Smart v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 24 January 1975 |
| Date | 24 January 1975 |
| Docket Number | No. 6. |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Leechman, Thomson.
Crime—Assault—Evidence that complainer consented to fight with the panel—Whether consent a defence.
At his trial on indictment charging assault the panel substantially admitted the acts libelled as constituting the assault but gave evidence that he and the complainer had agreed to have a "square go." The panel lodged a special defence that he was acting in self-defence he having been assaulted by the complainer. At the conclusion of the evidence the panel's solicitor moved the Sheriff to direct the jury to find the panel not guilty in respect that the evidence disclosed that the panel and the complainer had willingly engaged in a fight with one another and that therefore the crime of assault had not been committed. The Sheriff directed the jury, inter alia, that there was no relevant evidence to support the special defence and that even if the jury found that the complainer had agreed to take part in a fight with the panel, consent was not a defence to the crime libelled.
Held that there had been no misdirection because an attack upon a person made with the intent to injure and do bodily harm is a criminal assault even where the person attacked was willing to take the risk of that attack; and appeal refused.
Observed that "it is in the public interest that it should be decided and made known that consent to a “square go” is not a defence to a charge of assault based on that agreed combat."
Statement in Gordon's Criminal Law, 1st ed. at page 774disapproved.
William Smart was charged on an indictment which set forth that he assaulted Isaac Wilkie by kicking him on the private parts, punching and kicking him about the head and body, pulling out his hair and biting him on the left arm to his injury.
The panel was tried by Sheriff (M'Lean) and a jury at Paisley on 4th October 1974.
The solicitor for the panel, at the conclusion of the evidence, moved the Court to direct the jury to find the panel not guilty in respect that the case was not a case of assault but a case of two men willingly engaged in a fight with one another to which they had consented and that therefore no crime of assault had been committed. The Sheriff declined to do so and charged the jury, inter alia, in the following terms:—
"… The essence of the crime of assault is that there should be in the mind of the assailant a malicious and wicked intention to injure the victim …
"Now something has been said about consent. I direct you in law that consent—if you in fact were to find that Wilkie had consented in some way to this assault—then that would not be a defence … if the act is criminal it cannot lose its criminal character because the victim consented, and the reason is not far to seek. It is that the essence of the crime of assault lies in the mind of the assailant and not in the mind of the victim. …
"Now, ladies and gentlemen, what you have to decide is whether or not the accused did these acts and secondly whether or not he had a malicious and wicked intention to injure Mr...
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Attorney General's Reference (No. 6 of 1980)
...against true cases of public disorder, as do the common law offences of affray, etc. Nor have we followed the Scottish case of Smart v. H.M. Advocate (1975) Scots Law Times 65 holding the consent of the victim to be irrelevant on a charge of assault, guilt depending upon the "evil intent" o......
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...his findings in fact and explanatory note. The appellant relied upon the following authorities in support of her submission:- · Smart v HMA 1975 JC 30 [Tab 39] · Clark v Service 2011 SCL 809 [Tab 43] · McLean v Jessop 1989 SCCR 13 [Tab 44] · Ross v HMA 1991 SC 201 [Tab 42] · Petto v HMA 201......
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...form of “general mens rea”66Gordon, Criminal Law (n 5) paras 7.02, 7.08, 7.47 and 7.60. and the mentes reae of “evil intent”,77Smart v HMA 1975 JC 30. Cf Lord Advocate's Reference (No 2 of 1992) 1993 JC 43; Gordon, Criminal Law (n 5) para 29.30. “wicked intention”88Drury v HM Advocate 2001 ......
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