enough. 3. culpable and reckless discharge of firearms assault & reckless conduct 4  are these a species of culpable and reckless endangerment or a separate offence? Gizzi v Tudhope 1983: 200 yard away from where they were shooting there was workman. workmen were hit by the shotgun. accused tried to argue they weren't aware of this risk as they were behind the trees. appeal court was not sympathetic and upheld the conviction. they created this risk to the workman even if they weren't aware of them, they should have taken more care. Cameron v Maguire 1999: accused testing his new rifle in a rural area and aiming at a bank of earth. public footpath running behind his house so there could have been people walking by. still enough of a risk in the view of the court to justify the conviction. 4. culpable and reckless administration/ supply of harmful substances administration has been recognised as a crime for a long time more recently, supply had been held equivalent to administration Khaliq v HM Adv 1984, Ulhaq v HM Adv 1990: glue sniffing kits sold by shops, in Khaliq it was to children that these kits were supplied. the view of the appeal court was that the shopkeepers could be liable for that. in Ulhaq, the court extended the same principal to adults saying even if they are making a free, autonomous decision, the shopkeepers can be seen as endangering the adults just as much as they can with children. these general set of principals applies to substances even when the substances are legal (e.g. alcohol) Borwick v Urquhart 2003: supplying underage people with alcohol endangers the consumers and therefore those supplying it can be found guilty of reckless and culpable supply. assault & reckless conduct 5