Assault!

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Photo by Martin Sanchez on Unsplash

The situation caused by the COVID-19 continues to generate all sorts of legal consequences. One of the latest angles to be given wide publicity is the rising number of incidents involving assaults carried out by individuals who claim to be infected with the virus.

Several innocent members of the public – whether they be private individuals, shop workers, Police officers or National Health Service staff – have experienced confrontations with extremely anti-social individuals who have threatened to cough over them or spit on them.

One such incident occurred at the weekend, which was reported by BBC Scotland (see below):

Assault in Scotland is generally treated as a common law offence. It would involve a physical attack (or an attempted attack) on another person. Threats issued by a person to a victim would also constitute an assault if these put the victim into a state of fear and alarm.

In relation to the above incident, the clear intention of the teenager (even if he was completely healthy) was to put the healthcare worker into a state of fear and alarm. Hopefully, the victim will remain completely healthy and free of viral symptoms.

This is not, however, the point: her attacker clearly had the mens rea (the guilty mind) and he followed this through with the actus reus (the wrongful act). If there are witnesses and other evidence which can corroborate the incident, then the Police may have grounds to charge her attacker with assault.

If the criminal investigation proceeds to this stage, it will then be for the Procurator Fiscal (the local prosecutor) to determine whether there is enough evidence to initiate criminal proceedings against the accused.

The Lord Advocate, James Wolfe QC has issued a statement in relation to assaults on key workers:

The Crown has a range of responses available to tackle unacceptable criminal conduct that may arise during the coronavirus pandemic. Any person who deliberately endangers life, or spreads fear and alarm by pretending to do so, will be dealt with robustly. It is difficult to imagine a more compelling case for prosecution in the public interest.

Although assault is generally considered to be a common law offence, we should be mindful of the provisions of Section 90 of the Police and Fire Reform (Scotland) Act 2012 which creates the statutory offence of assaulting or impeding the Police in the discharge of their duties. If an accused is successfully convicted of an offence in terms of Section 90, they may face a maximum prison sentence of 12 months and/or the imposition of a fine.

In England and Wales, a different approach is taken to assault: it is regarded as a statutory offence in terms of the Offences Against the Person Act 1861.

The Crown Prosecution Service for England and Wales has stated that attacks on emergency workers may result in a prison sentence of two years being imposed should the accused (the defendant) be found guilty of such an assault (as per Section 38 of the Offences Against the Person Act 1861).

Links to stories on the Sky News website about the rise of this type of criminal offence can be found below:

http://news.sky.com/story/coronavirus-nhs-staff-police-and-public-being-coughed-on-by-people-claiming-to-have-covid-19-11965058

http://news.sky.com/story/coronavirus-man-who-spat-on-police-while-claiming-he-had-coronovairus-is-jailed-11967349

http://news.sky.com/story/coronavirus-police-want-spit-guards-to-protect-officers-from-vile-behaviour-11969529

http://news.sky.com/story/coronavirus-policewoman-bitten-on-the-arm-while-explaining-covid-19-lockdown-rules-11971769

In the United States of America, incidents such as the above have more serious consequences: COVID-19 is classified as a ‘biological agent’. Attempts to spread or threats to spread the virus are treated as a terrorist offence (see below):

http://news.sky.com/story/coronavirus-two-charged-with-terror-offences-over-threats-to-spread-covid-19-11970802

Copyright Seán J Crossan, 31 March; 6 & 11 April 2020

The burden of proof

Photo by JJ Jordan on Unsplash

In Chapter 1 of Introductory Scots Law, I discuss the differences between criminal and civil law. A discussion point which often arises in my lectures with students is the difference in the standard of proof in criminal and civil trials.

In a criminal trial, the onus or burden of proof is very much the prosecutor’s responsibility. In other words, the prosecutor must prove beyond reasonable doubt that the accused is guilty.

By complete contrast, in civil litigation, the onus or burden of proof is placed on the shoulders of the pursuer (or the claimant). S/he must show, on the balance of probabilities, that the basis of the claim is stronger or more credible than that of the defender (or respondent).

The criminal standard of proof is of a much higher standard than the civil burden of proof. I think this can be easily justified given the consequences of someone being convicted of a crime: the sanctions are much more serious and potentially longer lasting.

So far so good: most First Year Law students can grasp the distinction between the different standards of proof or evidence.

Difficulties tend to arise when students encounter a situation where the conduct of the behaviour at the centre of a case can have both criminal and civil consequences.

They often ask me why someone (the accused) can be acquitted of a crime, but sued successfully in a subsequent civil action?

I often use driving offences as a means of making a point. Many drivers who are charged with dangerous driving often experience immediate relief when they are acquitted of criminal charges; this sense of relief can be short lived when they are informed that the victim intends to proceed with a personal injury action (which has a very realistic chance of success).

The simple reason for the above situation is the difference in the burden of proof in each trial: the higher burden of proof in a criminal trial and a lower burden of proof in the civil claim.

It’s also important to appreciate that the criminal and civil legal systems operate independently of one another. They have different functions:

Primarily, criminal law seeks to punish offenders who behave in dangerous and irresponsible ways which would threaten the safety and security of the wider community and public.

On the other hand, civil law (concerning the breakdown of relations between private individuals) essentially seeks to provide the victim of a breach of duty with a remedy – usually, but not always, compensation or damages.

In Chapter 1 of Introductory Scots Law, I discussed the example of a successful civil claim for damages by a rape victim (DC v (First) DG and (Second) DR [2017] CSOH 5). Crucially, the criminal case against her alleged attackers had been unsuccessful and both men were acquitted. That was not the end of the matter: the victim pursued both men at the Court of Session and won substantial damages in respect of her injuries.

A link to the judgement can be found below:

https://www.scotcourts.gov.uk/search-judgments/judgment?id=d22e28a7-8980-69d2-b500-ff0000d74aa7

Recently, there have been a number of similar cases where the failure of criminal cases to secure convictions for rape have been no barrier to victims of sexual assault from pursuing civil damages claims in the Scottish courts.

Links to two of these stories reported by the BBC can be found below:

Woman wins £80,000 in damages from man cleared of raping her in St Andrews

The woman has won her civil case against a man who was cleared of raping her after a night out in Fife.

Soldier cleared of rape ordered to pay £100,000 in civil case

Sean Diamond continues to deny the allegation and says he is asking for the decree to be recalled.

Conclusion

There different standards of proof depending on whether the legal action is a criminal prosecution or civil claim.

There is a higher standard of proof required in a criminal prosecution to secure a conviction.

The two legal systems have different objectives and operate independently of one another.

As we have seen in a number of cases, an accused who is acquitted in a criminal trial may experience a very unpleasant shock when the victim communicates an intention to pursue a civil claim for damages – which, in the longer term, may have every chance of success.

It should be emphasised, of course, that those successfully sued for conduct such as rape or sexual assault, but successfully acquitted of all criminal charges, will not have a criminal record. They will bear civil responsibility for the victim’s injuries. It’s by no means a perfect solution (given the lower conviction rates for rape), but does provide victims with some means of legal redress.

Copyright Seán J Crossan, 10 February 2019