Scottish High Court of Justiciary Decisons

The opinion of the Court was delivered by the Lord Justice-Clerk on 24th January 1975.

LORD JUSTICE-CLERK (Wheatley).—The applicant was found guilty by a majority verdict of the jury of a charge of assault. The charge libelled was that he assaulted Isaac Wilkie, kicked him on the private parts, punched and kicked him about the head and body, pulled out his hair and bit him on the left arm to his injury.

The argument in support of the application proceeded on the basis that the applicant had invited Wilkie to have a "square go" and that Wilkie consented to this. There was evidence, said to be disputed by the applicant, that Wilkie had been invited on several occasions to have a "square go" before he finally consented. It is not necessary in our view to have regard to this allegation to determine the issues canvassed before us.

Two lines of defence were submitted at the trial. The first was that since Wilkie had consented to fight with the applicant the latter could not be guilty of assault in respect of his actions in that combat by consent. The second was that since the applicant had tabled a special defence of self-defence, that special defence should have gone to the jury. In the course of his charge to the jury the presiding sheriff refused to give effect to these submissions. In relation to the first point he said:

"This is a charge of assault and assault as the law defines it is an attack upon the person of another whether it injures or not. It has been said often by judges and it is in my opinion certainly of the law that 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. You could not convict William Smart in this case unless you were satisfied of two things and the first is that he did impose these acts libelled, and you must be satisfied beyond reasonable doubt. The second thing is that at the time in his mind there was a wicked and malicious intention to injure.

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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 which Mr Hamilton could bring in aid of his client. Because, 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. If we had in every case or in cases such as these to go into what in fact the victim consented to, the cases would never be done. You would have to find out whether they consented to a choice of weapons; what degree of injury would the victim consent to. He might, for example, consent to being punched on the nose but not to have a bruise on his leg, so the situation here is a comparatively simple one for you, ladies and gentlemen.

"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 Wilkie when he did so. If two persons join in going to a park to have what is called a ‘square go’ with the intention of inflicting injury on each other, then each can be quite competently charged with the crime of assault because the essence of what they have done to each other is to cause injury with the intention of doing so." All that he said in relation to the second point was this:

"A plea of self-defence has been lodged but there is no relevant evidence to support self-defence, so you put the question of self-defence out of your minds."

Normally it could only be determined on the evidence whether such a direction was justified, but as this case was presented it appeared that the self-defence founded on was simply that the applicant was participating in an agreed-upon fight and that anything he did was done either to get the better of his opponent or to defend himself against the attack of his opponent. These arguments were repeated by counsel for the applicant at the hearing of the application. For support of his first contention, based on the parties' consent to fight, Mr Smith said that there was a complete dearth of authority, and he relied principally on a passage in Gordon's Criminal Law at page 774 where the learned author says:

"If A and B decide to fight each other they cannot be guilty of assaulting each other, so long as neither exceeds the degree of violence consented to or permitted by law."

The author then goes on to say:

"Where the assault does not involve another crime the position appears to be that consent is a good defence provided that not more than a certain degree of injury is caused (cf. R. v. Donovan 1934 2 K.B. 498). What that degree is is undecided and unknown. Consent is not a defence to the charge of murder (H.M.A. v. Rutherford 1947 J.C. 1), and the ratio of H.M.A. v. Rutherford, that the attitude of the victim is irrelevant, was applied in the unreported case of Ian Gordon Purvis (1964) to exclude a defence of consent in a charge of an assault with a knife to the danger of the victim's life. But it is submitted that consent is a defence to minor assaults whether inflicted for sexual, sporting or other purposes."

We have quoted these passages at length because they represent in effect the argument presented by the applicant's counsel. Leaving aside the question of what constitutes a minor assault, the apparent contradiction in the two passages quoted, and whether the ejusdem generis rule applies to his illustrations, we are of the opinion that the conclusion which Professor Gordon reaches and the submission which he makes are wrong.

An assault is an attack on the person of another. Evil intention is of the essence of assault (Macdonald, Criminal Law, 5th ed., 115). This was reiterated by Lord Justice-Clerk Cooper (as he then was) in H.M.A. v. Rutherford, 1947 J.C. 1 at 6. That is what the presiding sheriff said in the present case in the passage in his charge which we have quoted. Lord Cooper said that consent was not a defence in a case of murder or culpable homicide. In this he was following the view of Baron Hume in his treatise on Crimes, Vol. 1, at page 230. This view was followed in Purves (High Court, Edinburgh, February 1964, unreported) in regard to an assault with a knife to the danger of life. Is there any justification for applying this line of authority to serious assaults but not to minor assaults? In our opinion there is not. Apart from the obvious difficulty of knowing where to draw the line there is nothing in principle to justify the distinction. If there is an attack on the other person and it is done with evil intent, that is, intent to injure and do bodily harm, then in our view the fact that the person attacked was willing to undergo the risk of that attack does not prevent it from being the crime of assault. If A touches B in a sexual manner and B consents to him doing so (and there is nothing else involved which would constitute a crime under statute or at Common Law) there is no assault because there is no evil intention to attack the person of B. So too if persons engage in sporting activities governed by rules, then, although some form of violence may be involved within the rules, there is no assault because the intention is to engage in the sporting activity and not evilly to do harm to the opponent. But where the whole purpose of the exercise is to inflict physical damage on the opponent in pursuance of a quarrel, then the evil intent is present, and consent is elided. This view consists with the English view as expressed by Swift J. in giving the judgment of the Court in R. v. Donovan [1934] 2 K.B. 498 at 506 et seq. This was recognised in the case of duelling when the intention of the participants was to kill the opponent, and we see no reason why it should be different when the duellists have the evil intent of inflicting physical injury on the opponent.

In the circumstances of this case as explained to us we are of the opinion that the sheriff was fully justified in directing the jury that there was no relevant evidence to support the plea of self-defence. It is accordingly unnecessary for us to consider the broader question of whether self-defence could ever be a defence in the case of a combat which started by consent.

The applicant's counsel sought to invoke a further argument from the civil law and submitted that the maxim volenti non fit injuriashould apply to a case like this and result in an acquittal. In our view, the reasons for rejecting consent as a defence equally dispose of this submission. It follows that the criticisms of the directions in law given by the presiding sheriff in the circumstances of this case are not well founded and that the application must be refused.

Before parting with the case we wish to make one final observation. It is said that the consent was to have a "square go." There is no definition, classical or otherwise, of the phrase, and it seems unlikely that any normal person would consent to a fight which could legitimately involve what is contained in the charge, but for the purposes of the argument we accepted that Wilkie did so. We are only too aware of the prevalence of what is alleged to be a "square go" in one form or another, often leading to serious results. Accordingly, apart from the private interests involved in this case, 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.