04-02 Crimes of Violence_7e114f7b9fe45f52c62cf6a37b45a02a.pdf

OFFICIAL Unit 4 Lesson 2...

OFFICIAL Unit 4 Lesson 2 Crimes of Violence Lesson Aim: The learner will be able to describe the crimes of violence against the person Learning Outcomes: Introduction On successful completion of the lesson, students will be able to:- Assault will be one of the most common crimes you will encounter as a police officer. 1. Define the common law crime of assault Assault may range from a minor assault where there is no injury to a serious assault where severe injury is caused. 2. List the categories of assault 3. State the factors which may cause an assault to be considered “aggravated” 4. Explain when an assault may be considered as “justifiable” 5. Identify statutory examples of assault 6. Explain the common law crime of culpable and reckless conduct 1 th Amended 25 April 2024 v.6 OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Activity 1 A1 Which of the following scenarios do you think may be an assault? A girl punches her brother because he was annoying her. Yes/No A pensioner sets her dog on young children for throwing stones at her windows. The dog bites a child. Yes/No During an argument a man throws his partner’s suitcase out of a window and injures a passer-by. Yes/No Definition of Assault “A crime at common law, and is every attack directed to take effect physically on the person of another, whether or not actual injury is inflicted.” For a charge of assault to be relevant there must be criminal intent (Mens Rea) and a criminal action (Actus Reus) Accidental injury, even though caused by a mischievous act, does not amount to an assault Example Charge EC “On 22nd January 2020, at Brookbank Crescent, Brookbank, you JEREMY KEATON did assault Jennifer Marshall, care of Police Service of Scotland, and did punch her on the head.” 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Case Law Stewart aimed a blow at someone but missed. He was convicted of assault. The attack must be physical in character but need not have a physical result. (Stewart v PF, 1829) However, in certain circumstances a charge of culpable and reckless conduct may be appropriate instead. This is the reckless behaviour of a person showing utter disregard for the consequences Example:- throwing stones at buses or trains which, although could result in injury, is not the intention. Culpable and Reckless Conduct is covered later in this lesson note. Doctrine of Transferred Intent Where A intends to assault B and strikes C instead, he is guilty of assaulting C by the application of the doctrine of transferred intent. (Roberts v Hamilton, 1989, SCCR 240) Categories of Assault There are various ways an assault can be constituted:- Direct A deliberate and direct physical attack on a person by punching, kicking, stabbing, etc. Indirect An assault may be indirect. For example, by setting a dog on another person or by striking a horse and causing it to rear and throw the rider. 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Case Law Kay set a dog on two young boys in her garden. Assault constituted by establishing intention to use dog to frighten a person (Kay v Allan, 1978) Menaces An assault may consist of a "violent menace". Verbal threats are not enough in themselves to constitute the crime of assault but threatening gestures inducing a state of bodily fear are sufficient, whether or not accompanied by menacing words. Examples:- Aggressively pointing a knife at a person within reach Aiming a firearm, whether loaded or not, if the victim believes the firearm is loaded or Any similar act, which has an intention along with the ability to use violence Feedback 1 F1 1. Yes, this is an assault. She made an intended physical attack on him. Although this is not normally reported to the Police. 2. Yes, this is an assault. She intended for the dog to be used to frighten children and injury has been caused. The attack must be physical in character but need not have a physical result - it would still be considered assault even if the dog did not bite anyone. 3. No, this is not an assault. There was no intent to assault the victim or cause them injury. Assault cannot be committed through recklessness. If you are considering the doctrine of transferred intent here, remember it was never the man's intention to hit his partner with the suitcase either. A crime of Culpable and Reckless conduct should be considered. 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Aggravations of Assault An aggravation of any crime, including assault, increases the gravity of the crime and may influence the Procurator Fiscal’s decision when considering proceedings in the case. If found guilty of assault with aggravated circumstances, an accused person is likely to receive a heavier sentence from the court. An assault may be aggravated by various factors:- Danger to victim Intent Mode of perpetration Persons character Locus of assault Extent of injury Statutory Hate Crime 1. Danger to victim Danger to victim, e.g. pushing a person may have more serious consequences if the person is pushed into moving traffic, down a flight of stairs, from a height, etc. 2. Intent The intention of the perpetrator e.g. to ravish (rape) or to kill. Where an assault takes place with intent to commit a more serious crime the best practice would be to charge an assault and an attempt to commit the other crime unless the stage of attempting has not been completely reached. 3. Mode of perpetration Mode of perpetration, e.g. with a firearm or with a pointed or cutting weapon, by throwing corrosive acid on victim, etc. 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence 4. Persons Character Character of victim and/or accused Victim - on a child, on a pregnant woman or on an infirm person. Accused - by a person in a position of trust, e.g. a police officer, social worker, carer, member of door staff, etc. 5. Locus of assault Locus of assault, e.g. in a victim's own home. 6. Extent of injury Extent of injury and the nature of the injury caused, e.g. life endangered, serious injury, bones fractured or permanent disfigurement. A serious assault is an attack in which the victim sustains injury resulting in detention in hospital as an inpatient, for the treatment of that injury. Furthermore any of the following injuries whether or not detained in hospital would be classified as serious:- Fractures - fractures mean the breaking or cracking of a bone. Note:- Nose is cartilage not bone so a ‘broken nose’ should not be classified as a serious assault unless it meets one of the other criteria. Internal injuries Severe concussion Lacerations requiring sutures, or equivalent, which may lead to impairment or disfigurement Any other injury which may lead to impairment or disfigurement 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence 7. Statutory Hate Crime Hate (or similar) motivation. (will be covered in more depth during the Hate Crime lesson in Unit 6.) An assault which is motivated by hate is rightly considered Hate Crime. The Scottish Government defines Hate Crime as:- "A crime motivated by malice or ill-will towards a social group". Incidents perceived to be motivated on the grounds of age, disability, faith, gender, race or sexual orientation will be classified as an example of Hate Crime. Any crime (not only an assault) so motivated, would rightly be considered as an "aggravated" offence. Justifiable Assault In certain cases, an assault may be justified by showing that it was done:- under the authority of the law or in self-defence (of yourself or another, not property) This could include in the prevention of a crime and during a detention or arrest of a person. In all cases, the force used must be the minimum necessary to achieve a satisfactory outcome. In sport, assault is justifiable as long as it is within the rules of that sport (e.g. boxing). In relation to self-defence, it would be considered self-defence for a person to physically defend themselves or a third party but the use of force must be the only means of defence available in all the circumstances and the force used must be the minimum necessary. Case Law If a man sees another man being unlawfully attacked, he is entitled to try to stop that unlawful attack. If, within reason, he uses methods that would otherwise constitute an assault, he will be excused because his intention is not to commit a criminal assault on his victim, but to prevent this person from carrying out an illegal assault on another person. (H.M.A. v Carson & another, 1964, SLT 21) 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence It has been held that a Constable who used force, when assaulted, to a degree which did not amount to cruel excess, had established his plea of self-defence. (Fraser v Skinner, 1975, SLT (Notes) 84) Provocation Assaulting a person as a result of provocation would not be considered justifiable, although the circumstances of provocation may be grounds for mitigation at the time of sentencing. Professional Standards PS Your duties as a Constable will often involve the use of force. For example, when arresting someone, you may need to use force which will have a physical effect on that person. You have a lawful right to carry out your actions and therefore, an assault is not committed. If you were to use more force than necessary to effect the arrest, the excessive force would constitute assault and you could be subject to criminal proceedings. Statutory Examples of Assault Some assaults are dealt with under statute. Here are some examples:- Section 1 of the Protection of Workers (Retail and Age- Restricted Goods and Services)(Scotland) Act 2021 creates an offence for a person to assault, threaten or abuse a person who is a retail worker and who is engaged at the time of the incident in retail work. There is an aggravation of this offence if the behaviour constituting the offence occurred because of enforcement of a statutory age restriction (e.g. sale of alcohol) Section 90 of the Police and Fire Reform (Scotland) Act 2012 relates to a person assaulting, resisting, obstructing or hindering (amongst other things) a Constable in the execution of his or her duty. 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Section 1 of the Emergency Workers (Scotland) Act 2005 refers to assaulting, obstructing or hindering someone who is acting in the capacity of a police constable, firefighter, ambulance worker, doctor, nurse or midwife. This section does not affect the protection of the police under the Police and Fire Reform (Scotland) Act 2012, however, unlike Section 90 which requires a physical element, Section 1 of the Emergency Workers (Scotland) Act 2005 can also include actions of a non-physical nature, e.g. actions directed at vehicles or equipment or the providing of false information. Note:- This Act does not cover Constables of the British Transport Police (BTP). They make use of section 89 of The Police Act 1996 as shown below: (1) Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence (BTP only) (2) Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence (BTP Only) Sections 16, 17 and 18 of the Firearms Act 1968 refer to the use of firearms by criminals to assault, resist or instil fear into others. This will be covered in more detail later in your training. (See Firearms Offences – Unit 7) Example Charge EC “On 30th March 2020, at Westburn Avenue, Kincardine, you SIMON SAUNDERS did assault Robyn Hannah, Police Constable of the Police Service of Scotland, then in execution of her duty and kick her on the head. Contrary to the Police Fire Reform (Scotland) Act 2012 section 90(2)(A).” Example Charge EC “On 28th May 2020, at Stevenson Avenue, Larbert, you GORDON HAINEY did obstruct, assault or hinder David Retson and Shahid Ali both Constables of Police Service of Scotland and did make repeated false calls to the 999 system requesting police. Contrary to the Emergency Workers (Scotland) Act 2005 Section 1(1) 9 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Communication C As a police officer, when investigating an assault, you will have to rely on members of the public providing witness statements. A professional approach with good communication skills may encourage a reluctant witness to cooperate with the police. Often when you attend an assault, individuals are emotional. This can be fuelled by alcohol or other substances. If you talk to people involved in a calm and reassuring manner, the situation may calm down and be easier to investigate. Activity 2 A2 You have just arrived at The Clansman, Scott Street, Brookbank, following a report of an assault. When you go into the pub, a man, bleeding from a head wound, meets you. He claims his ex-girlfriend hit him over the head with a bottle. Discuss, in your groups, what actions you will now take. 10 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Health and Safety HS Remember to be careful and always wear gloves when in contact with people or items, which are contaminated with biohazards, e.g. blood, saliva or urine. Culpable and Reckless Conduct There is no specific definition for this wide-ranging common law crime. However, it can be described as culpable and reckless acts which cause injury to others or which create a risk of injury. The act must be more than a genuine and innocent accident, however careless. In order to properly establish criminal culpability, the reckless behaviour of the accused must show an utter disregard for the consequences. Case Law Accused was charged with causing culpable and reckless injury by dropping a bottle from a fifteenth-floor flat into a pedestrian precinct. It was held (i) the mens rea required was total indifference to, and disregard for, public safety and (ii) accused had shown recklessness so depraved as to be regardless of consequences. (R.H.W. v. H.M.A., 1982, S.C.C.R. 152) The accused was charged with culpably and recklessly endangering the lives and health of a number of people in their twenties by selling them a substantial quantity of solvents, knowing that they were to be used for inhalation. Held that, as knowledge was established, there was no material distinction between supply and direct administration and appeal against conviction was refused. (Ulhaq v. H.M.A., 1990, S.C.C.R. 593) Throwing a traffic cone off a bridge injuring a student. (H.M.A. v Andrew Smith, 2007) 11 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence The behaviour on the part of the accused need not be an overt act. This is a crucial difference from the crime of Assault where a deliberate attack, either direct or indirect, must take place. The following cases clearly show how Culpable & Reckless Conduct can be constituted passively. Case Law The accused was convicted of Culpable & Reckless conduct by knowingly infecting another person with HIV. The accused, being aware that he was HIV positive and of the ways in which the virus was transmitted, had unprotected sexual intercourse with the complainer (who became infected with the virus). (H.M.A. v. Stephen Kelly, 2001) The appellant was charged that, having been told by a police officer that he was about to be searched and, having been asked if he was in possession of any needles, he culpably and recklessly denied being in possession of an unguarded needle he knew was in his pocket. The officer went on to be injured by the needle whilst searching the appellant and was exposed to the risk of infection. "Your actions which led to such tragic consequences to Miss Flannery were stupid, thoughtless and show a degree of maturity not expected for someone of your age" Judge Lady Dorrian. Held that, by denying he was in possession of any needles, the appellant’s conduct was undoubtedly criminal. It must have been clear to the appellant that the reason the question was being put to him was that the officer was about to put their hand into the appellant’s pocket. There was a reasonable inference from the denial, that it would lead directly to the officers doing that, with the result that they were injured. Appeal refused. (Kimmins v. Normand, 1993, S.C.C.R. 476) Example Charge EC “On 22nd January at Brookbank Crescent, Brookbank , you JASON YEN, did say no after being asked by Police Constable David Hoffman if you had anything sharp or pointed in your possession that may cause harm, culpably and recklessly had in your possession an uncapped hypodermic syringe. 12 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Feedback 2 F2 Actions at the scene of a crime are contained within the Evidential Considerations lesson (Unit 3). Here are some actions that are particularly relevant to assault. Seek medical assistance for the victim if required. Circulate a description of the suspect/accused if appropriate. Secure any potential evidence and the locus. Obtain details of all potential witnesses, including medical staff. Make arrangements for detailed statements to be obtained. Consider what would be suitable for a scenes of crime examination (fingerprints, photographs of locus and injuries, obtain swabs or samples etc.) Search for and seize any weapons suspected to have been used in the assault. Intelligence I SID (Scottish Intelligence Database) is an extremely important platform for Police Scotland to manage and assess intelligence related to various aspects linked to Crimes of Violence. This is also used to inform future Police action. It is imperative that any relevant intelligence opportunities are explored and submitted to SID 13 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence For further information, use the resources shown below:- Legal Database:- Criminal Law - Crimes Against the Person - Assault Criminal Law - Crimes Against the Person - Reckless Conduct Review: You can define the common law crime of assault You can list the categories of assault You can state the factors which may cause an assault to be considered “aggravated” You can explain when an assault may be considered as “justifiable” You can identify statutory examples of assault You can explain the common law crime of culpable and reckless conduct 14 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 15 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 2 Crimes of Violence 16 Scots Criminal Law: Introduction and Investigation OFFICIAL