Assault and the Law

Legal Meaning of Assault

Thus the criminal law has defined assault as an attack on the person of another if it is done with evil intent.

 Attack Constitutes the Actus Reus.

‘An assault is an attack on the person of another’

This statement reflects the modern view that an attack constitutes the actus reus of the crime.

Meaning of ‘attack’

The meaning of ‘attack’ has never been authoritatively determined by the criminal law. The notion of attack is fundamental to an understanding of the actus reus of assault. Perusal of reported cases suggests that an attack may be defined as personal, aggressive, physical conduct on the part of one individual which is aimed at the person of another and which causes the victim immediate physical injury, or is likely to cause such injury, or causes him immediate fear and alarm for his personal safety. Whilst it is often correctly emphasised that injury to the victim is unnecessary, assault is a crime of real injury. It follows that fear for one’s personal safety refers to the fear that one may be physically injured.

It is essential that there be some physical conduct on the part of the accused. The conduct may be accompanied by aggressive language, but it is currently accepted that ‘mere words cannot constitute assault’. There is, however, no Scottish authority to support the proposition, and the matter has not been tested in the Scottish courts. In England, the opinion has been expressed that ‘there seems no logical reason why mere words should not amount to an assault’. But threats to commit significant injury are themselves criminal in Scots law, and it seems unlikely that the logic of the matter will ever be put to the test.

Conduct may be of any physical kind provided it is designed immediately to injure the person at whom it is aimed or, at the very least, to put him into a state of fear and alarm for his personal safety.

Mens Rea

General

The mens rea of assault in Scots law is presently in a state of some confusion. The authorities suggest that the mens rea may be an evil intention to injure and do bodily harm, a simple intention to injure and do bodily harm, an intention to put the victim in a state of alarm, a constructive intention to injure, or recklessness

Evil intention

Evil intention has often been advanced as the mens rea of assault. The phrase ‘evil intention’ means the evil intent to injure and do bodily harm.

Defences to Assault

Entitlement in the execution of duty

Some persons by virtue of the duties of their employment are entitled to use reasonable physical force against others, and, in such cases, no assault will have been committed provided the degree of force used was not excessive in the circumstances. Police officers and prison warders  and ships’ officers have such entitlement.

Police constables in Scotland have common law powers of arrest, search and fingerprinting and thus the undoubted entitlement to use reasonable force in implementation of these powers. They also have statutory detention powers which carry the right to use reasonable force. But excessive force used against prisoners or detainees will result in conviction for assault. Customs officers enjoy similar detention powers and entitlement to use force.

Entitlement by reason of self-defence

If a person is suddenly attacked by another, then naturally he may defend himself, and the violence, which he metes out to his attacker, will not be considered as an assault provided there was no cruel excess in the manner of it. It is not necessary for the defender to weigh the matter exactly and take care that he uses no greater force than the degree of violence offered to him. It is a matter of common sense for the court or jury. If there is a gross imbalance between the attacking violence and the defensive measures as where blows with the fist are met by knife thrusts, or if defensive measures become offensive ones as where the attacker is disabled yet the defender maintains the conflict, conviction for assault will inevitably follow, subject to any mitigation of punishment which provocation may allow. It is usually assumed that the person attacked must have had no alternative but to defend himself instantly by force, but it does not appear that this matter receives much consideration where self-defence is pled in response to an assault. It is not the case, however, that a verbal assault can lead to a situation where violence could be justified by way of defence. If the accused made an erroneous assumption that he was about to be attacked, he can succeed in a plea of self-defence provided his belief was reasonable and based on reasonable grounds. It has not yet been determined whether such a belief honestly held but not based on reasonable grounds is sufficient. It has been decided, however, that third parties may go to the aid of a person who is attacked and be justified in defending him by force, and also that a person may defend himself against unlawful detentions or searches by the police.