Non-Fatal Offences Against the Person: Lecture 1 Notes

Key offences covered:

• Assault

• Reckless Injury

• Reckless Endangerment

• "Child Abuse" Offences

• Domestic Abuse Aggravation

Assault Definition
Assault is a common law offence characterized by an attack with evil intent, which encompasses a range of actions from physical violence to gestures threatening harm.
Sources: Macdonald, A Practical Treatise on the Criminal Law of Scotland, provides extensive legal definitions and interpretations concerning assault and its implications under Scottish law.

Elements of Assault:

• Actus Reus: An attack that can be physical or involve threatening gestures.

• Mens Rea: The presence of evil intent behind the action.

Assault: Actus Reus
Assault is broadly defined to encompass any attack; it does not necessitate direct physical violence or injury. Gestures that instill bodily fear in another person are also considered assault, regardless of any accompanying words.

Notable Cases:

• Smart v HM Advocate (1975): Affirmed that physical acts such as kicking or punching qualify as assault under the law.

• Hynd v McGlennan (2000): Established that even actions considered minor, like spitting, are recognized as assault due to their infringement on personal bodily integrity.

• Lord Advocate’s Reference (1992): Clarified that gestures or menacing actions could be recognized as assault without any direct physical contact.

• Quinn v Lees (1994): Addressed scenarios involving proxy violence, such as using dogs to intimidate others.

Assault: Mens Rea
The mens rea for assault requires evil intent, distinctly separate from mere recklessness or negligence. Intent to injure must be clearly demonstrated through actions or context.

Examples of determining evil intent:

• Smart v HMA (1975): Proved that intent to inflict injury must be substantiated during legal proceedings.

• Lord Advocate’s Reference (1992): Notes public policy exceptions that pertain to mutual consent during activities such as certain sports.

• Quinn v Lees: Stressed the context of intent, whether the action was taken seriously or in jest.

Assault: Defences

• Consent: In Scotland, consent is not a valid legal defence against assault.

• Smart v HMA: Defined that consent in physical altercations does not negate the existence of evil intent and liability.

• Complexity in Defining Evil Intent: The line between lawful and unlawful violence remains blurred, particularly in consensual situations where events may lead to the perception of evil intent, including in personal relationships and sports.

Reckless Injury
Reckless Injury is classified as a common law offence where injury is inflicted recklessly, with notable judicial guidance provided in Harris v HM Advocate (1993).

Elements:

• Actus Reus: Injury to another individual resulting from reckless actions.

• Mens Rea: The state of mind characterized by recklessness.

Reckless Injury: Actus Reus
Injury includes both psychological and physical harm, emphasizing the broad interpretation of the term. Significant aspects include:

• Recklessness extends to actions leading to severe injuries, even if those injuries were not the primary intention (e.g., pushing someone with the unforeseen consequence of them falling).

• A notable case involves reckless transmission of STIs, highlighting the need for clear causal connections regarding harm regardless of cooperation from the victim.

Reckless Injury: Mens Rea
The mens rea regarding reckless injury focuses on an objective standard of recklessness, defined as ignoring foreseeable consequences. Individuals engaging in reckless behaviors must exhibit a sustained disregard for potential dangers arising from their conduct.

Reckless Endangerment of the Lieges
Defined as actions that endanger public safety, with the Puma of Leith (1976) case serving as a primary judicial reference, wherein a landlord’s negligence regarding a puma put the public in jeopardy. Legal precedents indicate the need for caution when prosecuting reckless endangerment, particularly concerning cases involving STIs where discretion plays a significant role.

Child Abuse and Domestic Abuse
Both offenses are defined through specific legislation:

• Children and Young Persons (Scotland) Act 1937: Criminalizes any form of harm inflicted upon children under one’s care, including neglect and physical abuse.

• Children (Equal Protection from Assault) (Scotland) Act 2019: Enforces the absolute prohibition of any form of physical punishment or chastisement against children.

• Abusive Behaviour and Sexual Harm (Scotland) Act 2016: Establishes aggravations in offences motivated by domestic abuse, reinforcing the legal system's commitment to protecting vulnerable individuals, especially within domestic settings.

Conclusions
The key offences of assault, reckless injury, and reckless endangerment encompass a wide spectrum of violent behaviors and highlight the legal system's response to harm, emphasizing that consent is not a defense in these cases. The ongoing ambiguity regarding the definition of evil intent reveals the complexities inherent in legal interpretations, with prosecutorial policies largely shaping the enforcement of these offences in practice.