Assault – Seán Crossan's Scots Law

Assault!

red white and black textile — 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

Homicide?

Photo by Valentin Salja on Unsplash

For my latest Blog, I’m sticking with Scotland’s public prosecution system.

The Lord Advocate, James Wolffe QC, has just won an interesting ruling before the Appeal Judges of the High Court of Justiciary.

The case in question is Crown Appeal under Section 74 by Her Majesty’s Advocate v Jason Gilmour [2019] HCJAC 74 HCA/2018/000542/XC.

The reason for the Crown’s appeal was that Mr Gilmour’s victim had subsequently died.

The simple question was this: could the Crown, having accepted Mr Gilmour’s guilty plea to the charge of aggravated assault, then pursue a subsequent prosecution against him for murder?

As Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge) noted:

“The charge of murder alleges that on 11 June 2012 the respondent [Gilmour] assaulted the deceased by repeatedly punching him on the head causing him to fall to the ground, and then kicking, stamping and jumping on his head, whereby he was so severely injured that he died almost five years later on 17 April 2017.”

Before the introduction of the Double Jeopardy (Scotland) Act 2011, it was a clearly established principle of Scottish criminal law that an accused who had assaulted a victim could be charged subsequently with either culpable homicide or homicide if the victim later died due to the injuries sustained by reason of the assault.

The introduction of the Act meant that some clarification of the law was required.

As Lady Dorrian, the Lord Justice Clerk stated in response to the Lord Advocate’s appeal:

“The rationale for this was that the crime of murder was a separate crime and “it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party”- HM Advocate v Stewart (1866) 5 Irv. 301. In Tees v HMA 1994 JC 12 the accused had pled guilty to a charge of assault under deletion of attempted murder, and was re-indicted for culpable homicide when the victim died.“

In delivering the Opinion of the Court, Lady Dorrian succinctly concluded that:

“Whatever may have been the position prior to the introduction of the 2011 Act … that Act makes it abundantly clear that it should now be possible to prosecute for murder even where there has been a prior prosecution for attempted murder. It is against that background that the Lord Advocate’s acceptance of the plea must be analysed. For this reason also we consider that the acceptance of the plea cannot be construed as the renunciation of a right to prosecute should the victim die.“

Section 11 was the key part of the 2011 Act and the intention of the legislation was clearly to permit the possibility of a subsequent prosecution of the accused for murder – even in situations where s/he had previously faced a charge of attempted murder and had been acquitted.

In early 2019, Mr Gilmour’s had been prosecuted for his victim’s murder. He was convicted of culpable homicide and sentenced to a prison sentence of four and a half years. This has now been upheld by the Appeal Court.

A link to the judgement can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac74.pdf?sfvrsn=0

Copyright Seán J Crossan, 14 November 2019

Smacking: banned!

Photo by Anna Kolosyuk on Unsplash

John Finnie, a Green Party member of the Scottish Parliament introduced a Bill (Children (Equal Protection from Assault) (Scotland) Bill) on 6 September 2018.

This Bill seeks to remove the common law defence of reasonable chastisement in Scotland which permits parents and guardians (primarily) to use smacking as a punishment in relation to children in their care.

The main objective of the Bill was expressed in its accompanying Explanatory Notes:

“A person charged with assault of a child will no longer be entitled to claim that a use of physical force was justifiable on the basis that it was physical punishment administered in exercise of a parental right (or a right derived from having care or charge of a child). This will give children the same protection from assault as adults.”

This week (beginning 30 September 2019), Mr Fannie’s Bill passed Stage 3 of the legislative process in the Scottish Parliament. The Bill will shortly receive the Royal Assent (a mere formality) thus becoming the Children (Equal Protection from Assault) (Scotland) Act 2019.

An info graphic showing that the Bill has now passed Stage 3 of the legislative process in the Scottish Parliament can be found below:

As a result of the passing of this Bill into law, Scotland will follow 54 other countries from around the world where the physical chastisement of children is now the criminal offence of assault.

A link to how the passing of the Bill was reported by The Guardian can be found below:

https://www.theguardian.com/uk-news/2019/oct/03/scotland-becomes-first-country-in-uk-to-ban-smacking-of-children

Copyright Seán J Crossan, 4 October 2019

Ban smacking!

Photo by Kat J on Unsplash

John Finnie, a Green Party member of the Scottish Parliament introduced a Bill (Children (Equal Protection from Assault) (Scotland) Bill) on 6 September 2018.

This Bill would remove the common law defence of reasonable chastisement in Scotland which permits parents and guardians (primarily) to use smacking as a punishment in relation to children in their care.

The main objective of the Bill is expressed in its accompanying Explanatory Notes:

The Bill is quite a short one – a mere 5 sections – but if passed into law it is sure to have a very significant effect.

Section 1 contains the actual provision which would abolish the defence of reasonable chastisement

Section 2 places a duty on the Scottish Ministers to raise awareness and understanding of the proposed legislation

Section 3 contains the transitional and saving provision which is essentially interim arrangements for repealing the previous legislation and gives the Scottish Ministers the power to do anything which would bring the provisions of the new law into force

Section 4 deals with the commencement of the proposed law i.e. the day after it receives Royal Assent

Section 5 contains the short title of the Bill.

The Bill will be debated and scrutinised by other MSPs in the Chamber and in Committee and it is quite possible that amendments or changes will follow. With every Bill, there is also the possibility that it might fall at a particular stage of parliamentary proceedings or, even if passed, could be subject to legal challenge e.g. the Scottish Government’s Children and Young Person’s (Scotland) Act 2014 which the UK Supreme Court found fault with on human rights grounds in 2016 (see The Christian Institute and Others v The Lord Advocate [2016] UKSC 51).

A link to the Scottish Parliament’s website where the Bill (as introduced) and its accompanying or supporting documents (which must be submitted) can be found below:

https://www.parliament.scot/parliamentarybusiness/Bills/109156.aspx

The Bill must, of course, comply with Scotland’s international human rights obligations as contained in the Scotland and Human Rights Acts (of 1998); and it must be within the “legislative competence” of the Scottish Parliament as per the Scotland Acts of 1998 (which the Presiding Officer, Ken McIntosh MSP has indeed confirmed).

The Bill is also subject to a Financial Memorandum. This can be summed up as a cost analysis to the Scottish Administration:

“The Bill does not create a new offence; rather, it removes the defence of reasonable chastisement for the assault of a child. Thus, once the Bill is in force, some prosecutions may proceed as a result of the Bill which may not have proceeded when the defence was available. The Bill may also lead to additional cases of lower level physical punishment being reported, and prosecuted, which are currently not reported due to the defence being available.

Accordingly, the Bill can be expected to have some impact and costs on the criminal justice system.” [author’s emphasis]

Progress so far

The Equalities and Human Rights Committee of the Scottish Parliament gave its unanimous backing to the Bill (as as has the Scottish Government).

In support of his Bill, Mr Finnie has emphasised that 54 countries around the world have removed the right from parents and guardians to use physical chastisement as a method of disciplining children. His contention is that, if the Bill is adopted, it would bring Scotland into line with other developed countries.

In order to become a new Scottish law, the Bill, of course, must pass through all (3) legislative stages of Scottish parliamentary procedure.

The Bill is currently at Stage 1 of proceedings. Please see the diagram below taken from the Scottish Parliament’s website which tracks the current progress of the Bill (as of today – Tuesday 28 May 2019):

In a previous Blog (Private Members’ Bills published on 29 April 2019), I drew attention to the fact that backbench members of the Scottish Parliament have a much greater ability to introduce Bills (and ultimately get them onto the Statute Book) when compared to their counterparts sitting in the House of Commons at Westminster. The term backbench or private member is a description which covers any MP or MSP who is piloting a Bill through Parliament which is not a Government Bill.

A link to an article on Mr Finnie’s Bill can be found below:

MSPs to discuss smacking ban bill in parliament debate

Postscript

The Bill has now proceeded to Stage 2 of the legislative process in the Scottish Parliament as the infographic displayed below demonstrates: